The Individuals with Disabilities Education Act (IDEA): Selected Judicial Developments Following the 2004 Reauthorization

May 4, 2011 (R40521)

Contents

Summary

The Individuals with Disabilities Education Act (IDEA) is the major federal statute for the education of children with disabilities. IDEA both authorizes federal funding for special education and related services and, for states that accept these funds, sets out principles under which special education and related services are to be provided. The cornerstone of IDEA is the principle that states and school districts make available a free appropriate public education (FAPE) to all children with disabilities. IDEA has been the subject of numerous reauthorizations; the most recent reauthorization was P.L. 108-446 in 2004. Congress is currently beginning the process of identifying potential issues for the next reauthorization. Some of the issues raised by judicial decisions include the following:

This report examines the Supreme Court decisions, and selected lower court decisions since July 1, 2005, the effective date of P.L. 108-446.


The Individuals with Disabilities Education Act (IDEA): Selected Judicial Developments Following the 2004 Reauthorization

Introduction

The Individuals with Disabilities Education Act (IDEA)1 is the major federal statute for the education of children with disabilities. IDEA both authorizes federal funding2 for special education and related services3 and, for states that accept these funds,4 sets out principles under which special education and related services are to be provided. The requirements are detailed, especially when the regulatory interpretations are considered. The major principles include the following requirements:

IDEA was originally enacted in 1975 in response to judicial decisions holding that when states provide an education for children without disabilities, they must also provide an education for children with disabilities.6 IDEA has been the subject of numerous reauthorizations; the most recent reauthorization was P.L. 108-446 in 2004. P.L. 108-446 included specific authorizations for appropriations through 2011.7 Congress is currently beginning the process of identifying potential issues for the next reauthorization.8 This report examines the Supreme Court decisions, and selected lower court decisions since July 1, 2005, the effective date of P.L. 108-446.9

Definition of Disability

A key component of IDEA is the definition of a child with a disability. Unlike the definitions of disability in the Americans with Disabilities Act (ADA)10 and Section 504 of the Rehabilitation Act,11 the IDEA definition is categorical, not functional, and contains a requirement that the child needs special education and related services. The IDEA definition states the following:

CHILD WITH A DISABILITY.—''(A) IN GENERAL.—The term 'child with a disability' means a child—''(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title as 'emotional disturbance'), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and ''(ii) who, by reason thereof, needs special education and related services.12

In Hansen v. Republic R-III School District,13 the court examined whether a child who had been diagnosed with conduct disorder, bipolar disorder, and attention deficit hyperactivity disorder (ADHD) was a child with a disability under IDEA. Finding that the child met the IDEA definitional categories of serious emotional disturbance and other health impairments, the court noted that the child was not "merely socially maladjusted" but struggled to pass his classes and standardized tests. Similarly, the child was found to have a diagnosis of ADHD and his educational performance was affected by the condition.

The need for special education and related services was key in other court decisions. Several courts of appeal decisions have examined whether a child who falls within one of the categories of disabilities but whose disability may have a minimal effect on education is a child with a disability and thus covered by IDEA. In L.I. v. Maine School Administrative District No. 55,14 the First Circuit Court of Appeals found that a child with Asperger's Syndrome and an adjustment disorder with depressed mood was a child with a disability under IDEA even though she had high grades, generally non-disruptive behavior, and "undisputed intellectual ability." The court rejected the argument that IDEA is limited to children whose disabilities "significantly impact educational performance," noting that neither the statute nor its regulations contain this limiting language.15 Similarly, in Board of Education of Montgomery County v. S.G.16 the school argued that a child with schizophrenia was not a child with a disability because the disability did not adversely affect her school performance. The Fourth Circuit Court of Appeals rejected this argument after finding that the child had missed a substantial amount of school due to hospitalizations, failed to complete many of her assignments, and, if returned to the public school environment, would most likely be hearing voices again.

On the other hand, the Ninth Circuit in R.B. v. Napa Valley Unified School District17 held that a child with ADHD, depression, reactive attachment disorder, and post traumatic stress disorder who exhibited violent tendencies was not eligible for IDEA services since her inappropriate behavior did not adversely affect her educational performance. The fact that the child received a Section 504 plan and behavioral supports did not make her eligible under IDEA. In Alvin Independent School District v. AD,18 the Fifth Circuit also found no adverse educational effect from the child's ADHD. Mr. and Mrs. N.C. v. Bedford Central School District19 examined whether a child with dysthymic disorder met the requirements of the IDEA regulations for seriously emotionally disturbed and found that the child's behavior fell short of the requirements for seriously emotionally disturbed. The Second Circuit also noted that even if the child qualified as seriously emotionally disturbed, there was insufficient evidence that his educational performance was adversely affected.20

Child Find

IDEA requires that in order to receive funds under the statute, a state must submit a plan to the Secretary of Education indicating that a state has certain policies and procedures in effect. Among these is the requirement that all children with disabilities and who are in need of special education, are identified, located, and evaluated.21 This requirement is referred to as child find. Although this requirement has not been heavily litigated, the ninth circuit held in Compton Unified School District v. Addison22 that a school district who failed to evaluate a ninth grader who failed all her classes, colored with crayons and played with dolls in class failed to meet IDEA's child find requirement and that such a failure could be the subject of a due process complaint. Although the Supreme Court has not yet made a determination regarding whether the case will be heard, the Court did ask the Department of Justice for its views on the issue.23 The issue as presented to the Court is whether the parent of a child with a disability has a right to a due process hearing alleging negligence because of school officials' failure to arrange an educational program for the child, or if due process suits are only allowed when the school district makes an intentional decision.

Free Appropriate Public Education (FAPE)

Statutory Provision

The core requirement of IDEA is that a state must provide children with disabilities a free appropriate public education in order to receive federal funding under the act.24 FAPE is defined in the statute as meaning "special education and related services that—(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 614(d)."25

Supreme Court Decision in Rowley

A seminal decision on the requirements of FAPE, Board of Education of the Hendrick Hudson Central School District v. Rowley,26 decided in 1982, was the first IDEA case to reach the Supreme Court. The Supreme Court noted that there was no substantive language in IDEA regarding the level of education to be accorded to children with disabilities and observed that "(i)mplicit in the congressional purpose of providing access to a 'free appropriate public education' is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child."27 The Court concluded that "the 'basic floor of opportunity' provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child."28 The Court held that the requirement of FAPE is met when a child is provided with personalized instruction with sufficient support services to benefit educationally from that instruction. This instruction must be provided at public expense, meet the state's educational standards, must approximate the grade levels used in the state's regular education, and must comport with the child's IEP. The Court found that when a child with a disability is mainstreamed, "the system itself monitors the educational progress of the child.... The grading and advancement system thus constitutes an important factor in determining educational benefit."29 Therefore, the IEP "should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade."30 However, the states are not required to "maximize" each child's potential.31 If the child is progressing from grade to grade and making measurable and adequate gains, the FAPE requirement is met.

The Supreme Court also stated that in ensuring that the requirements of the statute have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the states. The primary responsibility for formulating the education provided was left by IDEA to state and local educational agencies.32 As the Court noted, determining when children with disabilities are "receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem"33 than complying with requirements for access to education. Because of the wide spectrum of disabilities, the Court did not attempt to establish any one test for determining the adequacy of educational benefits and confined its analysis to the facts of the case.

Lower Court Decisions

Rowley remains a key decision under IDEA and is often cited by courts attempting to determine the parameters of a free appropriate public education.34 However, the lower courts have varied in how expansively they have interpreted Rowley, with some courts interpreting Rowley to support schools' IEPs if the procedural requirements have been met, even if the educational progress is minimal. For example, in Fort Zumwalt School District v. Clynes,35 the Eighth Circuit emphasized Rowley's "access to education" requirement and held that the IEP was adequate. The court noted that the child was making progress, earning passing marks and advancing to the next grade, despite reading proficiency scores in the second to ninth percentile. However, the dissenting opinion described the child's achievement as "trivial" and argued that "(t)his cannot be the sort of education Congress had in mind when it enacted IDEA."36 Some courts have emphasized that IDEA requires the provision of educational services and medical services, particularly mental health needs, are not covered.37

Other courts have read Rowley more expansively. For example, in Polk v. Cent. Susquehanna Intermediate Unit 16,38 the Third Circuit examined the "some educational benefit" language in Rowley and held that it required an IEP to provide more than de minimis educational benefit.39 Similarly, the Fifth Circuit, in Cypress-Fairbanks Indep. School District v. Michael F.,40 quoted from Rowley and concluded that "the educational benefit that an IEP is designed to achieve must be meaningful."41 In order to determine whether an IEP meets this standard, the Cypress-Fairbanks court identified four factors: (1) the program is individualized; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner; and (4) positive academic and nonacademic benefits are demonstrated.42 Other courts have looked at academic achievement testing, as well as grades, to measure educational benefit. For example, in Falzett v. Pocono Mountain School District,43 the court found that, despite allegations of missed days and limited curriculum, a student whose SAT scores improved and who received excellent grades, qualifying him for the Junior National Honor Society, had received FAPE under IDEA. However, in Ringwood Board of Education v. K.H.J.,44 the Third Circuit found that when a child has above average intellectual ability IDEA requires more than a negligible benefit, and noted that "expecting a child with 'above average' intelligence to perform in the 'average' range hardly qualifies as 'maximizing' that child's potential."45

Procedural or other violations do not always give rise to a violation of FAPE.46 Generally, procedural violations must affect the child's substantive rights.47 For example, FAPE has been found to require that services mandated by an IEP be implemented as soon as possible after the IEP development, not immediately or within 30 days.48 Similarly, inaccessible facilities do not necessarily violate FAPE if there is general program accessibility.49 In addition, FAPE has been found not to be violated when a resolution session is improperly convened if there was not substantial effect on the child's educational opportunities.50 However, certain procedural violations may be significant enough to be a denial of FAPE. In N.B. and C.B. v. Hellgate Elementary School District,51 the Ninth Circuit held that the school's failure to evaluate a child in all areas of suspected disability was a procedural error that denied FAPE. A denial of FAPE was also found when the LEA unilaterally scheduled an IEP meeting without attempting to reach a mutually agreed upon time with the parents.52

Educational Standards and the No Child Left Behind Act (NCLBA)

The application of the Supreme Court's analysis in Rowley to current controversies is somewhat confused by the change in the usage of the term "educational standards." Although the Supreme Court in Rowley required that the instruction given to a child with a disability meet the state's educational standards, the term "educational standards" has taken on a different meaning in recent years. Currently, the term "educational standards" is likely to refer to specific content-based standards that delineate what a child should know and be able to perform at various points in his or her educational career.

The 1997 Amendments to IDEA53 reflected the standards-based education movement. P.L. 105-17 significantly changed the IEP requirements and required that the IEP include, among others, a statement of the child's present levels of educational performance, including the effect of the child's disability on the child's involvement and progress in the general curriculum, and a statement of measurable annual goals designed to enable the child to progress in the general curriculum.54 In addition, in the statement of findings for the 2004 reauthorization, P.L. 108-446 states that "[a]lmost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by—(A) having high expectations for such children and ensuring their access to the general curriculum in the regular classroom to the maximum extent possible."55

Given the fact that the standards-based education movement, as reflected in IDEA and the No Child Left Behind Act (NCLBA),56 has changed the standards from what was required in the version of the law the Supreme Court interpreted in Rowley, questions have been raised concerning the current application of Rowley. Parents of students with disabilities have argued that FAPE requirements have been changed by NCLBA in several cases but have not been successful.57 Similarly, an unsuccessful argument has been made that there is an inherent conflict between IDEA and NCLBA.58

Peer-Reviewed Research

The 2004 Amendments to IDEA include a requirement that specially designed instruction and related services be "based on peer-reviewed research to the extent practicable."59 Commentary to the final regulations indicates that peer-reviewed research "generally refers to research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published."60 Similar to the educational standards issue discussed above, it could be argued that the peer-reviewed research requirement is difficult to reconcile with Rowley's some educational benefit requirement.61

At least one court of appeals has addressed this issue. In Joshua A. v. Rocklin Unified School District,62 the student argued that his IEP violated IDEA because it was not based on peer-reviewed research. The court rejected this argument finding that the school's "eclectic approach" was sufficient and noted that "[w]e need not decide whether District made the best decision or a correct decision, only whether its decision satisfied the requirements of the IDEA."63 The court also emphasized that courts must be careful to avoid imposing their view of preferable educational methods upon the states.

The Individualized Education Program (IEP)

Statutory Provisions

After a child has been identified as a child with a disability under IDEA, an Individualized Education Team is formed to write an individualized education program for the child.64 IDEA contains detailed requirements for the IEP. The IEP must include a statement of the child's present levels of academic achievement and functional performance; a statement of measurable annual goals; a description of how these goals are to be met; a statement of the special education and related services to be provided; and an explanation of the extent to which the child is to be educated with children without disabilities.65 Since the IEP is the way FAPE is implemented, it is a key component of IDEA and has been the subject of numerous judicial decisions. Generally, these cases have adopted the Rowley two-part inquiry: first, the court determines whether IDEA's procedures have been complied with; second, the court determines whether the IEP is reasonably calculated to provide the child with educational benefits.66

Lower Court Decisions

The exact parameters of an IEP have been the subject of several decisions. Generally, an IEP does not have to be "perfect" to be in compliance with IDEA, but must be "reasonably calculated to enable the child to receive educational benefits."67 In School Board of Independent School District No. 11 v. Joshua Renollett,68 the Eighth Circuit court of appeals found that although there were some flaws in the child's IEP, since these flaws did not compromise his right to an appropriate education or deprive him of educational benefits, there was no violation of IDEA.69 Similarly, the Second Circuit in Cabouli v. Chappaqua Central School District70 found that the evidence supporting the adequacy of the IEP, including the child's recent social progress, indicated that the child would likely make educational progress under the IEP and, therefore, there was no violation of IDEA. The lack of a functional behavioral assessment in an IEP does not necessarily mean that the IEP is invalid.71 The Sixth Circuit in Nack v. Orange City School District72 found that procedural violations that did not cause the student any substantive harm were not a violation of IDEA.73 In addition, the court in Nack also held that a lack of progress during one school year does not necessarily indicate an IDEA violation since IDEA does not guarantee success, but requires that a student receive sufficient specialized services to benefit from his or her education.74

On the other hand, courts have found that an IEP which does not provide the child with educational benefits violates IDEA. In A.K. v. Alexandria City School Board,75 the Fourth Circuit held that an IEP which stated that the child should be placed at an unidentified private day school was not reasonably calculated to provide educational benefits and, therefore, was a violation of IDEA. And in M.L. v. Federal Way School District,76 the Ninth Circuit found that not including a regular education teacher on the IEP team resulted in a "loss of educational opportunity" that amounted to a denial of FAPE. However, in R.B. v. Napa Valley Unified School District,77 the Ninth Circuit held that IDEA did not require the participation of the child's current special education teacher as long as a special education teacher who has actually taught the child was present.

The input of parents in an IEP has been the subject of several recent decisions. Generally, courts have held that "the right of parents to control the content of the IEP is limited."78 For example, in Shelby S. v. Conroe Independent School District,79 the Fifth Circuit found that in order to develop an appropriate IEP, the school could perform an independent medical evaluation despite a lack of parental consent. And in Lessard and Lessard v. Wilton-Lyndeborough Cooperative School District and New Hampshire Department of Education,80 the First Circuit held that an IEP was not procedurally deficient due to incompleteness and noted, "[l]ine-drawing is often difficult, and in the IEP context it is impossible to draw a precise line separating healthy requests for parental input from impermissible demands that parents do the school system's work."81

Despite the limited control of parents over the IEP, courts have found for the parents in IEP cases. For example, in County School Board of York County v. A.L.,82 the Fourth Circuit found that a lack of prior notice to a proposed IEP change and a failure to inform the parents of their due process rights violated IDEA. Similarly, a finding that the school district determined the child's placement before the IEP meeting was found to violate IDEA's procedural requirements.83 A school's scheduling of an IEP meeting without first inquiring about the parents' availability and the school's denial of the parents' request to reschedule was found to deny the student FAPE.84

Related Services

As noted above, IDEA's requirement of a free appropriate public education is the cornerstone of the act. FAPE is defined in part as requiring "special education and related services."85 Related services are defined as meaning

transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposed only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.86

Two Supreme Court decisions under IDEA have involved the concept of related services, and both have involved the issue of what is a medical service. In Irving Independent School District v. Tatro,87 the Court examined the case of an eight-year-old girl with spina bifida who required clean intermittent catheterization (CIC), and held that the school must provide the service. The Court held that services affecting both the medical and educational needs of a child must be provided under IDEA if (1) the child has a disability so as to require special education; (2) the service is necessary to help a child with a disability benefit from special education; and (3) a nurse or other qualified person who is not a physician can provide the service. Services that could be provided outside the school day would not need to be provided. Tatro drew a bright line between services that had to be provided by a doctor and those that could be provided by a person who was not a physician. However, after Tatro, some courts of appeal did not apply this bright line but used other factors, such as the nature and extent of services. This set the stage for another Supreme Court decision in 1999, Cedar Rapids Community School District v. Garret F.88

Garret F. involved a child who was paralyzed from the neck down as a result of a motorcycle accident when he was four years old. Since the child was ventilator dependent, he required substantial services including providing suction on his tracheotomy tube and manually pumping air through an air bag when suction is being provided. The school denied the parents' request for services, and proposed a test for related services in which the outcome would depend on a series of factors, such as whether the care was continuous and the cost of the services. The Court rejected this proposed test and used the same reasoning it had used in Tatro, finding that the medical services exclusion from the definition was limited to the services of physician or a hospital. This holding, the Court stated, was in keeping with the overarching purpose of IDEA "to open the door of public education to all qualified children."89

The 2004 reauthorization dealt with this issue by establishing risk pools for high-need children with disabilities.90 States are permitted to reserve 10% of the funds reserved for other state activities (or 1% to 1.05% of the overall state grant) to establish and maintain a risk pool to assist LEAs serving high-need children with disabilities. Related services have not given rise to a large number of recent IDEA cases. Generally, the cases have emphasized the broad discretion of a federal court to define what services are required to enable a child with a disability to benefit from special education, and have applied the Tatro analysis.91

Least Restrictive Environment

IDEA requires that children with disabilities, to the maximum extent appropriate, be educated with children who are not disabled and that separate schooling or special classes occur only when the nature or severity of the disability is such that "education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."92

Several recent courts of appeal decisions have followed a two-pronged approach, first enunciated in Daniel R.R. v. State Board of Education,93 to determine whether an IEP places a student in the least restrictive environment. First, a court must consider whether education in the regular classroom with the use of supplementary services can be achieved satisfactorily. Second, if such placement cannot be achieved satisfactorily, the court must consider whether the school has mainstreamed the child to the maximum extent appropriate. The first prong includes several factors: whether the school district has made reasonable efforts to accommodate the child in the regular classroom; the educational benefits available to the child in the regular classroom as compared to those in a special education classroom; and the possible negative effects of the inclusion of the child on other students in the regular classroom.94 In A.G. v. Durtan,95 the Third Circuit examined the effect of the child with a disability on other students, noting the student's frequent, loud vocalizations, combined with removal of shoes and socks, inappropriately clapping and grinding her teeth, having difficulty toileting, and inappropriately touching other students. Although these disruptions were not considered dispositive, the court considered them notable and upheld the district court decision that the student could not be satisfactorily educated full time in a regular classroom.

Stay Put

In enacting P.L. 94-142, the original version of IDEA, Congress provided grants to the states to help pay for education for children with disabilities, and also delineated specific requirements the states must follow to receive these federal funds. This public law contained a requirement that if there is a dispute between the school and the parents of a child with a disability, the child "stays put" in his or her current educational placement until the dispute is resolved using the due process procedures set forth in the statute. The concept of "stay put" was placed in the statute to help eliminate the then common discriminatory practice of expelling children with disabilities from school. A revised "stay put" provision remains as law in the current version of IDEA.96

In 1988, the question of whether there was an implied exception to the "stay put" rule was presented to the Supreme Court in Honig v. Doe.97 Honig involved emotionally disturbed children, one of whom had choked another student with sufficient force to leave abrasions on the child's neck and who had kicked out a window while he was being escorted to the principal's office. The other child in the Honig case had been involved in stealing, extorting money, and making lewd comments. The school had sought expulsion, but the Supreme Court disagreed finding that "Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school."98 However, the Court observed that this holding did "not leave educators hamstrung.... Where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days.... And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under section 1415(e)(2), which empowers courts to grant any appropriate relief."99 This statement about the school's right to seek judicial relief has come to be know as a Honig injunction.

The Supreme Court's interpretation of IDEA in Honig did not quell all concerns about discipline and children with disabilities. In 1994, Congress amended IDEA's "stay put" provision to give schools the unilateral authority to remove a child with a disability to an interim alternative educational setting if the child was determined to have brought a firearm to school. This provision was expanded in the IDEA Amendments of 1997 to include weapons (not just firearms) and drugs, and was further expanded in the 2004 reauthorization to include situations where a student has inflicted serious bodily injury upon another person while at school.

Not all issues regarding the stay put provisions have involved disciplinary actions. Several courts have addressed the issue of whether the stay put requirement applies when a child is transitioning from Part C of IDEA to Part B. Part B of IDEA applies to school-aged children and requires the provision of FAPE as delineated in an IEP; Part C of IDEA applies to infants and toddlers and requires the provision of appropriate early intervention services as set forth in an individualized family service plan (IFSP). Rejecting an opinion by the Office of Special Education Programs (OSEP) of the Department of Education,100 the Third Circuit in Pardini v. Allegheny Intermediate Unit101 held that the stay put provision requires the child "to continue to receive conductive education until the dispute over its appropriateness for inclusion in her IEP was resolved."102 However, the Eleventh Circuit in D.P. v. School Board of Broward County103 disagreed, finding that the children in that case were applying for initial admission to a public school program and that they were not entitled to continue to receive services pursuant to their IFSPs.

Other issues regarding the stay put provision have involved mediation, private school placement, a move from a resource room to a classroom, and the appeals process in the courts. Sammons v. Polk County School Board104 raised the issue of whether a request for mediation invokes the stay put provision. The Eleventh Circuit held that the IDEA regulations105 limited the application of the stay put provision to the pendency of administrative or judicial proceedings and, therefore, it was not applicable to a request for mediation. In L.M. v. Capistrano Unified School District,106 the Ninth Circuit held that a child who had not had an implemented IEP, and had never been placed in a public school, but was unilaterally placed in a private school by his parents, could not use the stay put provision to continue private school placement. Similarly, although the IEP team recommended that a child be placed in a private school in the fall, when the district contested the IEP teams recommendation, the court in E.Y. v. Elysian Charter School of Hoboken held that the placement where the child was to "stay put" was the placement for the preceding school year.107 A child's relocation from a resource room to an inclusion classroom was not found to constitute a change in placement within the meaning of the stay put provision.108 In Joshua A. v. Rocklin Unified School District,109 the Ninth Circuit held that the stay put provision applied throughout the appeals process in the courts.

An attempt to apply a novel application of the stay put provision failed in N.D. v. State of Hawaii.110 Due to major fiscal concerns, the state of Hawaii decided to furlough teachers and shut down the public schools for 17 Fridays in the 2009-2010 school year. Since this meant an approximate reduction of 10% in instruction days, plaintiffs filed suit, alleging that this reduction violated the stay put provision of IDEA. The Ninth Circuit found no violation, holding that the stay put provision was not intended to cover system-wide changes in public schools that affect children with and without disabilities.111

Seclusion and Restraints

The use of seclusion and restraints has been the subject of increased congressional interest, and on March 3, 2010, the House passed H.R. 4247, the "Keeping all Students Safe Act." A similar bill, S. 2860, was introduced in the Senate.112 IDEA provides that when the behavior of a child with a disability impedes the child's learning or the learning of others, the IEP team must consider "the use of positive behavioral interventions and supports, and other strategies, to address that behavior."113 Nothing in IDEA specifically addresses the use of seclusion and restraints, and the Department of Education has stated that "[w]hile IDEA emphasizes the use of positive behavioral interventions and supports to address behavior that impedes learning, IDEA does not flatly prohibit the use of mechanical restraints or other aversive behavioral techniques for children with disabilities."114 The Department also noted that state law may address whether restraints may be used and, if restraints are allowed, the "critical inquiry is whether the use of such restraints or techniques can be implemented consistent with the child's IEP and the requirement that IEP Teams consider the use of positive behavioral interventions and supports when the child's behavior impedes the child's learning or that of others."115

The Supreme Court has not specifically addressed the use of seclusion or restraints under IDEA; however, in Honig v. Doe,116 the Court examined IDEA's requirements for children who exhibited violent or inappropriate behavior, and held that a suspension longer than ten days violated IDEA's "stay-put" provision.117 In Honig, the Court observed that this decision "does not leave educators hamstrung" and that educators may utilize "normal procedures" which "may include the use of study carrels, timeouts, detention, or the restriction of privileges" as well as a ten-day suspension.118

Despite the lack of specific language in IDEA regarding the use of restraints and seclusion, cases have been brought alleging that their use violates a child's right to a free appropriate public education.119 Generally, courts have not found violations of IDEA where the seclusion or restraint was deemed necessary to keep the child from hurting himself or others,120 or where the child was progressing academically and the school had tailored the child's IEP to address behavioral issues.121 Courts have examined whether the administrative exhaustion requirements of IDEA apply in situations involving the use of seclusion and restraint. In C.N. v. Willmar Public Schools,122 the child's IEP and behavior intervention plan allowed for the use of seclusion and restraint procedures when the child was a danger to herself or others; however, the parents alleged that these procedures were used improperly and excessively. The parents withdrew their daughter from the school and placed her in another school. After her withdrawal, the parents requested a due process hearing, challenging the adequacy of the educational services. The Eighth Circuit affirmed the district court's dismissal of the case, finding that if the parent was dissatisfied with the child's education, she must follow the IDEA due process procedures and file for a due process hearing while the child was still in the school district against which the complaint was made.123

In contrast, IDEA has been used by parents in an attempt to enjoin enforcement of a New York State regulation that banned the use of "aversive interventions."124 Parents argued in part that "some students' IEP's were being revised without parental consent or simply not revised for the new school year, the effect of which was to deprive those students of aversive therapies."125 The Second Circuit vacated the district court's injunction against the regulation and remanded for further findings. On remand, the district court upheld the regulations finding that "the regulations represent an informed, rational choice between two opposing schools of thought on the use of aversives…. [T]he regulations are neither arbitrary nor capricious, and are consistent with the purposes of the IDEA."126

Retaliation and Harassment

Although harassment is not explicitly prohibited in IDEA, the Department of Education has stated that disability harassment may result in a denial of FAPE.127 Several courts have held that harassment may be so severe that the child with a disability is denied access to educational benefits and that, therefore, IDEA is violated.128 However, at least one court has found that the claim of harassment must be tied to IDEA and should clearly state that the harassment has denied the child FAPE.129 In addition, another court held that claims regarding retaliation are subject to IDEA's requirements for exhaustion of administrative remedies.130

The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act131 may also give rise to actions alleging retaliation for advocacy alleging violations of IDEA. Several circuits have held that "attempting to protect the rights of special education students constitutes protected activity under the Rehabilitation Act."132

Due Process Procedures

Overview

Section 615 of IDEA provides detailed procedural safeguards for children with disabilities and their parents.133 Procedural safeguards are provisions protecting the rights of parents and children with disabilities regarding a free appropriate public education (FAPE) and include notice of rights, mediation, resolution sessions, and due process procedures. Parents of a child with a disability or a school may file a due process complaint.134 This complaint may only be presented concerning violations that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action.135 The 2004 reauthorization added the provision allowing schools to also file complaints and there have been several instances where a school district has used this authority.136 After an administrative decision, any party aggrieved by the findings may file suit in district court but must do so within 90 days.137

Resolution Sessions and Mediation

In an attempt to resolve issues before the more confrontational due process proceedings, the 2004 reauthorization of IDEA added a requirement for a resolution session prior to a due process hearing. This preliminary meeting involves the parents, the relevant members of the IEP team, and a representative of the local educational agency who has decision making authority. The LEA may not include its attorney unless the parent is accompanied by an attorney.138 Provisions allowing for mediation of disputes under IDEA were added in the 1997 reauthorization139 and retained in the current law.140 In addition, the 2004 IDEA reauthorization provided for judicial enforcement of agreements reached through a resolution session141 or mediation.142

Several judicial decisions have addressed issues regarding the resolution session. One court held that the information disclosed during the resolution session is not confidential since the statute does not specifically confer confidentiality and the resolution session discussions are not settlement discussions.143 Another decision examined the inclusion of a school board attorney when a parent did not have an attorney present, and found that the limitation on the presence of an attorney is only for the preliminary meeting, not for the writing of a settlement decision.144 As noted previously, procedural violations in a resolution session do not violate FAPE if there was not a substantial effect on the child's educational opportunities.145

Several courts have examined the question of whether all settlement agreements are enforceable in federal court or whether judicial enforcement is limited to agreements reached through dispute resolution or mediation. Generally, the courts have held that the statutory language limits judicial enforcement to those agreements reached through dispute resolution or mediation.146

In Amy S. v. Danbury,147 the Sixth Circuit held that mediation agreements signed by the parents, who were represented by counsel, precluded a claim. The parents had alleged that the school had breached the mediation agreement since the agreed upon tutor could no longer transport the child in his car. The court rejected this argument, noting that tutoring services were still available. Similarly, in Ballard v. Philadelphia School District,148 the court rejected an argument by a parent that a settlement agreement was invalid.

Review of Complaint's Sufficiency

IDEA requires that a due process complaint include, in addition to other information, a description of the nature and the problem, the relevant facts, and a proposed resolution of the problem.149 In Knight v. Washington School District,150 a district court addressed issues relating to the review of the hearing officer's determination that a due process complaint did not meet IDEA's pleading requirements. The district court quoted from the Senate report language which stated in part that the determination of whether the due process complaint notice met the statutory requirements "shall be made on the face of the complaint" and "[t]here should be no hearing or appeal in regard to the hearing officer's determination."151 Although finding that it had no jurisdiction to determine the adequacy of the complaint notice, the court noted that this was "an unsatisfying outcome for Plaintiffs" and found it "troubling that a state official's summary dismissal of a complaint founded on federal law, for which federal law provides that applicable standard, appears to be unreviewable in federal court."152 The Eighth Circuit affirmed the district court's dismissal of the action but modified the dismissal to be without prejudice.153

LEA Suits Against the State

Several courts of appeal have addressed the issue of whether an LEA may bring an action against an SEA for its failure to comply with IDEA and found that IDEA does not allow such a private right of action. In Traverse Bay Area Intermediate School District v. Michigan Department of Education,154 the Sixth Circuit held that LEAs did not have statutory authority to challenge a state agency's alleged noncompliance with IDEA's procedural safeguards. Noting that a right to bring suit is created by the text of a statute, the court found that IDEA limited complaints to matters relating to the identifications, evaluation, or educational placement of a child. Similarly, the Ninth Circuit in Lake Washington School District No. 414 v. Washington State Office of Administrative Hearings,155 held that an LEA has no private right of action under IDEA to litigate any issue other than the issues raised by the parents on behalf of their child.

Parental Rights

In Winkelman v. Parma City School District,156 the Supreme Court examined the issue of whether IDEA permits parents who are not attorneys to bring suit in court, either on their own behalf or as representatives of their child. The Court held that such pro se suits were permitted for parents suing with regard to their own rights. In an opinion written by Justice Kennedy, the Court concluded that IDEA grants parents independent, enforceable rights that encompass a child's entitlement to a free appropriate public education, and that these rights are not limited to procedural or reimbursement issues.

In arriving at this holding, Justice Kennedy observed that "a proper interpretation of the Act requires a consideration of the entire statutory scheme." The Court examined IDEA's statutory language, noting that one of the purposes of IDEA is "to ensure that the rights of children with disabilities and parents of such children are protected."157 This language was found to refer to rights for both parents and children with disabilities. Similarly, the Court found that the establishment of procedural rights was required "to ensure that the rights of children with disabilities and parents of such children are protected."158 These provisions were found to support the finding that the parents of a child with a disability have "a particular and personal interest" in the goals of IDEA and that "IDEA includes provisions conveying rights to parents as well as to children."

The rights that IDEA provides for parents were found to encompass not only procedural but also substantive rights. Justice Kennedy observed, "IDEA does not differentiate, through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents." It was argued that granting these rights would increase the costs to the states because parents may bring more lawsuits if they do not have the financial constraint of paying for an attorney. However, the Court found that these concerns were not sufficient to support an argument under the Constitution's Spending Clause that IDEA failed to provide clear notice before a new condition or obligation was placed on a recipient of funds. In addition, Justice Kennedy observed that IDEA specifically allows courts to award attorneys' fees to a prevailing educational agency when a parent has brought an action for an "improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation."159

The Supreme Court's emphasis on a parent's own rights has led courts to conclude that, although a non-attorney parent cannot pursue claims on behalf of his child, he may amend the complaint to assert his own claims.160 In addition, a parent was found to have "personal rights to enforce FAPE" and, thus, survived an attempt to dismiss her claim.161 However, a parent may not use his or her rights in order to circumvent an existing consent decree involving the same issues.162 In addition, the mere assertion that the rights are those of the parents may not be sufficient. In Woodruff v. Hamilton Township Public Schools,163 the Third Circuit found that although the parents had filed an amended compliant purporting to assert their claims only, the claims asserted were not personal to the parents and, therefore, the parents' complaint was properly dismissed.

Parental rights, as determined by Winkelman, have been extended by some courts to cases brought under Section 504 and the ADA as well as IDEA.164 However, not all courts have agreed with this interpretation. In D.A. and M.A. v. Pleasantville School District,165 the court found that Winkelman reflected the specific language and structure of IDEA with its emphasis on parental involvement and was, therefore, not applicable to Section 504 and the ADA.

Other parental rights issues are not as directly tied to the Winkelman decision. The issue of whether a parent could recover damages under IDEA for lost earnings and suffering incurred while successfully pursuing her child's IDEA claim was raised in Blanchard v. Morton School District.166 The Ninth Circuit noted that money damages were not available for a child with a disability, and that "IDEA does not contemplate the remedy Blanchard seeks and in that regard creates no right enforceable under §1983."167 The Second Circuit addressed the issue of the rights of a noncustodial parent in Fuentes v. Board of Education of New York City.168 IDEA defines the term "parent,"169 and the IDEA regulations expand upon the statutory language stating that a parent is presumed to be the parent unless he or she does not have legal authority to make educational decisions for the child.170 The Fuentes court emphasized the regulatory language and found that the noncustodial biological parent did not have the legal authority to make educational decisions.

Section 504 and the Americans with Disabilities Act (ADA)

IDEA is not the only federal statute to address the education of children with disabilities, although it is the most detailed in its provisions. Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) address the rights of individuals with disabilities to education. Although there is overlap, particularly with Section 504 and the ADA, each statute plays a significant part in the education of individuals with disabilities. IDEA, enacted in 1975, is both a grants statute and civil rights statute and requires programs for children with disabilities that are in addition to those available to children without disabilities. Section 504, enacted in 1973, and the ADA, enacted in 1990, are civil rights statutes that prohibit discrimination against individuals with disabilities. Their coverage is similar, and the ADA was modeled on Section 504 and its regulations; however, Section 504 only applies to entities that receive federal financial assistance, while the ADA has broader coverage, not tied to the receipt of federal funds. As noted in D.A. v. Houston Independent School District,171 "[e]xactly what remedies remain under 504 and the ADA for children whose parents are dissatisfied with the school's determinations under IDEA are unclear."172 Although a detailed analysis of the educational coverage of these statutes is beyond the scope of this report,173 it should be noted that several courts have examined issues presented by the interaction of the statutes, noting differences in coverage.174

Burden of Proof

IDEA contains detailed due process requirements to ensure the provision of FAPE. These include the opportunity for an impartial due process hearing.175 However, the statute contains no specific provision relating to which party has the burden of proof in a due process hearing, and the courts of appeal, prior to the Supreme Court's decision in Schaffer v. Weast,176 were split in their interpretations of who bore the burden of proof.

The Supreme Court in the 2005 case of Schaffer v. Weast177 held that the burden of proof regarding an allegedly inadequate IEP in an IDEA due process hearing rests with the party seeking the relief. The Supreme Court, in an opinion by Justice O'Connor, first observed that "absent some reason to believe that Congress intended otherwise, ... we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief."178 Justice O'Connor then examined, and rejected, various reasons advanced to support the argument that the burden of proof should be on the school system. The Supreme Court noted that the most plausible argument advanced by the parents was that, in the interest of fairness, the burden of proof should not be placed on a party when the facts are "peculiarly within the knowledge of his adversary."179 School districts were seen as having a "natural advantage" regarding the information, but Justice O'Connor did not find this to be determinative because "Congress addressed this when it obliged schools to safeguard the procedural rights of parents and to share information with them."180 The Court noted that IDEA provides parents with the right to review records; to have an independent educational evaluation; to have details about options considered by the school district as well as disclosure of evaluations and recommendations; and to receive attorneys' fees in the discretion of a court if they prevail. Justice O'Connor concluded that "[t]hese protections ensure that the school bears no unique informational advantage."181

Remedies

Private Schools

Issues concerning what services are required for children with disabilities placed in private schools, and who is to pay for these services, have been a continuing source of controversy under IDEA.182 Under current law, a child with a disability may be placed in a private school by the local educational agency (LEA) or state educational agency (SEA) as a means of fulfilling the FAPE requirement for the child. In this situation, the full cost is paid for by the LEA or the SEA. A child with a disability may also be unilaterally placed in a private school by his or her parents. In this situation, the cost of the private school placement is not paid by the LEA unless a hearing officer or a court makes certain findings. However, IDEA does require some services for children in private schools, even if they are unilaterally placed there by their parents.183 IDEA, as amended, states in part,

(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT.—If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of the enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.184

The current statutory provisions regarding private schools are the result of several major amendments, and the majority of the Supreme Court decisions on private schools were decided prior to the statutory changes.185 However, two recent Supreme Court cases have addressed the question of whether IDEA allows for tuition reimbursement for parents who placed their child in a private school without ever having received special education from the public school. In the 2007 decision Board of Education of the City School District of the City of New York v. Tom F.,186 the Court, dividing 4-4, allowed an appeals court ruling on private school reimbursement to stand. The court of appeals had held that parents of a child with a disability are entitled to private school reimbursement even though the student had never received special education services from the school district. The Court's per curiam decision did not set a precedent for lower courts, and therefore the issue about whether reimbursement for private school tuition may be made when the child has not received public special education services remained unsettled. On October 15, 2007, the Supreme Court denied certiorari in another case presenting the same issue.187 However, on June 22, 2009, the Supreme Court held in Forest Grove School District v. T.A.188 that IDEA authorized reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school.

Recent lower court decisions have held that if the child is making some educational progress and the public school has provided an IEP calculated to provide for continued progress, the requirements of FAPE are met and the child is not entitled to a private school placement.189 For example, in M.H. and J.H. v. Monroe-Woodbury Central School District,190 the court found that the child's IEP was adequate and, therefore, the parents were not entitled to tuition reimbursement for a private school placement. These same standards have been applied when parents seek to place their child in a private school different from the private school where the school district has placed the child.191 In addition, if a private school does not adequately address the child's educational needs, the court may not require private school tuition reimbursement.192 However, the mere fact that the private school contains a large percentage of children with disabilities does not make it an inappropriate placement despite IDEA's preference for educating children with disabilities in the least restrictive environment.193

Courts have held that reimbursement for private school tuition is barred if parents arrange for private school educational services without notifying the LEA of their problems with their child's IDEA services.194 Reimbursement is also barred if the parents act unreasonably in their relations with the school195 or if the allegation concerns procedural violations that do rise to a level of substantive harm.196 The parents are not barred from private school tuition reimbursement, however, if the child has not previously received special education services.197

Compensatory Education

If a school district is found to have deprived a child with a disability of FAPE, the child may be entitled to private school reimbursement, as was discussed previously, or the child may be entitled to receive compensatory education. Essentially, compensatory education is the award of prospective educational services designed to compensate for a previous inadequate program, and is derived from the 1985 Supreme Court's private school ruling in School Committee of the Town of Burlington v. Department of Education of Massachusetts.198 In Burlington, the Court held that parents who place a child in a private school when the public school program violates FAPE may obtain reimbursement for the private school tuition. Lower courts have used this holding to find that if financial reimbursement is allowed, compensatory services must also be allowed.199

However, allowing such a remedy is not without some ambiguity. Courts have differed in how the award of compensatory education is to be made. Some courts have found that the child is entitled to compensatory education for the same amount of time that appropriate services were withheld.200 Other courts have adopted an "equitable focus" which rejects a day for day approach and emphasizes the need of the student to be appropriately educated under IDEA.201 In addition, the IEP applicable to children receiving compensatory education may also need to provide more services than might be required in a general IEP since the IEP for children receiving a compensatory education must be created to compensate for the denial of appropriate education.202

Section 1983 Actions

Section 1983 authorizes suits against state officials and others acting "under color" of state law for deprivation of rights derived from the "Constitution and laws" of the United States.203 Generally, courts have found that the IDEA procedural remedies must be exhausted prior to the filing of a §1983 action.204 The application of section 1983 with its damages for pain and suffering to IDEA is unclear. Some courts have held that IDEA's statutory scheme does not allow for damages.205 However, other courts have allowed damages.206

Attorneys' Fees

Background

Although the original version of IDEA, P.L. 94-142, contained no specific provision for attorneys' fees, prevailing parties used section 505 of the Rehabilitation Act of 1973,207 or section 1988 of the Civil Rights Attorneys' Fees Award Act,208 to seek fees. However, the Supreme Court in Smith v. Robinson209 held that the only remedies for prevailing parties under IDEA were those contained in that statute. The statute was described as "a comprehensive scheme set up by Congress to aid the States in complying with their constitutional obligations to provide public education for handicapped children."210 The Court further noted that allowing the use of other statutes to provide for attorneys' fees would "be inconsistent with Congress' carefully tailored scheme."211

The Court's decision in Smith v. Robinson was controversial. In response, Congress in 1986 enacted the Handicapped Children's Protection Act, which provided for attorneys' fees under IDEA.212 These provisions were amended in 1997. The P.L. 105-17 amendments allowed the reduction of attorneys' fees if the attorney representing the parents did not provide the LEA with timely and specific information about the child and the basis of the dispute, and specifically excluded the payment of attorneys' fees for most individualized education plan (IEP) meetings. The 2004 IDEA reauthorization, P.L. 108-446, kept many of the previous provisions on attorneys' fees but also made several additions. These include allowing attorneys' fees for the state educational agency (SEA) or the local educational agency (LEA) against the parent or the parent's attorney in certain situations.213

The ADA allows a court, in its discretion, to award attorneys' fees to a prevailing party. In Buckhannon Board and Care Home, Inc., v. West Virginia Department of Human Resources,214 the Supreme Court addressed the "catalyst theory" of attorneys' fees which posits that a plaintiff is a prevailing party if the lawsuit brings about a voluntary change in the defendant's conduct. The Court rejected this theory finding that attorneys' fees are only available where there is a judicially sanctioned change in the legal relationship of the parties.215

Lower Court Decisions

Courts have consistently applied Buckhannon to the attorneys' fees provision in IDEA. In several cases, attorneys' fees have been given to the party who prevailed in administrative proceedings, provided that result was legally enforceable,216 although attorneys' fees have not been awarded for resolution sessions.217 Additionally, attorneys' fees have been given to the prevailing party in judicial proceedings, even if the party prevails because of a dismissal on the merits.218 Attorney fees have also been awarded without a finding of a denial of FAPE when an LEA has misclassified the child's disability.219 However, where a child has not yet been determined to be a child with a disability under IDEA, attorneys' fees have not been awarded, even where the fees were sought for a failure to refer for assessments to determine eligibility and failure to identify the child as a child with a disability.220

Courts will only award attorneys' fees for relief obtained through a settlement agreement if that agreement received judicial approval.221 Attorneys' fees will not be awarded for voluntary settlements222 or purely private settlement agreements223 that are not judicially sanctioned or do not require judicial approval to take effect. Also, in Drennan v. Pulaski County Special School District,224 a party was not awarded attorneys' fees when it had not performed certain duties that were ordered by the court as a precondition of receiving relief from the school district. Attorneys' fees also will not be awarded to parties for representation by consultants225 or by parent-attorneys.226 However, attorneys' fees may be awarded to relatives other than parents, such as a grandparent.227

Courts have great discretion when deciding the amount of attorneys' fees to award to a prevailing party.228 Based on the degree of success that is achieved by a party, a court may decide to award less than the full amount of attorneys' fees requested by the party.229 Courts have denied or reduced the party's attorneys' fees because the party rejected a settlement offer from the school district but accomplished little more in court than was offered in the proposed settlement.230 However, the Fifth Circuit has held that refusal to attend a meeting when a proposed settlement has not been offered does not mean that the award should be reduced because the plaintiff unreasonably protracted the proceedings.231 Additionally, Congress first imposed a fee cap on IDEA cases brought in the District of Columbia in FY1999 through a provision in the annual District of Columbia Appropriations Act, and a cap has been part of every subsequent D.C. appropriations act since that time.232

The 2004 IDEA reauthorization added a provision stating that in "any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees ... to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation.... " 233 In El Paso Independent School District v. Berry,234 the Fifth Circuit found that the award of attorneys' fees to the LEA was permissible against a lawyer who refused to accept all offered relief, and used stonewalling tactics to refuse to allow the district to evaluate the student. However, the sixth circuit found that this fee-shifting provision did not apply to private schools.235 The mere fact that the parents do not prevail in court does not make the parents' action frivolous.236 The Ninth Circuit noted that "[l]awyers would be improperly discouraged from taking on potentially meritorious IDEA cases if they risked being saddled with a six-figure judgment for bringing a suit where they have a plausible, though ultimately unsuccessful, argument…."237

Several of the cases discussing the fee-shifting provision have examined whether the LEA was the prevailing party. In El Paso Independent School District v. Richard R,238 the Fifth Circuit held that although the school district prevailed in successfully arguing for a reduction in the attorneys' fees awarded to the plaintiff, the school district did not prevail on the educational issues and thus was not entitled to attorneys' fees. Similarly, in District of Columbia v. Straus,239 the D.C. Court of Appeals refused to award fees for the school district because the school district was not found to be a prevailing party. The hearing officer had dismissed the case after the school district had agreed to pay for the requested evaluation, and the court noted that "[i]f the District were considered a prevailing party under these circumstances, then DCPS could ignore its legal obligations until parents sue, voluntarily comply quickly, file for and receive a dismissal with prejudice for mootness, and then recover attorney's fees from the parents' lawyers."240

Expert Witness Fees

Although there is no specific provision allowing a court to award to expert witness fees to prevailing parents, the language regarding attorneys' fees has been interpreted by some lower courts to allow such an award. IDEA's statutory language states in relevant part: "in any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs—(I) to a prevailing party who is the parent of a child with a disability."241

The parents in Arlington Central School District v. Murphy242 argued that the language on costs encompassed the payment of expert witness fees. To support this argument, they pointed to the legislative history of the Handicapped Children's Protection Act,243 which stated that "[t]he conferees intend that the term 'attorneys' fees as part of the costs' include reasonable expenses and fees of expert witnesses."244 The Supreme Court, in a decision written by Justice Alito, held that IDEA does not authorize prevailing parents to recover fees they have paid to experts. The majority opinion first observed that the holding was "guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause."245 This was seen as significant because if Congress attaches conditions to a state's acceptance of funds, the conditions must be unambiguous and provide clear notice. The majority concluded that IDEA's statutory language did not provide this clear notice and that the legislative history was unconvincing and "simply not enough" under these circumstances.246

H.R. 1208 and S. 613 were introduced in the 112th Congress to amend IDEA to include the fees of expert witnesses. They specifically provided that "the term 'attorneys' fees' shall include the fees of expert witnesses, including the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian's case in the action or proceeding."

Systemic Compliance Complaints

IDEA has two separate means of resolving disputes: (1) the impartial due process procedures247 and (2) the state complaint resolution system,248 and the state complaint regulations specifically allow complaints by "any organization or individual."249 In addition, the Department of Education is responsible for monitoring implementation of IDEA.250 At least one court of appeals decision has addressed a systemic complaint under IDEA's due process procedures.251 In addition, the Ninth Circuit in Lake Washington School District No. 414 v. Washington State Office of Administrative Hearings,252rejected an LEA's suit against the SEA finding that it had no private right of action to challenge a state's "systematic violation of the IDEA."253

In 1975, Congress established a protection and advocacy system (P & A's) to advocate and protect the rights of individuals with developmental disabilities.254 Many of the court cases filed by P & A's are class action lawsuits aimed at systemic violations of the rights of an individual and a number of these cases have involved special education students.255 These cases have often involved issues concerning the P & A's access to student records.256

Footnotes

1.

20 U.S.C. §1400 et seq. For a more detailed discussion of IDEA, see CRS Report RS22590, The Individuals with Disabilities Education Act (IDEA): Overview and Selected Issues, by [author name scrubbed] and [author name scrubbed].

2.

Although funding issues are beyond the scope of this report, it should be noted that the Ninth Circuit, in Arizona State Board for Charter Schools v. U.S. Department of Education, 464 F.3d 1003 (9th Cir. 2006), examined whether a for-profit charter school was eligible for federal funds under IDEA and held that a "a natural reading of the [statutory] text conveys clear congressional intent that all schools, including charter schools, must be non profit to receive IDEA and ESEA funds." For a discussion of this case and the use of IDEA funds for charter schools see Mark D. Evans, "An End to Funding of For-Profit Charter Schools?" 70 U. Colorado L. Rev. 617 (2008). For a discussion of IDEA funding generally see CRS Report RL32085, Individuals with Disabilities Education Act (IDEA): Current Funding Trends, by [author name scrubbed].

3.

Related services (for example, physical therapy) assist children with disabilities to help them benefit from special education (20 U.S.C. §1401(26), P.L. 108-446 §602(26)).

4.

Currently, all states receive IDEA funding.

5.

It should be emphasized that what is required under IDEA is the provision of a free appropriate public education. The Supreme Court, in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), held that this requirement is satisfied when the state provides personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction, and that this instruction should be reasonably calculated to enable the child to advance from grade to grade. IDEA does not require that a state maximize the potential of children with disabilities.

6.

PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972); Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C. 1972). For a discussion of the history of IDEA see CRS Report 95-669, The Individuals with Disabilities Education Act: Congressional Intent, by [author name scrubbed] (pdf).

7.

20 U.S.C. §1411(i). For years after 2011, P.L. 108-446 authorized "such sums as may be necessary for fiscal year 2012 and each succeeding fiscal year."

8.

The Department of Education and other groups have begun to look at issues surrounding IDEA reauthorization. See The Brookings Institution, "Building on IDEA: Policy Solutions to Improve U.S. Special Education" (January 18, 2011), http://www.brookings.edu/~/media/Files/events/2011/0118_special_education/20110118_special_education.pdf.

9.

The lower court cases were identified by a LEXIS search using the term "individuals with disabilities education act and date aft 2004" and a LEXIS search for "P.L. 108-446." It should be emphasized that although P.L. 108-446 was enacted in December 2004 and had a July 1, 2005, effective date, many of the cases located by the LEXIS search dealt with events that occurred prior to the effective date of P.L. 108-446, and were therefore subject to the previous statutory language. Generally, these cases are not discussed except where they raise a significant issue that was not resolved by the 2004 reauthorization. It should also be noted that a number of the cases examined concerned whether P.L. 108-446 applied retroactively, and held that the 2004 reauthorization was not retroactive. See e.g., Anna Hood v. Encinitas Union School District, 486 F.3d 1099 (9th Cir. 2007); Anthony v. District of Columbia, 463 F. Supp. 2d 37 (D.D.C. 2006); Tereance D. v. School District of Philadelphia, 570 F. Supp. 2d 739 (2008).

10.

42 U.S.C. §12102, as amended by P.L. 110-325.

11.

29 U.S.C. §705(20), as amended by P.L. 110-325.

12.

20 U.S.C. §1401(3).

13.

632 F.3d 1024 (8th Cir. 2011).

14.

480 F.3d 1 (1st Cir. 2007).

15.

Id. at 38.

16.

230 Fed Appx. 330 (4th Cir. 2007).

17.

496 F.3d 932 (9th Cir. 2007).

18.

503 F.3d 378 (5th Cir. 2007).

19.

300 Fed. Appx. 11 (2d Cir. 2008).

20.

See also, Marshal Joint School District No. 2 v. C.D., 616 F.3d 632(7th Cir. 2010), where the court found that a child with Ehlers-Danlos Syndrome (EDS), a genetic disease characterized by joint hyper-mobility, was a not a child with a disability under IDEA since his educational performance was not adversely affected. Although he needed physical therapy, the court, citing the IDEA regulations at 34 C.F.R. §300.8(a)(2)(i), emphasized that physical therapy is a related service that the school is not required to provide unless the child is a child with a disability under IDEA who need special education.

21.

20 U.S.C. §1412(a)(3); 34 C.F.R. §300.111 (2010).

22.

598 F.3d 1181 (9th Cir. 2010), Petition for certiorari filed (Jan. 6, 2011) (No.10-886).

23.

2011 U.S. LEXIS 2986; 79 U.S.L.W. 3591 (April 18, 2011),

24.

20 U.S.C. §1412(a)(1).

25.

20 U.S.C. §1401(9).

26.

458 U.S. 176 (1982).

27.

Id. at 200.

28.

Id. at 201.

29.

Id at 203.

30.

Id. at 203-204.

31.

Id. at 198.

32.

In Lessard v. Wilton-Lyndeborough Cooperative School District, 592 F.3d 267 (1st Cir. 2010), the First Circuit cited Rowley emphasizing that "an ideal or perfect plan is not required" and that deference to the educational authorities is required.

33.

Id. at 202.

34.

The 2004 reauthorization of IDEA has been found not to affect the Rowley standard. See Mr. and Mrs. C. v. Maine School Administrative District No. 6, 538 F. Supp. 2d 298 (D. Me.2008). An argument that the 1997 IDEA reauthorization, P.L. 105-17, changed the "educational benefit" standard of Rowley was rejected by the Ninth Circuit in J.L., M.L. and K.L. v. Mercer Island School District, 592 F.3d 938 (9th Cir. 2010).

35.

119 F.3d. 607 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998).

36.

Id. at 617 (dissenting opinion by Judge Gibson). For a more detailed discussion of Fort Zumwalt see Charlene K. Quade, "A Crystal Clear Idea: The Court Confounds the Clarity of Rowley and Contorts Congressional Intent," 23 Hamline J. Pub. L. and Policy 37 (2001).

37.

See Shaw v. Weast, 364 Fed. Appx. 47 (4th Cir. 2010), where the Fourth Circuit found that a student whose emotional and mental needs required a level of care beyond her current placement was not entitled to state funding of those needs when the student's educational needs were being addressed. Similarly, the Ninth Circuit in Ashland School District v. Parents of Student E.H., 587 F.3d 1175 (9th Cir. 2009), and Ashland School District v. Parents of Student R.J., 588 F.3d 1004 (9th Cir. 2009), affirmed the district court decisions that the students' residential placements were not for educational needs. But see Alleyne v. New York State Education Department, 691 F.Supp 2d 322(N.D.N.Y. 2010).

38.

853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989).

39.

Id. at 180-185. See also R.H. v. Plano Independent School District, 607 F.3d 1003(5th Cir. 2010), Cert. den. 2011 U.S. LEXIS 1330, 79 U.S.L.W. 3475 (U.S. Feb. 22, 2011).

40.

118 F.3d 245 (5th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).

41.

Id. at 248.

42.

Id. at 253.

43.

152 Fed. Appx. 117 (3d Cir. 2005). See also A.H. v. Department of Education of the City of New York, 394 Fed. Appx. 718 (2d Cir. 2010), where the court stated that "the relevant inquiry was not whether the proposed IEP provided all possible support to ensure that J.H. did not lose focus, but rather whether objective evidence indicated that the child was likely to progress, not regress, under the proposed plan."; Thompson R2-J School District v. Luke P., 540 F.3d 1143 (10th Cir. 2008), cert. den. 129 S. Ct. 1356 (Feb. 23, 2009), where the progress made by a student with autism was found to be sufficient.

44.

258 Fed. Appx. 399 (3d Cir. 2007).

45.

Id. at 410. Similarly, in D.S. v. Bayonne Board of Education, 602 F.3d 553 (3d Cir. 2010), the court found that high grades did not necessarily mean that FAPE was provided, especially when the high grades were achieved in special education classes.

46.

A.H. v. Department of Education of the City of New York, 394 Fed. Appx. 718 (2d Cir. 2010); Fitzgerald v. Fairfax County School Board, 556 F.Supp.2d 543 (E.D. Va. 2008); School Board of Independent School District No. 11, Anoka-Hennepin, Minnesota v. Renollett, 440 F.3d 1007 (8th Cir. 2006).

47.

T.T. v. District of Columbia, 2007 U.S. Dist. LEXIS 52547 (July 23, 2007); Hunter v. District of Columbia, 2008 U.S. Dist. LEXIS 70009 (September 17, 2008); Kingsmore v. District of Columbia, 466 F.3d 118 (D.C. Cir. 2006).

48.

DD v. New York City Board of Education, 465 F.3d 503 (2d Cir. 2006), rehearing denied, 480 F.3d 138 (2d Cir. 2007).

49.

Logwood v. Louisiana Department of Education, 197 Fed. Appx. 302 (5th Cir. 2006). The fact that certain parts of the school facilities were inaccessible to a student in a wheelchair did not deny the student a meaningful educational benefit and thus violate FAPE since he had an alternative route to his classrooms and activities on the stage of the auditorium would have been moved to the accessible gymnasium if necessary.

50.

O.O. v. District of Columbia, 573 F.Supp.2d 41 (2008).

51.

541 F.3d 1202 (9th Cir. 2008).

52.

Drobnicki v. Poway Unified School District, 358 Fed. Appx. 788 (9th Cir. 2009).

53.

P.L. 105-17.

54.

P.L. 105-17 §614(d)(1)(A), 20 U.S.C. §1414(d)(1)(A). The 2004 IDEA reauthorization, P.L. 108-446, continued the standards-based requirements of P.L. 105-17.

55.

20 U.S.C. §1400(c)(5)(A).

56.

20 U.S.C. §§6301-6777. For a discussion of the requirements of the NCLBA, see CRS Report RL31284, K-12 Education: Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by [author name scrubbed]. For a discussion of the relationship between the NCLBA and the IDEA, see CRS Report RL32913, The Individuals with Disabilities Education Act (IDEA): Interactions with Selected Provisions of the No Child Left Behind Act (NCLB), by [author name scrubbed] and [author name scrubbed].

57.

See e.g., Leighty v. Laurel School District, 457 F.Supp.2d 546 (W.D. Pa. 2006). "Although the IDEA clearly conditions the States' receipt of IDEA funds on the inclusion of disabled children in the assessments mandated by the NCLBA, it does not require that FAPE determinations be based on the results of those assessments, nor does it require that the IEP's prepared for disabled children be designed specifically to enhance their scores on standardized tests. While it is clear that both the IDEA and the NCLBA require recipient States to include disabled children in the assessments, with the modifications necessitated by their disabilities, neither statute indicates that FAPE determinations under the IDEA are controlled by the performance of disabled children on assessments required under the NCLBA." At 40-41. Fisher v. Stafford County Township Board of Education, 2007 U.S. Dist. LEXIS 14003 (February 27, 2007), aff'd 289 Fed. Appx. 520 (3d Cir. 2008). "There is absolutely no support in the statutes or case law for Fisher's attempt to engraft the achievement standards references in the NCLB Act onto the IDEA." At 42. Kirby v. Cabell County Board of Education, 2006 U.S. Dist LEXIS 67254 (S.D. W.Va. September 19, 2006). "While the statutory language of 20 U.S.C. §6311 requires that state plans are coordinated with the IDEA along with other programs under Title 20 ... , there is no language in the Act that places additional obligations on the development or assessment of a child's IEP.... The obligations contained in the section referenced by the plaintiffs are placed on the state in regards to all students. It does not contain specific obligations to children with disabilities nor does it alter the Court's standard of review in regards to the IEP in question." At 20. For a discussion of this issue see Robin Bucaria, "Expanding the Definition of FAPE under NCLB: Why Courts Give FAPE the Slip and Leave it Swimming in a Sea of Alphabet Soup," 10 J. L. Fam. Studies 237 (2007).

58.

Board of Education of Ottawa Township High School District 140 v. Spellings, 517 F.3d 922 (7th Cir. 2008). See also State of Connecticut v. Duncan, 612 F.3d 107 (2d Cir. 2010), Cert. den., 131 S.Ct. 1471, 179 L.Ed.2d 360, 2011 U.S. LEXIS 1115, 79 U.S.L.W. 3418 (U.S. Feb. 22, 2011).

59.

20 U.S.C. §1414(d)(1)(A)(i)(IV).

60.

71 Fed. Reg. 46665 (August 14, 2006).

61.

For a discussion concluding that "[t]he conservative 'some benefit' interpretation of Rowley, as applied to maintain the school district status quo, appears to be antithetical to the outcome based goals which led to the inclusion of PRR in IDEA 2004," see Ilene Young, "Peer-Reviewed Research (PRR)—What Effect on FAPE? From the Parents' Bar," Lehigh University 37th Annual Special Education Law Conference, http://documents.jdsupra.com/7eab09a0-cb63-4b26-851a-32ae53b6f56d.pdf.

62.

319 Fed Appx. 692 (9th Cir. 2009).

63.

Id. at 695.

64.

20 U.S.C. §1414(d).

65.

Id.

66.

See Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176, 206-207 (1982).

67.

Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).

68.

440 F.3d 1007 (8th Cir. 2006).

69.

Similarly, in Bradley v. Arkansas Department of Education,443 F.3d 965 (8th Cir. 2006), the court found that although the child's IEP and its implementation may not have been perfect, the IEP was reasonably calculated to provide educational benefits and thus did not violate IDEA. See also Mr. and Mrs. B v. East Granby Board of Education, 201 Fed. Appx. 834 (2d Cir. 2006), rejecting the argument that the child's IEPs violated IDEA since they did not include the recommendations of experts retained by the parents. The IEPs were found to be reasonably calculated to provide educational benefit. In G.N. and S.N. v. Board of Education of the Township of Livingston, 309 Fed. Appx. 542 (3d Cir. 2009), the absence of a requested modification to the IEP did not mean that the IEP was not reasonably designed to confer a meaningful educational benefit. There is also no requirement that the IEP name a specific school location. See T.Y. v. New York City Department of Education, 584 F.3d 412 (2d Cir. 2009), cert. den. 130 S. Ct. 3277 (May 17, 2010).

70.

202 Fed. Appx. 519 (2d Cir. 2006).

71.

A.C. and M.C. v. Board of Education of the Chappaqua Central School District, 553 F.3d. 165 (2d Cir. 2009).

72.

454 F.3d 604 (6th Cir. 2006).

73.

See also A.H. v. Department of Education of the City of New York, 394 Fed. Appx. 718 (2d Cir. 2010), where the court concluded that the absence of the child's special education teacher from the IEP meeting "did not impede the child's right to a free appropriate education, limit the parents' ability to participate in the decision making process, or result in the denial of educational benefits." At 720.

74.

Id. at 22. See also Lathrop R-II School District v. Gray, 611 F.3d 419 (8th Cir. 2010), cert. den. 131 S.Ct. 1017, 179 L.Ed.2d 843, 2011 U.S. LEXIS 812 (Jan. 18, 2011), where the court held that even if there was a technical violation regarding the scheduling of an IEP meeting, it did not affect the IEP or deprive the child of educational benefit, and thus was not a violation of IDEA.

75.

484 F.3d 672 (4th Cir. 2007).

76.

394 F.3d 634 (9th Cir. 2004).

77.

496 F.3d 932 (9th Cir. 2007). See also, A.G. v. Placentia-Yorba Linda Unified School District, 320 Fed. Appx. 519 (9th Cir. March 20, 2009); Mahoney v. Carlsbad Unified School District, 2011 U.S. App. LEXIS 8728 (9th Cir. April 28, 2011).

78.

J.R. v. Sylvan Union School District, 2008 U.S. Dist. LEXIS 18168 (March 10, 2008). See also, A.E. v. Westport Board of Education,454 F.3d 450 (5th Cir. 2006),where the court held that an IEP may be valid even if there is not consensus on all its aspects and, since the IEP was reasonably calculated to enable the child to receive educational benefits, there was no violation of IDEA. See also Systema v. Academy School District No. 20, 538 F.3d 1306 (10th Cir. 2008), where the court found that the fact that the parents had not signed a draft IEP did not affect its status. In J.W. v. Fresno Unified School District, 626 F.3d 431 (9th Cir. 2010), the parents' insistence during the IEP meeting that their child be mainstreamed supported the court's determination that the child's mainstream placement did not violate IDEA despite the parents' later arguments for a private school placement.

79.

454 F.3d 450 (5th Cir. 2006).

80.

518 F.3d 18 (1st Cir. 2008).

81.

Id. at 20.

82.

194 Fed. Appx. 173 (4th Cir. 2006).

83.

H. Berry v. Las Virgenes Unified School District, 370 Fed. Appx. 843 (9th Cir. 2010).

84.

Drobnicki v. Poway Unified School District, 358 Fed. Appx. 788 (9th Cir. 2009).

85.

20 U.S.C. §1401(9).

86.

20 U.S.C. §1401(26) (emphasis added).

87.

468 U.S. 883 (1984).

88.

526 U.S. 66 (1999).

89.

Id. at 78.

90.

20 U.S.C. §1411(e)(3).

91.

See M.K. v. Sergi, 554 F.Supp.2d 201 (D.Conn. 2008), where the court held that medical services are only covered if they are intended for diagnostic and evaluative purposes, not on-going monitoring of a medication regimen.

92.

20 U.S.C. §1412(a)(5).

93.

874 F.2d 1036 (5th Cir. 1989).

94.

P. v. Newington Board of Education, 546 F.3d 111 (2d Cir. 2008); T.W. v. Unified School District No. 259, Wichita, Kansas, 136 Fed. Appx. 122 (10th Cir. 2005); R.H. v. Plano Independent School District, 607 F.3d 1003 (5th Cir. 2010), Cert. denied, 131 S.Ct. 1471, 179 L.Ed.2d 300, 2011 U.S. LEXIS 1330, 79 U.S.L.W. 3475 (U.S. Feb. 22, 2011). Although Daniel R.R. was not cited, a similar standard was used in L.E. v. Ramsey Board of Education, 435 F.3d 384 (3d Cir. 2006), and B.S. v. Placentia-Yorba Linda Unified School District, 306 Fed. Appx. 397 (9th Cir. 2009).

95.

374 Fed. Appx. 330 (3d Cir. 2010).

96.

20 U.S.C. §1415(j). For a detailed discussion of "stay put," see CRS Report RL32753, Individuals with Disabilities Education Act (IDEA): Discipline Provisions in P.L. 108-446, by [author name scrubbed].

97.

484 U.S. 305 (1988).

98.

484 U.S. 305, 323 (1988) (emphasis in the original).

99.

Id. at 325-326.

100.

Letter to Klebanoff, 28 IDELR 478 (July 1, 1997). "Since the dispute in this case involved the child's initial public school placement, the district was not obligated to maintain the child's private nursery school program pending resolution of the dispute about his placement."

101.

420 F.3d 181 (3d Cir. 2005).

102.

420 F.3d 181, 192 (3d Cir. 2005).

103.

483 F.3d 725 (11th Cir. 2007), cert. den. 552 U.S. 1142 (2008).

104.

165 Fed. Appx. 750 (11th Cir. 2006).

105.

34 C.F.R. §300.518.

106.

556 F.3d 900 (9th Cir. 2009), cert. den. 130 S.Ct. 90, 175 L.Ed.2d 28 (U.S. 2009).

107.

384 Fed. Appx 58 (3d Cir. 2010).

108.

In re: Educational Assignment of Joseph R. v. Mars Area School District, 318 Fed. Appx. 113 (3d Cir. 2009).

109.

559 F.3d 1036 (9th Cir. 2009).

110.

600 F.3d 1104 (9th Cir. 2010).

111.

Apparently a plan has been agreed upon to prevent another 17 furlough days for the next school year by using state hurricane relief funds and a $10 million interest-free line of credit from local banks. http://www.nasbe.org/index.php/hlr-archive/995-headline-review-for-week-ending-52810.

112.

For a more detailed discussion of the use of seclusion and restraints in public schools see CRS Report R40522, The Use of Seclusion and Restraint in Public Schools: The Legal Issues, by [author name scrubbed] and [author name scrubbed].

113.

20 U.S.C. §1414(d)(3)(B).

114.

Letter to Anonymous, 50 IDELR 228 (OSEP March 17, 2008).

115.

Id.

116.

484 U.S. 305 (1988).

117.

Generally, IDEA requires that if there is a dispute between the school and the parents of a child with a disability, the child "stays put" in his or her current educational placement until the dispute is resolved using the due process procedures set forth in the statute. 20 U.S.C. §1415(j). For a more detailed discussion of Honig and the "stay put" provision see CRS Report RL32753, Individuals with Disabilities Education Act (IDEA): Discipline Provisions in P.L. 108-446, by [author name scrubbed].

118.

484 U.S. 305, 325 (1988).

119.

For a report on restraint and seclusion in schools see National Disability Rights Network, "School is not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools," (January 2009) http://www.napas.org/sr/SR-Report.pdf. Rep. George Miller has asked the Government Accountability Office to investigate the use of restraint and seclusion in schools. "House Education Committee Chairman asks GAO to Investigate Restraint, Seclusion," 42 Education Daily 3 (January 28, 2009).

120.

Melissa S. v. School District of Pittsburgh, 183 Fed. Appx. 184 (3d Cir. 2006).

121.

CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th Cir. 2003), cert. den. 540 U.S. 984 (2003).

122.

591 F.3d 624 (8th Cir. 2010).

123.

See also Payne v. Pennisula School District, 598 F.3d 1123 (9th Cir. 2010), where the court dismissed IDEA claims relating to the use of a seclusion room since IDEA's administrative remedies were not exhausted. However, this decision was vacated and a rehearing, en banc, was granted. Payne v. Peninsula Sch. Dist., 621 F.3d 1001 (9th Cir. 2010); Doe v. S&S Consolidated I.S.D., 149 F.Supp.2d 274 (E.D. Texas 2001), aff'd 309 F.3d 307 (5th Cir. 2002), where the court, in a case that also presented constitutional issues, dismissed the IDEA claims relating to restraints since IDEA's administrative procedures had not been exhausted.

124.

Alleyne v. New York State Education Department, 516 F.3d 96 (2d Cir. 2008). Aversive interventions were defined as including "skin shocks, 'contingent' food programs, and physical restraints." Id. at 98.

125.

Id. at 99.

126.

Alleyne v. New York State Education Department, 691 F.Supp2d 322 (N.D. N.Y. 2010).

127.

http://www.ed.gov/about/offices/list/ocr/docs/disabharassltr.html.

128.

M.L. v. Federal Way School District, 394 F.3d 634 (9th Cir. 2005), cert. den. 545 U.S. 1128 (2005); Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004).

129.

Geoffrey Stringer v. St. James R-1 School District, 446 F.3d 799 (8th Cir. 2006).

130.

M.T.V. v. DeLalb County School District, 446 F.3d 1153 (11th Cir. 2006). For a discussion of harassment and IDEA see David Ellis Ferster, "Deliberately Different: Bullying as a Denial of a Free Appropriate Public Education under the Individuals with Disabilities Education Act," 43 Ga. L. Rev. 191 (Fall 2008); Brandy L. Wagstaff, "Disabling Incentives: How A.W. v. Jersey City Public Schools has the Wrong 'Idea' for Deterring Disability Harassment in the Public Schools," 19 Geo. Mason U. Civil Rights L. J. 169 (Fall 2008).

131.

These statutes are discussed in more detail in a subsequent section.

132.

Reinhardt v. Albuquerque Public School Board of Education, 595 F.3d 1126, 1132 (10th Cir. 2010). See also, Barker v. Riverside County Office of Education, 584 F.3d 821, 824-826 (9th Cir. 2009); Montanye v. Wissahickon School District, 218 Fed.Appx. 126, 131 (3d Cir. 2007).

133.

20 U.S.C. §1415. Generally, exhaustion of IDEA's administrative procedures is required before a civil action is brought. See e.g., Z.F. v. Ripon Unified School District, 365 Fed. Appx. 77 (9th Cir. 2010); Levine v. Greece Central School District, 353 Fed. Appx. 461 (2d Cir. 2009), cert. denied, 130 S. Ct. 3411 (May 17, 2010).

134.

For a discussion of the state due process systems see Perry A. Zirkel and Gina Scala, "Due Process Hearing Systems Under the IDEA: A State-by-State Survey, " 21 J. of Dis. Policy Studies 3 (2010), http://www.directionservice.org/cadre/pdf/Due%20Process%20Hearing%20Systems.pdf.

135.

20 U.S.C. §1415(b)(6). The third circuit has held that this statute of limitations does not apply retroactively. Steven I. v. Central Bucks School District, 618 F.3d 411 (3d Cir. 2010), Cert. den., 131 S.Ct. 1507, 179 L.Ed.2d 307, 2011 U.S. LEXIS 1405, 79 U.S.L.W. 3476 (U.S. Feb. 22, 2011).

136.

See e.g., Bethlehem Area School District v. Diana Zhou, 2010 U.S. Dist. LEXIS 74404 (E.D. Pa. July 23, 2010), where the district court ruled that the school district could proceed with a suit against a mother who allegedly tried to increase legal fees against the district.

137.

20 U.S.C. §1415(i). Courts have examined the 90-day statute of limitations, and found that it does not apply to counterclaims. Ruben A. v. El Paso Independent School District, 2011 U.S. App. LEXIS 3906 (5th Cir. March 1, 2011); Jonathan H. v. The Souderton Area School District, 562 F.3d 527 (3d Cir. 2009).

138.

20 U.S.C. §1415(f)(1)(B).

139.

P.L. 105-17, §615(e).

140.

20 U.S.C. §1415(e).

141.

20 U.S.C. §1415(f)(1)(B)(iii).

142.

20 U.S.C. §1415(e)(2)(F)(iii).

143.

Friendship Edison Public Charter School Chamberlain Campus v. Ebony Smith, 561 F.Supp.2d 74 (D.D.C. 2008).

144.

Mr. and Mrs. S. v. Rochester Community Schools, 2006 U.S. Dist. LEXIS 71432 (W.D. Michigan October 2, 2006).

145.

O.O. v. District of Columbia, 573 F.Supp.2d 41 (2008).

146.

See e.g., 2006 U.S. Dist. LEXIS 53467 (D.D.C. Aug. 2, 2006).

147.

174 Fed. Appx. 896 (6th Cir. 2006).

148.

273 Fed. Appx. 184 (3d Cir. 2008), cert. den. 129 S. Ct. 1317 (Feb. 23, 2009).

149.

20 U.S.C. §1415(b)(7)(A)(ii).

150.

2010 U.S. Dist. LEXIS 45433 (E.D. Mo. May 10, 2010).

151.

S.Rept. 108-185, at 35, 108th Cong. (2003).

152.

2010 U.S. Dist. LEXIS 45433 (E.D. Mo. May 10, 2010).

153.

2011 U.S. App. LEXIS 8640 (April 27, 2011).

154.

615 F.3d 622 (6th Cir. 2010).

155.

2011 U.S. App. LEXIS 3464 (9th Cir. February 22, 2011).

156.

550 U.S. 516 (2007).

157.

20 U.S.C. §1400(d)(1)(B).

158.

20 U.S.C. §1415(a).

159.

20 U.S.C. §1415(i)(3)(B)(i)(III).

160.

KLA v. Windham Southeast Supervisory Union, 348 Fed. Appx. 604 (2d Cir. 2009).

161.

Tereance D. v. School District of Philadelphia, 548 F.Supp.2d 162 (E.D. Pa. 2008).

162.

Muse B. v. Upper Darby School Dist., 282 Fed. Appx. 986 (3d Cir. 2008).

163.

305 Fed. Appx. 833 (3d Cir.2009).

164.

Blanchard v. Morton School District, 509 F.3d 934 (9th Cir. 2007), cert den. 552 U.S. 1231 (2008); K.F. v. Frances Howell R-III School District, 2008 U.S. Dist. LEXIS 20700 (E.D. Missouri March 17, 2008).

165.

2009 U.S. Dist. LEXIS 30104 (D.N.J. April 6, 2009).

166.

509 F.3d 934 (9th Cir. 2007), cert. den., 552 U.S. 1231 (2008).

167.

Id. at 937.

168.

540 F.3d 145 (2d Cir. 2008), cert den. 129 S. Ct. 1357 (Feb. 23, 2009). See also Cumberland Regional High School District Board of Education v. Freehold Regional High School District Board of Education, 293 Fed. Appx. 900 (3d Cir. 2008), where two school districts were required to share the costs of providing FAPE to a child of divorced parents who shared joint legal and physical custody.

169.

20 U.S.C. §1401(23).

170.

34 C.F.R. §300.30(b).

171.

629 F.3d 450 (5th Cir. 2010).

172.

Id. at 460.

173.

For a more detailed discussion see CRS Report R40123, Education of Individuals with Disabilities: The Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA), by [author name scrubbed].

174.

See for example, Andrew M. v. Delaware County Office of Mental Health and Mental Retardation, 490 F.3d 337 (3d Cir. 2007), where the court found that although a violation of IDEA Part B claim is generally also a violation of Section 504, a violation of IDEA Part C, which provides for services for infants and toddlers with disabilities, is not also a violation of Section 504. See also Mark H. ex rel. Michelle H. and Natalie H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008). But see E.H .and K.H. v. Board of Education of the Shenendehowa Central School District, 361 Fed. Appx. 156 (2d Cir. 2009), where the court stated that a violation of IDEA is insufficient by itself to support a claim of discrimination under the ADA or section 504. Similarly, in Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010), the Ninth Circuit held that "simply establishing a violation of the right to a FAPE under IDEA is not sufficient to prevail in a §504 claim for damages."

175.

20 U.S.C. §1415(f).

176.

546 U.S. 49 (2005). Chief Justice Roberts took no part in the decision. For a more detailed discussion of Weast, see CRS Report RS22353, The Individuals with Disabilities Education Act (IDEA): Schaffer v. Weast Determines Party Seeking Relief Bears the Burden of Proof, by [author name scrubbed].

177.

Id.

178.

Id. at 57-58.

179.

Id. at 60, citing United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256, n.5 (1957).

180.

Id.

181.

Id. at 61.

182.

For a discussion of these issues under current law, see CRS Report RS22044, Individuals with Disabilities Education Act (IDEA): Services in Private Schools under P.L. 108-446, by [author name scrubbed], and CRS Report RL33368, The Individuals with Disabilities Education Act (IDEA): Parentally Placed Children in Private Schools, by [author name scrubbed] and [author name scrubbed].

183.

20 U.S.C. §1412(a)(10).

184.

20 U.S.C. § 1412(a)(10)(C)(ii).

185.

For a discussion of all the Supreme Court decisions on IDEA and private schools see CRS Report RL33444, The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions, by [author name scrubbed] and [author name scrubbed].

186.

552 U.S. 1 (2007).

187.

Board of Education of the Hyde Park Central School District v. Frank G., 459 F.3d 356 (2d Cir. 2006), cert. den. 522 U.S. 985 (2007).

188.

557 U.S. __ ,129 S.Ct. 2484, 174 L.Ed.2d 168 (2009).

189.

Thompson R2-J School District v. Luke P., 540 F.3d 1143 (10th Cir. 2008), cert. den. 557 U.S. __, 129 S.Ct. 1356, 176 L.Ed. 590 (2009); K.J. v Fairfax County School Board, 39 Fed. Appx. 921 (4th Cir. 2010).

190.

250 Fed. Appx. 428 (2d Cir. 2007). See also, N.M. v. The School District of Philadelphia, 394 Fed. Appx. 920 (3d Cir.2010).

191.

M.H. and J.H. v. Monroe-Woodbury Central School District, 296 Fed. Appx. 126 (2d Cir. 2008), cert. den. 557 U.S. __, 129 S.Ct. 1584, 173 L.Ed. 2d 676 (2009).

192.

Lauren P. v. Wissahickeon School District, 310 Fed. Appx. 552 (3d Cir. Feb. 12, 2009). Similarly, if the private placement is determined to be for medical, not educational, reasons, reimbursement is not required. Courtney v. School District of Philadelphia, 575 F.3d 235 (3d Cir. 2009). But see C.B. v. Garden Grove Unified School District, 635 F.3d 1155 (9th Cir. 2011), where the court held that full reimbursement for private school placement may be granted even if the placement does not satisfy all of the child's educational needs.

193.

C.B. v. Special School District No. 1, 2011 U.S. App. LEXIS 8176 (April 21, 2011).

194.

See Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006), cert. den. 552 U.S. 985 (2007); Carmel Central School District v. V.P., 192 Fed. Appx. 62 (2d Cir. 2006); K.J. v Fairfax County School Board, 39 Fed. Appx. 921 (4th Cir. 2010).

195.

20 U.S.C. §1412(a)(10)(C)(iii)(III). See C.G. and B.S. v. Five Town Community School District, 513 F.3d 279 (1st Cir. 2008), where the court held that the parents' "single-minded refusal to consider any placement other than a residential one" was unreasonable; C.H. v. Cape Henlopen School District, 606 F.3d 59 (3d Cir. 2010), where the court held that the parents' disregard of their obligation to cooperate and assist in the formation of an IEP was unreasonable.

196.

C.H. v. Cape Henlopen School District, 606 F.3d 59 (3d Cir. 2010); Anello v. Indian River School District, 355 Fed. Appx. 594 (3d Cir. 2009).

197.

Carmel Central School District v. V.P., 192 Fed. Appx. 62 (2d Cir. 2006); Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) cert. den. 552 U.S. 985 (2007); M.M. v. School Board of Miami-Dade County, Florida, 437 F.3d 1085 (11th Cir. 2006).

198.

471 U.S. 359 (1985).

199.

See e.g., Ferren C. v. School District of Philadelphia, 612 F.3d 712 (3d Cir. 2010); Reid v. District of Columbia, 401 F.3d 516 (U.S. App. D.C. 2005); Draper v. Atlanta Independent School System, 518 F.3d 1275 (11th Cir. 2008).

200.

M.C. v. Cent. Regional School District, 81 F.3d 389 (3d Cir. 1996).

201.

Reid v. District of Columbia, 401 F.3d 516 (U.S. App. D.C. 2005); Neena S. v. School District of Philadelphia, 2008 U.S.Dist. LEXIS 102841 (Dec. 19, 2008).

202.

Reid v. District of Columbia, 401 F.3d 516 (U.S. App. D.C. 2005).

203.

42 U.S.C. §1983.

204.

Doe v. Todd County School District, 625 F.3d 459 (8th Cir. Nov. 12, 2010).

205.

See Padilla ex rel. Padilla v. School District No. 1, 233 F.3d 1268 (10th Cir. 2000); A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir. 2007); J.S. v. Isle of Wight County School Board, 402 F.3d 468 (4th Cir. 2005).

206.

D.D. ex rel. V.D. v. N.Y. City Board of Education, 465 F.3d 503 (2d Cir. 2006). For a more detailed discussion of IDEA and Section 1983 see Suzanne Solomon, "The Intersection of 42 U.S.C. §1983 and the Individuals with Disabilities Education Act," 76 Fordham L. Rev. 3065 (May 2008). See also Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008), where the court found that parents could seek monetary damages under section 504 for a violation of FAPE.

207.

29 U.S.C. §794a.

208.

42 U.S.C. §1988.

209.

468 U.S. 992 (1984).

210.

Id. at 1009.

211.

Id. at 1012.

212.

P.L. 99-372.

213.

20 U.S.C. §1415(i)(3). For a discussion of P.L. 108-446 and attorneys' fees, see CRS Report RS22055, The Individuals with Disabilities Education Act (IDEA): Attorneys' Fees Provisions in P.L. 108-446, by [author name scrubbed].

214.

532 U.S. 598 (2001).

215.

For more information about the Buckhannon decision, see CRS Report 98-921, The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues, by [author name scrubbed].

216.

See P.N. and M.W. v. Clementon Board of Education, 442 F.3d 848 (3d Cir. 2006), cert. den., 549 U.S. 881 (2006); A.R. ex. rel. R.V. et. al. v. New York City Department of Education, 407 F.3d 65 (2d Cir. 2005); Department of Education, State of Hawaii v. Leialoha J. ex. rel. Presh'es J., 2008 U.S. Dist. LEXIS 87854 (D. Hawaii Oct. 29, 2008).

217.

See El Paso Independent School District v. Richard R., 591 F.3d 417 (5th Cir. 2009), cert. den., 130 S. Ct. 3467 (2010), where the Fifth Circuit overruled a district court's decision allowing attorneys' fees for a resolution session.

218.

District of Columbia v. Jeppsen and M.J., 514 F.3d 1287 (D.C. Cir. 2008).

219.

Weissburg v. Lancaster School District, 591 F.3d. 1255 (9th Cir. 2010).

220.

T.B. v. v. Bryan Independent School District, 628 F.3d 240 (5th Cir. 2010). See also, D.S. v. Neptune Township Board of Education, 264 Fed. Appx. (3d Cir. 2008).

221.

Bassman v. Chicago Public Schools, District #299, 2008 U.S. Dist. LEXIS 87469 (N.D. Ill. Oct. 29, 2008).

222.

Bingham et. al. v. New Berlin School District, 550 F.3d 601 (7th Cir. 2008).

223.

See Smith v. Fitchburg Public Schools, 401 F.3d 16 (1st Cir. 2005); P.N. ex. rel. T.N. v. Seattle School District, No. 1, 474 F.3d 1165 (9th Cir. 2007); Salley v. Trenton Board of Education, 156 Fed. Appx. 470 (3d Cir. 2005); Mr. L. ex. rel. M. v. Sloan and Norwalk Board of Education, 449 F.3d 405 (2d Cir. 2006); Evans v. Grossmont Union High School District et. al., 197 Fed. Appx. 648 (9th Cir. 2006); Bassman v. Chicago Public Schools, District #299, 2008 U.S. Dist. LEXIS 87469 (N.D. Ill. Oct. 29, 2008).

224.

458 F.3d 755 (8th Cir. 2006).

225.

A.H. v. South Orange Maplewood Board of Education, 153 Fed. Appx. 863 (3d Cir. 2005), cert. den. 549 U.S. 945 (2006).

226.

See, for example, S.N. ex. rel. v. Pittsford Central School District, 448 F.3d 601 (2d Cir. 2006); Whitney Ford ex. rel. v. Long Beach Unified School District, 461 F.3d 1087 (9th Cir. 2006); Van Duyn v. Baker School District 5J, 502 F.3d 811 (9th Cir. 2007).

227.

Weissburg v. Lancaster School District, 591 F.3d. 1255 (9th Cir. 2010).

228.

See Damian J. v. The School District of Philadelphia, 358 Fed. Appx. 333 (3d Cir. 2009), where the court of appeals declined to overrule the district court's award of attorneys' fees, finding that the determination of the fees was made following "a thoroughly reasoned and careful analysis."

229.

See, for example, Damian J. v. The School District of Philadelphia, 358 Fed. Appx 333 (3rd Cir. 2009); Crawford et. al. v. San Dieguito Union School District, 202 Fed. Appx. 185 (9th Cir. 2006); A.S. ex. rel. V.S. and G.S. v. Colts Neck Board of Education, 190 Fed. Appx. 140 (3d Cir. 2006); Aguirre v. Los Angeles Unified School District, 461 F.3d 1114 (9th Cir. 2006); Starkey ex rel. Starkey v. Somers Cent. Sch. Dist., 2008 U.S. Dist. LEXIS 104064 (S.D.N.Y. Dec. 23, 2008).

230.

See Gary G. v. El Paso Independent School District, 632 F.3d 201 (5th Cir. 2011) (attorneys' fees denied after rejection of a settlement agreement), El Paso Independent School District v. Richard R., 591 F.3d 417 (5th Cir. 2009), cert. den., 130 S. Ct. 3467 (2010)(attorneys' fees denied after rejection of a settlement agreement that included all the relief requested); V.G. by J.G. v. Auburn Enlarged Cent. Sch. Dist., 2008 U.S. Dist. LEXIS 99743 (N.D.N.Y. 2008), aff'd 349 Fed. Appx. 582 (2d Cir. 2009)(reduction of attorneys' fees after rejection of a settlement offer). However, a school district does not shield itself from attorneys' fees simply by making a settlement offer, and a party may still receive attorneys' fees if it is "substantially justified" in rejecting the settlement offer. See Hawkins v. Berkeley Unified Sch. Dist., 2008 U.S. Dist. LEXIS 94673 (N.D. Cal. Nov. 20, 2008). Additionally, evidence of a settlement agreement that was offered following confidential mediation but referencing the mediation session cannot be used to show that the party rejected a school district's settlement offer. See J.D. v. Kanawha County Board of Education, 571 F.3d 381 (4th Cir. 2009), cert den., 131 S.Ct. 107 (2010).

231.

Ector County Independent School District, 2011 U.S. App. LEXIS 6380 (5th Cir. March 28, 2011).

232.

See, for example, Kaseman v. District of Columbia, 444 F.3d 637 (D.C. Cir. 2006); Pullins v. Community Services for Autistic Adults and Children, 171 Fed. Appx. 867 (D.C. Cir. 2005); Whatley v. District of Columbia, 447 F.3d 814 (D.C. Cir. 2006); Jester v. Government of the District of Columbia, 474 F.3d 820 (D.C. Cir. 2007); Blackman et. al. v. District of Columbia et. al., 456 F.3d 167 (D.C. Cir. 2006). For examples of the appropriation provisions that cap IDEA fees in the District of Columbia, see 2006 District of Columbia Appropriations Act §122(a)(1), P.L. 109-115; Consolidated Appropriations Act, 2008, P.L. 110-161, § 819. This cap has been held not to be applicable to a class action as a whole but rather limits fees for individual students in the class. Blackman et al. v. District of Columbia, 633 F.3d 1088 (D.C. Cir. 2011).

233.

20 U.S.C. §1415(i)(3)(B)(i)(II).

234.

400 Fed. Appx. 947 (5th Cir. 2010).

235.

Children's Center for Developmental Enrichment v. Machle, 612 F.3d 518 (6th Cir. 2010).

236.

R.P. v. Prescott Unified School District, 631 F.3d 1117 (9th Cir. 2011).

237.

Id. at 135. The Ninth Circuit also observed that the district court had erred in holding the parents liable for bringing a suit for an improper purpose because they brought the suit in anger. Anger was not a motive listed in IDEA, and the court noted that anger may well be a legitimate reaction to a belief that rights have been violated.

238.

591 F.3d 417 (5th Cir. 2009), cert. den., 130 S. Ct. 3467 (2010).

239.

590 F.3d 898 (DC Cir. 2010).

240.

Id. at 902.

241.

20 U.S.C. §1415(i)(3)(B).

242.

548 U.S. 291 (2006).

243.

P.L. 99-372.

244.

H.Rept. 99-687, at 5.

245.

548 U.S. 291, 295 (2006).

246.

548 U.S. 291, 303 (2006). For a more detailed discussion, see CRS Report RS22465, The Individuals with Disabilities Education Act (IDEA): The Supreme Court Denies Expert Fees in Arlington Central School District v. Murphy, by [author name scrubbed].

247.

20 U.S.C. §1415.

248.

34 C.F.R. §§ 300.151-300.153.

249.

34 C.F.R. §300.153(a). In Reinhardt v. Alburquerque Public Schools Board of Education, 595 F.3d 1126 (10th Cir. 2010), the court addressed a retaliation claim by a speech-language pathologist who had filed an IDEA complaint with the state, finding that the teachers advocacy on behalf of students with disabilities was protected under Section 504 of the Rehabilitation Act, 29 U.S.C. §794.

250.

20 U.S.C. §1416.

251.

Keene v. Zelman, 337 Fed. Appx. 553 (6th Cir. 2009). Although the issue in Keene involved the award of attorneys' fees, the fees were awarded for deficiencies in the procedures for litigating due process notices. See also N.D. v. State of Hawaii, 600 F.3d 1104 (9th Cir. 2010), where the court found no violation of the stay put provision by Hawaii's decision to shut down the public school for 17 Fridays in the 2009-2010 school year. The court held that the stay put provision was not intended to cover system-wide changes in public schools that affect children with and without disabilities.

252.

634 F.3d 1065 (9th Cir. 2011).

253.

Id.

254.

The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §15001 et seq.

255.

For a discussion of IDEA and the enforcement of systemic, not individual, complaints, see Monica Costello, "Systemic Compliance Complaints: Making IDEA's Enforcement Provisions a Reality," 41 U. Mich. J. L. Reform 507 (Winter 2008).

256.

Unified School District No. 259 v. Disability Rights Center of Kansas, 491 F.3d 1143 (10th Cir. 2007); Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Hartford Board of Education, 464 F.3d 229 (2d Cir. 2006).