-
2. Special Education Law a. Statute and Regulations
i. IDEA (20 USC 1400) ii. IDEA Regulations (34 CFR 300, 301)
iii. D.C. Code Title 5, Chapter 30, Sections 3000-3033 iv. Part C
Final Regulations
b. Special Education Case Law i. Case Law Summaries (December
2011)
ii. Statute of Limitations (2010) c. New Special Education
Legislation
i. Special Education Quality Improvement Act of 2014
ii. Enhanced Special Education Services Amendment Act of
2014
iii. Special Education Student Rights Act of 2014 d. Department
of Education Office of Special Education
Program Advisory Letters e. Other Resources
-
UNITED STATES CODE SERVICECopyright 2011 Matthew Bender &
Company,Inc.
a member of the LexisNexis Group (TM)All rights reserved.
*** CURRENT THROUGH PL 112-23, APPROVED 6/29/2011 ***
TITLE 20. EDUCATIONCHAPTER 33. EDUCATION OF INDIVIDUALS WITH
DISABILITIES
GENERAL PROVISIONS
Go to the United States Code Service Archive Directory
20 USCS 1400
1400. Short title; table of contents; findings; purposes
(a) Short title. This title [20 USCS 1400 et seq.] may be cited
as the "Individuals with Disabilities Education Act".
(b) [Omitted]
(c) Findings. Congress finds the following:(1) Disability is a
natural part of the human experience and in no way diminishes the
right of individuals to participate
in or contribute to society. Improving educational results for
children with disabilities is an essential element of ournational
policy of ensuring equality of opportunity, full participation,
independent living, and economic self-sufficiencyfor individuals
with disabilities.
(2) Before the date of enactment of the Education for All
Handicapped Children Act of 1975 (Public Law 94-142)[enacted Nov.
29, 1975], the educational needs of millions of children with
disabilities were not being fully metbecause--
(A) the children did not receive appropriate educational
services;(B) the children were excluded entirely from the public
school system and from being educated with their peers;(C)
undiagnosed disabilities prevented the children from having a
successful educational experience; or(D) a lack of adequate
resources within the public school system forced families to find
services outside the public
school system.(3) Since the enactment and implementation of the
Education for All Handicapped Children Act of 1975 [enacted
Nov. 29, 1975], this title [20 USCS 1400 et seq.] has been
successful in ensuring children with disabilities and thefamilies
of such children access to a free appropriate public education and
in improving educational results for childrenwith disabilities.
(4) However, the implementation of this title [20 USCS 1400 et
seq.] has been impeded by low expectations, andan insufficient
focus on applying replicable research on proven methods of teaching
and learning for children withdisabilities.
(5) Almost 30 years of research and experience has demonstrated
that the education of children with disabilities canbe made more
effective by--
Page 1
cgrahamText BoxThis information has been reprinted with generous
permission from LexisNexis
-
(A) having high expectations for such children and ensuring
their access to the general education curriculum in theregular
classroom, to the maximum extent possible, in order to--
(i) meet developmental goals and, to the maximum extent
possible, the challenging expectations that have beenestablished
for all children; and
(ii) be prepared to lead productive and independent adult lives,
to the maximum extent possible;(B) strengthening the role and
responsibility of parents and ensuring that families of such
children have meaningful
opportunities to participate in the education of their children
at school and at home;(C) coordinating this title [20 USCS 1400 et
seq.] with other local, educational service agency, State, and
Federal
school improvement efforts, including improvement efforts under
the Elementary and Secondary Education Act of1965, in order to
ensure that such children benefit from such efforts and that
special education can become a service forsuch children rather than
a place where such children are sent;
(D) providing appropriate special education and related
services, and aids and supports in the regular classroom, tosuch
children, whenever appropriate;
(E) supporting high-quality, intensive preservice preparation
and professional development for all personnel whowork with
children with disabilities in order to ensure that such personnel
have the skills and knowledge necessary toimprove the academic
achievement and functional performance of children with
disabilities, including the use ofscientifically based
instructional practices, to the maximum extent possible;
(F) providing incentives for whole-school approaches,
scientifically based early reading programs, positivebehavioral
interventions and supports, and early intervening services to
reduce the need to label children as disabled inorder to address
the learning and behavioral needs of such children;
(G) focusing resources on teaching and learning while reducing
paperwork and requirements that do not assist inimproving
educational results; and
(H) supporting the development and use of technology, including
assistive technology devices and assistivetechnology services, to
maximize accessibility for children with disabilities.
(6) While States, local educational agencies, and educational
service agencies are primarily responsible for providingan
education for all children with disabilities, it is in the national
interest that the Federal Government have a supportingrole in
assisting State and local efforts to educate children with
disabilities in order to improve results for such childrenand to
ensure equal protection of the law.
(7) A more equitable allocation of resources is essential for
the Federal Government to meet its responsibility toprovide an
equal educational opportunity for all individuals.
(8) Parents and schools should be given expanded opportunities
to resolve their disagreements in positive andconstructive
ways.
(9) Teachers, schools, local educational agencies, and States
should be relieved of irrelevant and unnecessarypaperwork burdens
that do not lead to improved educational outcomes.
(10) (A) The Federal Government must be responsive to the
growing needs of an increasingly diverse society.(B) America's
ethnic profile is rapidly changing. In 2000, 1 of every 3 persons
in the United States was a member of
a minority group or was limited English proficient.(C) Minority
children comprise an increasing percentage of public school
students.(D) With such changing demographics, recruitment efforts
for special education personnel should focus on
increasing the participation of minorities in the teaching
profession in order to provide appropriate role models
withsufficient knowledge to address the special education needs of
these students.
(11) (A) The limited English proficient population is the
fastest growing in our Nation, and the growth is occurring inmany
parts of our Nation.
(B) Studies have documented apparent discrepancies in the levels
of referral and placement of limited Englishproficient children in
special education.
(C) Such discrepancies pose a special challenge for special
education in the referral of, assessment of, and provisionof
services for, our Nation's students from non-English language
backgrounds.
(12)(A) Greater efforts are needed to prevent the
intensification of problems connected with mislabeling and high
dropout rates among minority children with disabilities.
Page 220 USCS 1400
-
(B) More minority children continue to be served in special
education than would be expected from the percentageof minority
students in the general school population.
(C) African-American children are identified as having
intellectual disabilities and emotional disturbance at ratesgreater
than their White counterparts.
(D) In the 1998-1999 school year, African-American children
represented just 14.8 percent of the population aged 6through 21,
but comprised 20.2 percent of all children with disabilities.
(E) Studies have found that schools with predominately White
students and teachers have placed disproportionatelyhigh numbers of
their minority students into special education.
(13)(A) As the number of minority students in special education
increases, the number of minority teachers and related
services personnel produced in colleges and universities
continues to decrease.(B) The opportunity for full participation by
minority individuals, minority organizations, and Historically
Black
Colleges and Universities in awards for grants and contracts,
boards of organizations receiving assistance under this title[20
USCS 1400 et seq.], peer review panels, and training of
professionals in the area of special education is essentialto
obtain greater success in the education of minority children with
disabilities.
(14) As the graduation rates for children with disabilities
continue to climb, providing effective transition services
topromote successful post-school employment or education is an
important measure of accountability for children
withdisabilities.
(d) Purposes. The purposes of this title [20 USCS 1400 et seq.]
are--(1) (A) to ensure that all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for furthereducation,
employment, and independent living;
(B) to ensure that the rights of children with disabilities and
parents of such children are protected; and(C) to assist States,
localities, educational service agencies, and Federal agencies to
provide for the education of all
children with disabilities;(2) to assist States in the
implementation of a statewide, comprehensive, coordinated,
multidisciplinary, interagency
system of early intervention services for infants and toddlers
with disabilities and their families;(3) to ensure that educators
and parents have the necessary tools to improve educational results
for children with
disabilities by supporting system improvement activities;
coordinated research and personnel preparation;
coordinatedtechnical assistance, dissemination, and support; and
technology development and media services; and
(4) to assess, and ensure the effectiveness of, efforts to
educate children with disabilities.
HISTORY:(April 13, 1970, P.L. 91-230, Title VI, Part A, 601, as
added Dec. 3, 2004, P.L. 108-446, Title I, 101, 118 Stat.
2647.)(As amended Oct. 5, 2010, P.L. 111-256, 2(b)(1), 124 Stat.
2643.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:The "Elementary and Secondary Education Act
of 1965", referred to in this section, is Act April 11, 1965, P.L.
89-10,
which appears generally as 20 USCS 6301 et seq. For full
classification of such Act, consult USCS Tables volumes.
Explanatory notes:Subsection (b), which has been omitted,
contains a table of contents for Title VI of Act April 13, 1970,
P.L. 91-230.A prior 1400 (Act April 13, 1970, P.L. 91-230, Title
VI, Part A, 601, as added June 4, 1997, P.L. 105-17, Title I,
Page 320 USCS 1400
-
101, 111 Stat. 37) was replaced in the general revision of Title
VI of Act April 13, 1970, P.L. 91-230, by Act Dec. 3,2004, P.L.
108-446, Title I, 101, 118 Stat. 2647 (effective July 1, 2005,
pursuant to 302(a) of Act Dec. 3, 2004, P.L.108-446, which appears
as 20 USCS 1400 note). Such section contained a short title and set
out congressional findingsand purposes.
Another prior 1400 (Act April 13, 1970, P.L. 91-230, Title VI,
Part A, 601, 84 Stat. 175; Nov. 29, 1975, P.L.94-142, 3(a), 89
Stat. 774; Oct. 30, 1990. P.L. 101-476, Title IX, 901(a)(1),
(b)(1)-(9), 104 Stat. 1141, 1142; Oct. 7,1991, P.L. 102-119, 25(b),
105 Stat. 607) was replaced in the general amendment of Title VI of
Act April 13, 1970,P.L. 91-230, by Act June 4, 1997, P.L. 105-17,
Title I, 101, 111 Stat. 37. Such section contained a short title
and setout congressional findings and purposes.
Effective date of section:This section took effect on July 1,
2005, pursuant to 302(a) of Act Dec. 3, 2004, P.L. 108-446, which
appears as a
note to this section.
Amendments:
2010. Act Oct. 5, 2010, in subsec. (c)(12)(C), substituted
"intellectual disabilities" for "mental retardation".
Short titles:Act Aug. 21, 1974, P.L. 93-380, Title VI, Part B,
611, 88 Stat. 579, provides: "This title may be cited as the
'Education of the Handicapped Amendments of 1974'.". For full
classification of such Title, consult USCS Tablesvolumes.
Act Nov. 29, 1975, P.L. 94-142, 1, 89 Stat. 773, provided "This
Act may be cited as the 'Education for AllHandicapped Children Act
of 1975'.". For full classification of such Act, consult USCS
Tables volumes.
Act June 17, 1977, P.L. 95-49, 1, 91 Stat. 230, provided "This
Act may be cited as the 'Education of theHandicapped Amendments of
1977'.". For full classification of such Act, consult USCS Tables
volumes.
Act Dec. 2, 1983, P.L. 98-199, 1, 97 Stat. 1357, (effective upon
enactment on Dec. 2, 1983, except as provided by 18(b) of such Act,
which appears as 20 USCS 1401 note), provides: "This Act [generally
amending 20 USCS 1401et seq.; for full classification, consult USCS
Tables volume] may be cited as the 'Education of the Handicapped
ActAmendments of 1983'.".
Act Aug. 5, 1986, P.L. 99-372, 1, 100 Stat. 796, provides: "This
Act may be cited as the 'Handicapped Children'sProtection Act of
1986'.". For full classification of such Act, consult USCS Tables
volumes.
Act Oct. 8, 1986, P.L. 99-457, 1(a), 100 Stat. 1145, provides:
"This Act may be cited as the 'Education of theHandicapped Act
Amendments of 1986'.".
Act Nov. 7, 1988, P.L. 100-630, 1, 102 Stat. 3289, provides:
"This Act may be cited as the 'Handicapped ProgramsTechnical
Amendments Act of 1988'.".
Act Oct. 30, 1990. P.L. 101-476, 1, 104 Stat. 1103, provides:
"This Act may be cited as the 'Education of theHandicapped Act
Amendments of 1990'.". For full classification of such Act, consult
USCS Tables volumes.
Act Oct. 7, 1991, P.L. 102-119, 1, 105 Stat. 587, provides:
"This Act may be cited as the 'Individuals withDisabilities
Education Act Amendments of 1991'.". For full classification of
such Act, consult USCS Tables volumes.
Act June 4, 1997, P.L. 105-17, 1, 111 Stat. 37, provides: "This
Act [generally amending 20 USCS 1400 et seq.;for full
classification, consult USCS Tables volume] may be cited as the
'Individuals with Disabilities Education ActAmendments of
1997'.".
Act Dec. 3, 2004, P.L. 108-446, 1, 118 Stat. 2647, provides:
"This Act [generally amending 20 USCS 1400 et
Page 420 USCS 1400
-
seq.; for full classification, consult USCS Tables volumes] may
be cited as the 'Individuals With Disabilities EducationImprovement
Act of 2004'.".
Act Oct. 5, 2010, P.L. 111-256, 1, 124 Stat. 2643, provides:
"This Act may be cited as 'Rosa's Law'.". For fullclassification of
such Act, consult USCS Tables volumes.
Other provisions:Substitution of "Individuals with Disabilities
Education Act" for "Education of the Handicapped Act". Act
Oct. 30, 1990, P.L. 101-476, Title IX, 901(a)(2), (3), 104 Stat.
1142 (effective 10/1/90, as provided by 1001 of suchAct, which
appears as 20 USCS 238 note), provided:
"(2) The following Acts are each amended by striking 'Education
of the Handicapped Act' each place it occurs andinserting in lieu
thereof 'Individuals with Disabilities Education Act': Carl D.
Perkins Vocational Education and AppliedTechnology Act;
Comprehensive Alcohol Abuse, Drug Abuse, and Mental Health
Amendments Act of 1988;Department of Education Organization Act;
Developmental Disabilities Assistance and Bill of Rights Act
Amendmentsof 1987; Education for All Handicapped Children Act of
1975; Education of the Deaf Act of 1986; Elementary andSecondary
Education Act of 1965; Medicare Catastrophic Coverage Act of 1988;
Omnibus Trade and CompetitivenessAct of 1988; Rehabilitation,
Comprehensive Services and Developmental Disabilities Amendments of
1978; andTechnology-Related Assistance for Individuals With
Disabilities Act of 1988.
"(3) Any other Act and any regulation which refers to the
Education of the Handicapped Act shall be considered torefer to the
Individuals with Disabilities Education Act.".
Effective dates of Parts A and B of Title VI of Act April 13,
1970, as amended June 4, 1997. Act June 4, 1997,P.L. 105-17, Title
II, 201(a), 111 Stat. 156, provides:
"(1) In general. Except as provided in paragraph (2), parts A
and B of the Individuals with Disabilities Education Act[20 USCS
1400 et seq., 1411 et seq.], as amended by title I, shall take
effect upon the enactment of this Act.
"(2) Exceptions.(A) In general. Sections 612(a)(4), 612(a)(14),
612(a)(16), 614(d) (except for paragraph (6)), and 618 of the
Individuals with Disabilities Education Act [20 USCS 1412(a)(4),
(14), (16), 1414(d) (except for para. (6)), and1418], as amended by
title I, shall take effect on July 1, 1998.
"(B) Section 617. Section 617 of the Individuals with
Disabilities Education Act [20 USCS 1417], as amended bytitle I,
shall take effect on October 1, 1997.
"(C) Individualized education programs and comprehensive system
of personnel development. Section 618 of theIndividuals with
Disabilities Education Act [20 USCS 1418], as in effect on the day
before the date of the enactmentof this Act, and the provisions of
parts A and B of the Individuals with Disabilities Education Act
[20 USCS 1400 etseq., 1411 et seq.] relating to individualized
education programs and the State's comprehensive system of
personneldevelopment, as so in effect, shall remain in effect until
July 1, 1998.
"(D) Sections 611 and 619. Sections 611 and 619 [20 USCS 1411,
1419], as amended by title I, shall take effectbeginning with funds
appropriated for fiscal year 1998.".
Effective dates of Title VI of Act April 13, 1970, as amended
Dec. 3, 2004. Act Dec. 3, 2004, P.L. 108-446, TitleIII, 302(a),
(b), 118 Stat. 2803, provides:
"(a) Parts A, B, and C, and subpart 1 of part D.(1) In general.
Except as provided in paragraph (2), parts A, B, and C, and subpart
1 of part D, of the Individuals
with Disabilities Education Act [20 USCS 1400 et seq., 1411 et
seq., 1431, et seq., and 1451 et seq.], as amended bytitle I, shall
take effect on July 1, 2005.
"(2) Highly qualified definition. Subparagraph (A), and
subparagraphs (C) through (F), of section 602(10) of theIndividuals
with Disabilities Education Act [20 USCS 1401(10)], as amended by
title I, shall take effect on the date ofenactment of this Act for
purposes of the Elementary and Secondary Education Act of 1965.
"(b) Subparts 2, 3, and 4 of part D. Subparts 2, 3, and 4 of
part D of the Individuals with Disabilities Education Act[20 USCS
1461 et seq., 1471 et seq., and 1481 et seq.], as amended by title
I, shall take effect on the date ofenactment of this Act.".
Page 520 USCS 1400
-
Individuals With Disabilities Education Improvement Act of 2004;
transition. Act Dec. 3, 2004, P.L. 108-446,Title III, 303, 118
Stat. 2803, provides:
"(a) Orderly transition.(1) In general. The Secretary of
Education (in this section referred to as 'the Secretary') shall
take such steps as are
necessary to provide for the orderly transition from the
Individuals with Disabilities Education Act [20 USCS 1400 etseq.],
as such Act was in effect on the day preceding the date of
enactment of this Act, to the Individuals withDisabilities
Education Act [20 USCS 1400 et seq.] and part E of the Education
Sciences Reform Act of 2002 [20USCS 9567 et seq.], as amended by
this Act.
"(2) Limitation. The Secretary's authority in paragraph (1)
shall terminate 1 year after the date of enactment of thisAct.
"(b) Multi-year awards. Notwithstanding any other provision of
law, the Secretary may use funds appropriated underpart D of the
Individuals with Disabilities Education Act [20 USCS 1450 et seq.]
to make continuation awards forprojects that were funded under
section 618, and part D, of the Individuals with Disabilities
Education Act [20 USCS 1418 and 1451 et seq.] (as such section and
part were in effect on September 30, 2004), in accordance with the
terms ofthe original awards.
"(c) Research. Notwithstanding section 302(b) [note to this
section] or any other provision of law, the Secretary mayaward
funds that are appropriated under the Department of Education
Appropriations Act, 2005 for special educationresearch under either
of the headings 'Special Education' or 'Institute of Education
Sciences' in accordance with sections672 and 674 of the Individuals
with Disabilities Education Act [20 USCS 1472 and 1474], as such
sections were ineffect on October 1, 2004.".
References to intellectual disabilities. Act Oct. 5, 2010, P.L.
111-256, 2(k), 124 Stat. 2644, provides:"References. For purposes
of each provision amended by this section [for full classification,
consult USCS Tables
volumes]--"(1) a reference to 'an intellectual disability' shall
mean a condition previously referred to as 'mental retardation', or
a
variation of this term, and shall have the same meaning with
respect to programs, or qualifications for programs, forindividuals
with such a condition; and
"(2) a reference to individuals with intellectual disabilities
shall mean individuals who were previously referred to
asindividuals who are 'individuals with mental retardation' or 'the
mentally retarded', or variations of those terms.".
Rosa's Law; regulations. Act Oct. 5, 2010, P.L. 111-256, 3, 124
Stat. 2645, provides:"For purposes of regulations issued to carry
out a provision amended by this Act [for full classification,
consult USCS
Tables volumes]--"(1) before the regulations are amended to
carry out this Act--
"(A) a reference in the regulations to mental retardation shall
be considered to be a reference to an intellectualdisability;
and
"(B) a reference in the regulations to the mentally retarded, or
individuals who are mentally retarded, shall beconsidered to be a
reference to individuals with intellectual disabilities; and
"(2) in amending the regulations to carry out this Act, a
Federal agency shall ensure that the regulations clearlystate--
"(A) that an intellectual disability was formerly termed mental
retardation; and"(B) that individuals with intellectual
disabilities were formerly termed individuals who are mentally
retarded.".
Rosa's Law; construction. Act Oct. 5, 2010, P.L. 111-256, 4, 124
Stat. 2645, provides:"This Act shall be construed to make
amendments to provisions of Federal law to substitute the term "an
intellectual
disability" for "mental retardation", and "individuals with
intellectual disabilities" for "the mentally retarded"
or"individuals who are mentally retarded", without any intent
to--
"(1) change the coverage, eligibility, rights, responsibilities,
or definitions referred to in the amended provisions; or"(2) compel
States to change terminology in State laws for individuals covered
by a provision amended by this Act
[for full classification, consult USCS Tables volumes].".
NOTES:
Page 620 USCS 1400
-
Code of Federal Regulations:Office of the Secretary of
Defense--Provision of early intervention and special education
services to eligible DoD
dependents in overseas areas, 32 CFR 57.1 et seq.Office of the
Secretary of Defense--Provision of early intervention services to
eligible infants and toddlers with
disabilities and their families, and special education children
with disabilities within the Section 6 school arrangements,32 CFR
80.1 et seq.
Research Guide:
Federal Procedure:10 Moore's Federal Practice (Matthew Bender 3d
ed.), ch 54, Judgment; Costs 54.172.13 Moore's Federal Practice
(Matthew Bender 3d ed.), ch 68, Offer of Judgment 68.02.17A Moore's
Federal Practice (Matthew Bender 3d ed.), ch 123, Access to Courts:
Eleventh Amendment and State
Sovereign Immunity 123.42.18 Moore's Federal Practice (Matthew
Bender 3d ed.), ch 133, Intersystem Preclusion 133.42.19 Moore's
Federal Practice (Matthew Bender 3d ed.), ch 205, Reviewability of
Issues 205.02.2 Civil Rights Actions (Matthew Bender), ch 7,
Deprivation of Rights Under Color of State Law--General
Principles
(Civil Rights Act of 1871, 42 U.S.C. 1983) P 7.06.3 Civil Rights
Actions (Matthew Bender), ch 17, Discrimination in Federally
Assisted Programs PP 17.01, 17.33,
17.39, 17.41.5 Civil Rights Actions (Matthew Bender), ch 22A,
Rights of Americans with Disabilities (Americans with
Disabilities
Act of 1990, as amended through 1991, 42 U.S.C. 12101-12213) P
22A.01.6 Administrative Law (Matthew Bender), ch 54, Grant Dispute
Resolution Procedures of Particular Agencies 54.04.6 Fed Proc L Ed,
Civil Rights 11:86, 286.17A Fed Proc L Ed, Health, Education, and
Welfare 42:1529.
Am Jur:15A Am Jur 2d, Colleges and Universities 37.45A Am Jur
2d, Job Discrimination 168-213.52 Am Jur 2d, Mandamus 235.67B Am
Jur 2d, Schools 258, 299, 372, 384, 399.68 Am Jur 2d, Schools
460.
Am Jur Proof of Facts:93 Am Jur Proof of Facts 3d, Parents' or
Student's Proof in Action for Educational Services or Tuition
Reimbursement
Under the Special Education Laws, p. 1.99 Am Jur Proof of Facts
3d, School District's Proof that Services Offered to Student with
Disabilities Met Statutory
Standards, p. 237.108 Am Jur Proof of Facts 3d, Proof of Public
School District Liability for Injuries or Damages to Student
Resulting
from Harassment of Student by Teacher or Other District Staff
Member, p. 1.
Forms:5 Fed Procedural Forms L Ed, Civil Rights (2006) 10:266,
268-281, 284, 286, 288, 291-294, 296, 297.
Page 720 USCS 1400
-
10B Fed Procedural Forms L Ed, Health, Education, and Welfare
(2006) 37:59.22 Am Jur Pl & Pr Forms (Rev ed), Schools 136,
137, 161-167.
Labor and Employment:6 Larson on Employment Discrimination, ch
102, Section 1983 102.08.7 Labor and Employment Law (Matthew
Bender), ch 171, Special Rules for Teachers and Local
Educational
Agencies 171.01.
Annotations:Supreme Court's views as to awards of attorneys'
fees in federal civil rights cases. 87 L Ed 2d 713.Construction and
Application of Individuals with Disabilities Education Act, 20
U.S.C.A. 1400 et seq. [20 USCS
1400 et seq.]--Supreme Court Cases. 13 ALR Fed 2d 321.Rights of
Parents to Proceed Pro Se in Actions Under Individuals with
Disabilities Education Act. 16 ALR Fed 2d
467.Statute of Limitations Applicable to, and Accrual of,
Actions for Attorney's Fees Brought Under Individuals with
Disabilities Education Act, 615(i)(3)(B), as amended, 20
U.S.C.A. 1415(i)(3)(B) [20 USCS 1415(i)(3)(B)]. 23ALR Fed 2d
553.
Jurisdiction of Court to Award Attorney's Fees as Part of Costs
Under Individuals with Disabilities Education Act, 20U.S.C.A.
1415(i)(3)(B) [20 USCS 1415(i)(3)(B)]. 27 ALR Fed 2d 341.
Construction and effect of 504 of the Rehabilitation Act of 1973
(29 USCS 794) prohibiting discrimination againstotherwise qualified
handicapped individuals in specified programs or activities. 44 ALR
Fed 148.
Actions, under 42 USCS 1983, for violations of federal statutes
pertaining to rights of handicapped persons. 63 ALRFed 215.
Availability of Damages in Action to Remedy Violations of
Individuals with Disabilities Education Act (20 U.S.C.A. 1400 et
seq. [20 USCS 1400 et seq.]). 165 ALR Fed 463.
Effect of Appointment of Legal Representative for Person Under
Mental Disability or Running of State Statute ofLimitations Against
Such Person. 111 ALR5th 159.
Special Education Requirements of Gifted Students. 115 ALR5th
183.
Texts:Cohen's Handbook of Federal Indian Law (Matthew Bender),
ch 22, Government Services for Indians 22.03.1 Rapp, Education Law
(Matthew Bender), ch 3, Governing Agencies, Boards, Officers and
Authorities 3.01, 3.09.1 Rapp, Education Law (Matthew Bender), ch
5, Funding, Support and Finances of Education 5.01.3 Rapp,
Education Law (Matthew Bender), ch 8, The Student-Educational
Institution Relationship 8.02, 8.07.3 Rapp, Education Law (Matthew
Bender), ch 9, Student Safety, Control and Discipline 9.10.4 Rapp,
Education Law (Matthew Bender), ch 10, Educational Opportunities
and Equality 10.01, 10.15,
10.18-10.20, 10.26, 10.27.5 Rapp, Education Law (Matthew
Bender), ch 12, General Liabilities and Litigation 12.03.5 Rapp,
Education Law (Matthew Bender), ch 13, Education Records Management
and Retention 13.04.
Law Review Articles:Stark. Tragic Choices in Special Education:
The Effect of Scarce Resources on the Implementation of Pub. L.
No.
94-142. 14 Connecticut L Rev 477, Spring, 1982.
Page 820 USCS 1400
-
Nelson. Siegel, Corporal punishment and handicapped children. 64
Fla B J 43, 1990.Jones. Educational Rights of Handicapped Children.
19 Harv J on Legis 287, Summer 1982.An autopsy of the Medicare
Catastrophic Coverage Act of 1988. 18 N Ky L Rev 41, Fall
1990.Rothstein. Educational Rights of Severely and Profoundly
Handicapped Children. 61 Neb L Rev 586, 1982.Bandes. The Idea of a
Case. 42 Stan L Rev 227, January 1990.Shavers. Hurricane Katrina
Symposium Article: Katrina's Children: Revealing the Broken Promise
of Education. 31
T Marshall L Rev 499, Spring 2006.Sido; King. Monetary Remedies
under the Education for All Handicapped Children Act: Toward a New
Civil Rights
Act? 23 Tort & Ins L J 711, Summer 1988.
Interpretive Notes and Decisions:I.IN GENERAL .1. US Supreme
Court Alerts 1. Generally 2. Relationship to other laws
3.--Rehabilitation Act 4.Purpose 5. Applicability 6. Free
appropriate public education 7. Special education and related
services 8. Miscellaneous
II.PRACTICE AND PROCEDURE 9. Parties 10.--Standing 11.--Immunity
12. Pendent state claims 13.Mootness 14. Statutes of limitations
15. Evidence 16. Summary judgment 17. Remedies orrelief
18.--Damages 19.--Injunctions and restraining orders 20. Attorney's
fees and costs 21. Miscellaneous
I.IN GENERAL .1. US Supreme Court Alerts
US Supreme Court Case Alert--On January 16, 2009, Court granted
petition for writ of certiorari to Ninth Circuiton question of
whether Individuals with Disabilities Education Act (20 USCS 1400
et seq.) permitstuition-reimbursement award against school district
and in favor of parents who unilaterally place their child in
privateschool, where child allegedly has not previously received
special education and related services under authority ofpublic
agency. Forest Grove Sch. Dist. v T.A. (2008, CA9 Or) 523 F3d 1078,
cert gr (US) 77 USLW 3412.
1. Generally
Requirement of Education for All Handicapped Children Act of
1975 (20 USCS 1401 et seq.) that state providespecialized
educational services to handicapped children generates no
additional requirement that services so providedbe sufficient to
maximize each child's potential commensurate with opportunity
provided other children, so as toachieve strict equality of
opportunity or services; rather, Congress sought primarily to
identify and evaluatehandicapped children, and to provide them with
access to free public education. Board of Education v Rowley
(1982)458 US 176, 73 L Ed 2d 690, 102 S Ct 3034, 1 ADD 85.
Individuals with Disabilities Education Act (IDEA) (20 USCS 1400
et seq.) (2) requires participating states toeducate handicapped
children with nonhandicapped children whenever possible. Cedar
Rapids Community Sch. Dist. vGarret F. by Charlene F. (1999) 526 US
66, 143 L Ed 2d 154, 119 S Ct 992, 6 ADD 6092, 99 CDOS 1582, 99
DailyJournal DAR 2029, 1999 Colo J C A R 1126, 12 FLW Fed S 129,
161 ALR Fed 683.
IDEA (20 USCS 1400 et seq.) is not satisfied by affording
student de minimis educational benefit. M.C. ex rel.J.C. v Central
Regional Sch. Dist. (1996, CA3 NJ) 81 F3d 389, 16 ADD 94, cert den
(1996) 519 US 866, 117 S Ct 176,136 L Ed 2d 116 and (criticized in
Reid ex rel. Reid v District of Columbia (2005, App DC) 365 US App
DC 234, 401F3d 516).
Amendments to IDEA (20 USCS 1400-1487) passed by Congress on
June 4, 1997, do not have retroactiveapplication with respect to
cases pending on date of enactment. Tucker by & Through Tucker
v Calloway County Bd. ofEduc. (1998, CA6 Ky) 136 F3d 495, 1998 FED
App 57P, reh den (1998, CA6) 1998 US App LEXIS 31393.
Page 920 USCS 1400
-
Individuals with Disabilities Education Act, 20 USCS 1400 et
seq. leaves intact state's authority to determinewho may make
educational decisions on behalf of child, so long as state does so
in manner consistent with federalstatutes. Taylor v Vt. Dep't of
Educ. (2002, CA2 Vt) 313 F3d 768 (criticized in Selkridge v United
of Omaha Life Ins.Co. (2004, CA3) 45 VI 712, 360 F3d 155, 32 EBC
1349).
In order for residential placement to be appropriate under
Individuals with Disabilities Education Act, 20 USCS 1400-1487,
placement must be 1) essential in order for disabled child to
receive meaningful educational benefit, and 2)primarily oriented
toward enabling child to obtain education; this test does not make
reimbursement determinationcontingent on court's ability to conduct
arguably impossible task of segregating child's medical, social,
emotional, andeducational problems. Richardson Indep. Sch. Dist. v
Michael Z (2009, CA5 Tex) 580 F3d 286.
Compensatory and punitive damages are not available remedy under
Individuals with Disabilities Education Act,20 USCS 1400 et seq.
Chambers v Sch. Dist. of Phila. Bd. of Educ. (2009, CA3 Pa) 587 F3d
176.
While Individuals with Disabilities in Education Act (IDEA), 20
USCS 1400 et seq., requires districts to provideappropriate
education to disabled students, this is not necessarily synonymous
with offering disabled students besteducational opportunities
available; IDEA only requires that districts give disabled students
basic floor of opportunitiesconsisting of access to specialized
institutions and related services that are individually designed to
provide educationalbenefits. Watson v Kingston City Sch. Dist.
(2004, ND NY) 325 F Supp 2d 141, affd (2005, CA2 NY) 142 Fed Appx
9,cert den (2006, US) 126 S Ct 1040, 163 L Ed 2d 857.
Unpublished Opinions
Unpublished: Under Individuals with Disabilities Education Act,
department of education was required to pay costsof child's
temporary placement in private school; given child's needs, court
agreed with trial court's findings and noteddepartment was unable
to provide, as required by 20 USCS 1400(d)(1)(A), 1412(a)(1)(A),
free, appropriate publiceducation. Zayas v Puerto Rico (2005, CA1
Puerto Rico) 2005 US App LEXIS 28323.
2. Relationship to other laws
Regulation requiring that handicapped children be afforded
"equal opportunity for participation" in extracurricularservices
and activities was invalid as in conflict with pronouncements of
U.S. Supreme Court in Rowley that, underEducation for All
Handicapped Children Act (20 USCS 1400 et seq.), requiring states
to provide educationalopportunities to handicapped children that
were "equal" to those provided to non-handicapped children would
beunworkable and require impossible measurements and comparisons.
Rettig v Kent City School Dist. (1986, CA6 Ohio)788 F2d 328, cert
den (1986) 478 US 1005, 92 L Ed 2d 711, 106 S Ct 3297.
State educational agency, and not school district, was
responsible for out-of-state private education of disabledchild
under Individuals with Disabilities in Education Act, 20 USCS 1400
et seq., because under Mo. Rev. Stat. 160.735 state was not limited
to contracting with in-state agencies in providing suitable
education under IDEA, butunder Mo. Rev. Stat. 162.705(1) district
was restricted to contracting with "any organization within state."
Mo. Dep'tof Elem. & Secondary Educ. v Springfield R-12 (2004,
CA8 Mo) 358 F3d 992.
Concerned parents are enjoined from any actions which interfere
with or circumvent public school placement ofchild who tested
positive HIV, is hemophiliac and has emotional disorders, despite
state law regarding contagiousdiseases, because Education of
Handicapped Act (20 USCS 1400 et seq.) procedures for placement of
handicappedchildren in free, appropriate public education preempt
state law. Parents of Child, Code No. 870901W v Coker (1987,ED
Okla) 676 F Supp 1072.
Although Individuals with Disabilities Education Act (IDEA), 20
USCS 1400 et seq., did not provide for moneydamages, where
plaintiffs sought compensatory and punitive damages under 42 USCS
1983 for deprivation ofstudent's rights under Fourteenth Amendment
and IDEA, plaintiffs' complaint was not subject to dismissal. J.R.
v
Page 1020 USCS 1400
-
Waterbury Bd. of Educ. (2001, DC Conn) 272 F Supp 2d 174.
Students that attended schools administered under Tribally
Controlled Schools Act (TCSA), 25 USCS 2501 to2511, had standing to
bring action against Bureau of Indian Affairs (BIA) and Department
of Interior (DOI) fordeclaratory and compensatory relief because
students' alleged injury was traceable to BIA and DOI, BIA and DOI
hadobligation to assure that students received free appropriate
public education and that obligation was not abrogated byTCSA, and
students demonstrated that their injuries were redressable.
Bitsilly v BIA (2003, DC NM) 253 F Supp 2d1257.
Significant jeopardy standard for determining when to provide
Extended School Year services comports withIndividuals with
Disabilities in Education Act. McQueen v Colo. Springs Sch. Dist.
No. 11 (2006, DC Colo) 419 F Supp2d 1303.
Because IDEA and 504 of Rehabilitation Act of 1973, 29 USCS 794,
both create express, private means ofredress, 42 USCS 1983 action
is not available to remedy violations of rights created by those
statutes. Travis G. v NewHope-Solebury Sch. Dist. (2008, ED Pa) 544
F Supp 2d 435.
Although state review officer's decision issued under N.Y. Educ.
Law. 4404 is not binding precedent under N.Y.Comp. Codes R. &
Regs. tit. 8, 279.12, it may be persuasive in 20 USCS 1400 suit.
A.H. ex rel. J.H. v New YorkCity Dep't of Educ. (2009, ED NY) 652 F
Supp 2d 297.
School's motion to dismiss student's claim under 42 USCS 1983
was granted because student did not allege anyunderlying pattern or
policy of school or district to refuse to comply with hearing
officer decisions or of continuedviolations of Individuals with
Disabilities Education Act (IDEA), 20 USCS 1400 et seq. Shelton v
Maya AngelouPub. Charter Sch. (2009, DC Dist Col) 656 F Supp 2d
82.
When parent alleged claims under Americans with Disabilities
Act, 42 USCS 12101 et seq., Rehabilitation Act,29 USCS 701 et seq.,
and 42 USCS 1983, when seeking judicial review of hearing officer's
decision underIndividual with Disabilities Education Act (IDEA), 20
USCS 1400 et seq., non-IDEA claims were dismissed because(1)
precedent established that plaintiff could not use federal statute
to evade IDEA's limited remedial structure, and (2)parent alleged
no constitutional violation beyond violation of three statutes.
Millay v Surry Sch. Dep't (2010, DC Me)707 F Supp 2d 56.
Unpublished Opinions
Unpublished: Because plaintiffs failed to allege denial of
procedural safeguards or administrative remedies (theywere afforded
hearing before impartial hearing officer and review by state review
officer), plaintiffs could not rely on42 USCS 1983 to pursue
monetary damages for violations of Individuals with Disabilities
Education Act, 20 USCS 1400 et seq. Streck v Bd. of Educ. (2008,
CA2 NY) 2008 US App LEXIS 11613.
Unpublished: Because Individualized Education Plan was created
and implemented for plaintiff student, studentwas afforded access
to existing program, and district court properly dismissed
plaintiffs' Americans with DisabilitiesAct (ADA), 42 USCS 12101 et
seq., and Rehabilitation Act claims; under ADA and Rehabilitation
Act, demand forreasonable accommodations to assure access to
existing program is cognizable, but demand for additional or
differentsubstantive benefits is not. Streck v Bd. of Educ. (2008,
CA2 NY) 2008 US App LEXIS 11613.
3.--Rehabilitation Act
In suit challenging school system's decision that child did not
meet criteria to qualify as disabled student underIndividuals with
Disabilities Education Act (IDEA), 20 USCS 1400 et seq., claims
under Rehabilitation Act of 1973,29 USCS 791 et seq., were subject
to dismissal if IDEA claims were dismissed. N.L. v Knox County
Schs. (2003,CA6 Tenn) 315 F3d 688, 2003 FED App 22P, reh, en banc,
den (2003, CA6) 2003 US App LEXIS 7422.
Page 1120 USCS 1400
-
Because school district's failure to provide free appropriate
public education violates Individuals with DisabilitiesEducation
Act, 20 USCS 1400 et seq., it could also violate 29 USCS 794 and/or
42 USCS 12132; therefore,district court erred by dismissing claim
by parents of cognitively disabled child that school district's
failure to providetheir child with free and appropriate education
concurrently violated two Acts. Chambers v Sch. Dist. of Phila. Bd.
ofEduc. (2009, CA3 Pa) 587 F3d 176.
Handicapped Act (20 USCS 1401 et seq.) does not supersede 504 of
Rehabilitation Act (29 USCS 794).Georgia Asso. of Retarded Citizens
v McDaniel (1981, ND Ga) 511 F Supp 1263, affd (1983, CA11 Ga) 716
F2d 1565,37 FR Serv 2d 1038, reh den (1983, CA11 Ga) 721 F2d 822
and vacated without op, remanded (1984) 468 US 1213, 82L Ed 2d 880,
104 S Ct 3581; Georgia Ass'n of Retarded Citizens v McDaniel (1983,
CA11 Ga) 716 F2d 1565, 37 FRServ 2d 1038, reh den (1983, CA11 Ga)
721 F2d 822 and vacated without op, remanded (1984) 468 US 1213, 82
L Ed2d 880, 104 S Ct 3581.
Where public school district created accommodation plan under
504 of Rehabilitation Act of 1973, 29 USCS 794, which considered
child's disabilities and included classroom aide, use of non-verbal
signals, recessaccommodations, preferential seating, and modifying
school bells, but the child's parents rejected plan and
unilaterallyenrolled the child in private school, court found that
accommodation plan provided significant learning and
conferredmeaningful benefit under Individuals with Disabilities
Education Act, 20 USCS 1400 et seq.; thus, the parents didnot
receive reimbursement for private school tuition. Molly L. v Lower
Merion Sch. Dist. (2002, ED Pa) 194 F Supp 2d422.
Motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss 29 USCS
794(a) claim was denied because sufficient factswere alleged that
District of Columbia departed grossly from accepted Child Find
practice and standards underIndividuals with Disabilities and
Education Act, 20 USCS 1400 et seq., where it was alleged that even
after favorabledetermination by hearing officer, school system did
not bring itself into compliance, and it was alleged that
studyshowed that District of Columbia was ranked last in provision
of special education services to preschool children. Dl vD.C.
(2006, DC Dist Col) 450 F Supp 2d 21, judgment entered (2006, DC
Dist Col) 450 F Supp 2d 21.
In action that quadriplegic commenced pursuant to Title I of
Rehabilitation Act of 1973, 29 USCS 720 et seq., toobtain review of
determination of New York State Office of Vocational and
Educational Services for Individuals withDisabilities denying
quadriplegic's request for continued ambulette services, court
applied same standards of reviewapplicable under Individuals with
Disabilities Education Act, 20 USCS 1400 et seq.; accordingly,
court gave dueweight to administrative proceedings and reviewed
questions of law de novo. Carrigan v N.Y. State Educ. Dep't
(2007,ND NY) 485 F Supp 2d 131, corrected (2007, ND NY) 2007 US
Dist LEXIS 42481.
In case in which mother sued District of Columbia seeking
declaration that school district discriminated against herchild, in
violation of 504 of Rehabilitation Act, 29 USCS 794, and requesting
relief under Individuals withDisabilities Education Improvement Act
(IDEA), 20 USCS 1400 et seq., and District of Columbia filed Fed.
R. Civ.P. 12(b)(6) motion to dismiss 504 claim, contours of free
appropriate public education under IDEA and 504 werenot same; 504
was attuned to programmatic failures while IDEA was focused on
individual student who neededspecial education; mother's
allegations that school district did not conduct and review
comprehensive psychologicalevaluation of her child before date
certain and that it did not respond to her request or conduct any
of requestedevaluations before date certain did not support
allegation of any programmatic failure nor did they support
allegationthat school district discriminated against child solely
because of his disability or allegation that school district acted
inbad faith or with gross misjudgment. Torrence v District of
Columbia (2009, DC Dist Col) 669 F Supp 2d 68.
In case brought under Individuals with Disabilities Act, 20 USCS
1400 et seq., and 504 of Rehabilitation Act,29 USCS 794, in which
mother alleged that her daughter had not been provided with free
appropriate publiceducation, she failed to state claim under 504
because her facts did not support allegation that District of
ColumbiaPublic Schools acted in bad faith or with gross
misjudgment, which was required to show violation of 504; while
shealso asserted that DCPS had created and adhered to policy,
custom or practice of refusing timely to authorize funding of
Page 1220 USCS 1400
-
evaluations of special education students in District of
Columbia, including her daughter, and that policy, custom,
orpractice was evidence of bad faith and gross misjudgment,
complaint was devoid of any facts from which court couldinfer such
policy, custom, or practice. Lucas v District of Columbia (2010, DC
Dist Col) 683 F Supp 2d 16.
In case brought under Individuals with Disabilities Act, 20 USCS
1400 et seq., and 504 of Rehabilitation Act,29 USCS 794, in which
mother alleged that her son had not been provided with free
appropriate public education, shefailed to state claim under 504
because her facts did not support allegation that District of
Columbia Public Schoolsacted in bad faith or with gross
misjudgment, which was required to show violation of 504; while she
also assertedthat DCPS had created and adhered to policy, custom or
practice of refusing timely to authorize funding of evaluationsof
special education students in District of Columbia, including her
son, and that policy, custom, or practice wasevidence of bad faith
and gross misjudgment, complaint was devoid of any facts from which
court could infer suchpolicy, custom, or practice. Taylor v
District of Columbia (2010, DC Dist Col) 683 F Supp 2d 20.
Student's rights under IDEA (20 USCS 1400 et seq.) and
Rehabilitation Act (29 USCS 794) are not equivalentdue to statutory
differences. M.H. v Montana High Sch. Ass'n (1996) 280 Mont 123,
929 P2d 239, 20 ADD 300.
Unpublished Opinions
Unpublished: Res judicata barred student's action against school
arising under 504 of Rehabilitation Act becauseinstant case and
prior case brought by student under Individuals with Disabilities
Education Act involved same cause ofaction as both cases involved
student's same primary right to receive proper education, school's
same duty to provideproper education, and same nucleus of operative
facts. Draper v Atlanta Indep. Sch. Sys. (2010, CA11 Ga) 2010 US
AppLEXIS 9255.
4. Purpose
Individuals with Disabilities Education Act (IDEA) (20 USCS 1400
et seq.) is intended to open door of publiceducation to all
qualified children. Cedar Rapids Community Sch. Dist. v Garret F.
by Charlene F. (1999) 526 US 66,143 L Ed 2d 154, 119 S Ct 992, 6
ADD 6092, 99 CDOS 1582, 99 Daily Journal DAR 2029, 1999 Colo J C A
R 1126, 12FLW Fed S 129, 161 ALR Fed 683.
Under 20 USCS 1412(a)(1)(A), when it accepted Individuals with
Disabilities Education Act funding, petitionerschool district
agreed to provide free appropriate public education (FAPE) to all
children with disabilities and orderawarding reimbursement of
private-education costs for failure to provide FAPE merely required
district to belatedly payexpenses that it should have paid all
along, thus, such order was in accord with general remedial purpose
underlying Actas set forth in 20 USCS 1400(d)(1)(A), 1997
Amendments to Act, and "child find" provision of 1412(a)(3)(A);
20USCS 1412(a)(10)(C), 1415(i)(2)(C)(iii), did not establish
categorical bar to tuition reimbursement for respondentstudent who
had not previously received special-education services under
authority of school district. Forest Grove Sch.Dist. v T. A. (2009,
US) 129 S Ct 2484, 174 L Ed 2d 168, 21 FLW Fed S 983.
Congressional purpose in adopting Education for All Handicapped
Children Act (20 USCS 1400 et seq.) is toremedy condition of
handicapped children who are not receiving education appropriate to
their needs, and to that end,Congress provided federal funding to
state and local school systems for purposes of special education
and conditionedgrant of funds on compliance with federal standards.
Dubois v Connecticut State Bd. of Education (1984, CA2 Conn)727 F2d
44.
Central purpose of IDEA (20 USCS 1400 et seq.), under former 20
USCS 1400(b)(9), was to secure specialeducational entitlements to
eligible recipients. Murphy v Timberlane Regional Sch. Dist. (1994,
CA1 NH) 22 F3d 1186,5 ADD 5, cert den (1994) 513 US 987, 130 L Ed
2d 396, 115 S Ct 484 and (criticized in Powers v Indiana Dep't
ofEduc., Div. of Special Educ. (1995, CA7 Ind) 61 F3d 552, 12 ADD
417) and (criticized in S.V. v Sherwood Sch. Dist.(2001, CA9 Or)
254 F3d 877, 2001 CDOS 5358, 2001 Daily Journal DAR 6587).
Page 1320 USCS 1400
-
Congress enacted Individuals with Disabilities Education Act, 20
USCS 1400 et seq., with clear intention ofdeferring to local school
authorities for development of educational plans for disabled
children. Weast v Schaffer (2004,CA4 Md) 377 F3d 449, affd (2005,
US) 126 S Ct 528, 163 L Ed 2d 387.
Primary purpose of Individuals with Disabilities Education Act,
20 USCS 1400 et seq., is to ensure freeappropriate public
education, not to serve as tort-like mechanism for compensating
personal injury. Ortega v BibbCounty Sch. Dist. (2005, CA11 Ga) 397
F3d 1321, 18 FLW Fed C 196.
District court properly admitted but accorded no weight to
additional evidence submitted by parents who soughtreimbursement of
private school tuition and expenses for their son's eighth grade
year under 20 USCS 1415(i)(2)(C)(ii) because 10 years of litigation
disserved purpose of 20 USCS 1400(d), which was to include
disabledstudents in public education system as quickly as possible.
Schaffer v Weast (2009, CA4 Md) 554 F3d 470.
Disabled children were not entitled to injunction enforcing
Individuals with Disabilities Education Act's stay-putprovision of
20 USCS 1415(j) during period of Friday furloughs because their
educational setting was not changed byfurloughs; in light of Act's
mainstreaming purpose, stated in 20 USCS 1400, provision was not
intended to apply tosystem-wide changes that affected both disabled
and nondisabled children alike. N. D. v State Dep't of Educ.
(2010,CA9 Hawaii) 600 F3d 1104.
Purpose of IDEA (20 USCS 1400 et seq.) is to open door of public
education to children with disabilities, not toeducate child with
disability to his or her highest potential. MR by R.R. v
Lincolnwood Bd. of Educ. (1994, ND Ill) 843F Supp 1236, 4 ADD 195,
affd without op sub nom Rheinstrom by Rheinstrom v Lincolnwood Bd.
of Educ. Dist. 74(1995, CA7 Ill) 56 F3d 67, reported in full (1995,
CA7 Ill) 1995 US App LEXIS 10781, reh, en banc, den (1995, CA7Ill)
1995 US App LEXIS 13700.
As set forth in 20 USCS 1400(c), Individuals with Disabilities
Education Act (IDEA), 20 USCS 1400 et seq.,was enacted to assure
that all children with disabilities have available to them free
appropriate public education. Smith vIsle of Wight County Sch. Bd.
(2003, ED Va) 284 F Supp 2d 370, affd in part and revd in part,
remanded (2005, CA4Va) 402 F3d 468.
20 USCS 1400(c)(4) and (5), parts of Individuals with
Disabilities Education Act (IDEA), 20 USCS 1400 etseq., show that
Congress did not enact IDEA for purpose of meeting minimum level of
service. J.P. v County Sch. Bd.(2006, ED Va) 447 F Supp 2d 553.
5. Applicability
IDEA (20 USCS 1400 et seq.) does not give disabled student right
to placement in his neighborhood school.Urban by Urban v Jefferson
County Sch. Dist. R-1 (1996, CA10 Colo) 89 F3d 720, 17 ADD 854, 5
AD Cas 1135(superseded by statute on other grounds as stated in
N.L. v Knox County Schs. (2003, CA6 Tenn) 315 F3d 688, 2003FED App
22P).
IDEA (20 USCS 1400-1485) does not require that educational
agencies test all children for whom evaluationsare requested.
Pasatiempo by Pasatiempo v Aizawa (1996, CA9 Hawaii) 103 F3d 796,
19 ADD 826, 96 CDOS 9216, 96Daily Journal DAR 15203.
Although IDEA (20 USCS 1400 et seq.) grants parents ample
procedural rights to ensure active parentalinvolvement at all
stages of development and implementation of child's IEP, even
through administrative process, IDEAdoes not confer on parents same
underlying substantive rights that their children possess.
Collinsgru v Palmyra Bd. ofEduc. (1998, CA3 NJ) 161 F3d 225
(criticized in Maroni v Pemi-Baker Reg'l Sch. Dist. (2003, CA1 NH)
346 F3d 247).
IDEA (20 USCS 1400 et seq.) contains no provision protecting
educational rights of gifted students. Brad J. byCharles J. v
Pennsylvania, Dep't of Educ. (1995, ED Pa) 10 ADD 176.
Page 1420 USCS 1400
-
IDEA (20 USCS 1400 et seq.) did not provide relief against
teacher who used facilitative communicator devicewith 4 year-old
child, although its use was not incorporated in child's IEP, and by
guiding child's hand produceddocuments which teacher used to
fraudulently charge parents with child abuse, since IDEA was not
intended to provideprocedural or substantive protection against
such atrocity. Morris v Dearborne (1999, ED Tex) 69 F Supp 2d
868.
Disabled student could not assert claim that university violated
Individuals with Disabilities in Education Act bynot providing
adequate handicapped parking near mail facility in which student's
group maintained mailbox becausestatute did not apply to adults.
Brownscombe v Dep't of Campus Parking (2002, DC Md) 203 F Supp 2d
479.
Mother's request that regular school bus driver deliver her
learning disabled child to adult was not covered byIndividuals with
Disabilities Education Act, 20 USCS 1400-1487, and state's
education laws as it did not addresschild's educational needs. S. v
Scarborough Sch. Comm. (2005, DC Me) 366 F Supp 2d 98.
Because parents were requesting relief that was unavailable
through Individuals with Disabilities Education Act(IDEA), 20 USCS
1400 et seq., administrative process, IDEA eligibility was not at
issue, and relevant factual recordcould be adequately developed
through standard discovery procedures; thus, parents' failure to
exhaust under 20 USCS 1415(l) did not subject their claims to
dismissal. Vicky M. v Northeastern Educ. Intermediate Unit 19
(2007, MD Pa)486 F Supp 2d 437.
6. Free appropriate public education
U.S. Supreme Court affirmed, by equally divided court (with one
Justice not participating), Court of Appeals'judgment in case
involving question whether Court of Appeals' decision--assertedly
to effect that Individuals withDisabilities Education Act (IDEA)
(20 USCS 1400 et seq.) permitted tuition reimbursement to parent of
student atprivate school--contradicted plain language of IDEA
provision (20 USCS 1412(a)(10)(C)(ii)), which authorizedtuition
reimbursement to parents of child with disability "who previously
received special education and related servicesunder authority of
public agency." Bd. of Educ. v Tom F. ex rel. Gilbert F. (2007, US)
128 S Ct 1, 169 L Ed 2d 1, 21FLW Fed S 1.
Procedural defects alone do not constitute violation of right to
free appropriate public education unless they resultin loss of
educational opportunity. Adam J. v Keller Indep. Sch. Dist. (2003,
CA5 Tex) 328 F3d 804.
In case brought by disabled student under Individuals with
Disabilities in Education Act (IDEA), 20 USCS 1400et seq., court
upheld district court's affirmance of administrative law judge's
(ALJ's) finding that, with exception ofclaim of inadequate math
instruction, school district did not violate student's or his
parents' rights under IDEA becauseits failure to implement each
provision of student's individualized education program (IEP),
which was developed under20 USCS 1414, was not material as services
provided did not fall significantly short of those required by IEP;
thus,student was not deprived of free appropriate public education
as required under 20 USCS 1401(9); however, to extentthat student's
mother did not act as his attorney, he was entitled to recover
attorney's fees with respect to math claimunder 20 USCS 1415 as he
was prevailing party on that claim before ALJ. Van Duyn v Baker
Sch. Dist. 5J (2007, CA9Or) 481 F3d 770.
Public school district did not deprive student of free
appropriate public education, in violation of its duties under
20USCS 1400(d)(1)(A), 1401(14) merely because student failed to
meet behavioral goals set out in individualizededucation program
(IEP) developed for her pursuant to 20 USCS 1414(d) where (1)
student's primary disability wasbehavioral disorder, which caused
her to repeatedly attack her fellow students and school district
staff; (2) student'syear-end progress report stated that she had
made adequate progress on her academic goals and that she
madebehavioral progress after she was transferred to different
school; and (3) given nature of student's disability, district
didnot violate IDEA merely because student did not meet her
behavioral goals set out in her IEP. M.M. v Special Sch. Dist.No. 1
(2008, CA8 Minn) 512 F3d 455.
Because defendant student's interaction with others in regular
classroom was significantly limited even under
Page 1520 USCS 1400
-
individualized education plan's proposals to deal with hearing
impairments, she had insufficient supplemental servicesfrom
plaintiff school district to meet her unique needs under 29 USCS
1400 and to be successful, and while student'sregular education
placement was certainly less restrictive environment under 20 USCS
1415(a)(5)(A) than her privateschool placement, there still had to
be appropriate education under 1415(a)(5)(A). Houston Indep. Sch.
Dist. v VP(2009, CA5 Tex) 566 F3d 459.
There is no plausible way to read definition of "transition
services" as changing free appropriate public educationstandard. J.
L. v Mercer Island Sch. Dist. (2009, CA9 Wash) 575 F3d 1025.
Proper standard to determine whether disabled child has received
free appropriate public education is "educationalbenefit" standard
set forth by U.S. Supreme Court in Rowley. J. L. v Mercer Island
Sch. Dist. (2009, CA9 Wash) 575F3d 1025.
Some confusion exists in Ninth Circuit regarding whether
Individuals with Disabilities Education Act, 20 USCS 1400-1491,
requires school districts to provide disabled students with
"educational benefit," "some educational benefit"or "meaningful"
educational benefit; all three phrases refer to same standard.
School districts must, to make such accessmeaningful, confer at
least some educational benefit on disabled students. J. L. v Mercer
Island Sch. Dist. (2009, CA9Wash) 575 F3d 1025.
While plaintiff child argued defendant school district offered
no mainstream public classes for preschool childrenand that, thus,
it was required to begin with presumption that it would place him
in only mainstream placementavailable--private preschool for
typically developing children--and remove him from private setting
only if privateplacement could not provide satisfactory education,
argument failed because as evidenced by 20 USCS
1400(c)(2)(B),removal to private school placement was exception,
not default. R.H. v Plano Indep. Sch. Dist. (2010, CA5 Tex) 607F3d
1003.
Under 20 USCS 1400(c), free appropriate public education
described in individualized educational program neednot be best
possible one, nor one that will maximize child's educational
potential, but, rather, it need only be educationspecifically
designed to meet child's unique needs, supported by services that
will permit child to benefit frominstruction. Sylvie M. v Board of
Educ. (1999, WD Tex) 48 F Supp 2d 681, affd (2000, CA5 Tex) 214 F3d
1351, certden (2000) 531 US 879, 148 L Ed 2d 131, 121 S Ct 190.
Free appropriate public education to which disabled child is
entitled under 20 USCS 1400(d), although notrequiring school to
maximize child's potential, does require that child receive access
to specialized instruction andrelated services that are
individually designed to provide educational benefit, and that
educational placement be likely toproduce progress, not regression
or trivial educational advance. Board of Educ. v Hunter (2000, DC
Md) 84 F Supp 2d702.
School district did not violate Individuals with Disabilities
Education Act, 20 USCS 1400 et seq., where schooldistrict's delay
in formulating disabled child's Individualized Educational Program
and determining her placement didnot violate her rights to free
appropriate public education under 20 USCS 1400(d)(1)(A). Shaw v
District of Columbia(2002, DC Dist Col) 238 F Supp 2d 127.
Court granted school district's motion for judgment on record
because district was not mandated by reference toplaintiff parents'
choice of personal care attendant (PCA) to use that attendant, and
replacing PCA chosen by parentswith district-employed assistant did
not deny child free appropriate public education. Slama v Indep.
Sch. Dist. No. 2580(2003, DC Minn) 259 F Supp 2d 880.
Decision of public school hearing officer to require school to
provide aide to assist wheelchair-bound child from hisresidence to
school bus was affirmed; school's refusal to provide aide denied
child free appropriate public education, asguaranteed by 20 USCS
1400(d)(1)(A), 1401(22), because child was unable to attend school
and obtain educationalservices provided by his individualized
education program; moreover, if school's regulations and policies
did not permit
Page 1620 USCS 1400
-
provision of aide to transport minor child between his residence
and school bus, they violated Individuals withDisabilities Act, 20
USCS 1400 et seq. District of Columbia v Ramirez (2005, DC Dist
Col) 377 F Supp 2d 63.
State of Hawaii Department of Education complied with
requirements of Individuals with Disabilities EducationAct, 20 USCS
1400 et seq., though it refused to hire skills trainer with
experience with Asperger's syndrome aftereducation of student with
Asperger's syndrome allegedly began to deteriorate, because
Department had adequatelyprovided student with individualized
education plan and had offered student free appropriate public
education asdefined at 20 USCS 1401(9); Department was not required
to provide absolute best or "potential-maximizing"education for
student. B.V. v Dep't of Educ. (2005, DC Hawaii) 451 F Supp 2d
1113.
Individuals with Disabilities Education Act (IDEA), 20 USCS 1400
et seq., clearly requires school district toassume pendente lite
costs of private educational placement once state hearing officer
rules that public placementproposed in individualized educational
plan (IEP) is inappropriate and that private placement is
appropriate; this is truebecause (1) IDEA, when construed as whole,
requires local education authority to provide all disabled children
with freeappropriate public education as condition of accepting
federal funding and (2) decision of state hearing officer that
IEPis inappropriate and private school placement is appropriate is
agreement within meaning of 20 USCS 1415(j). CountySch. Bd. v RT
(2006, ED Va) 433 F Supp 2d 692.
Decisions of appeal officer that were challenged by parents were
affirmed; parents' notion was rejected that schoolpersonnel had to
be wrong whenever they did not choose parent's preferred methods of
reading instruction and auditoryformat, and parents failed to prove
that their preferred methods were only ones that could provide
their son with freeappropriate public education to which he was
entitled under Individuals with Disabilities Education Act, 20 USCS
1400 et seq. Miller ex rel. S.M. v Bd. of Educ. (2006, DC NM) 455 F
Supp 2d 1286.
Appropriate standard for determining whether individual
education program provides free and appropriate publiceducation is
whether it is reasonably calculated to enable child to receive
educational benefits; accordingly, despiteamendments made to
Individuals with Disabilities Education Act (IDEA), act does not
require school district tomaximize student's potential, but only
requires district to provide special needs students with
educational benefits. SanRafael Elem. Sch. Dist. v Cal. Special
Educ. Hearing Office (2007, ND Cal) 182 F Supp 2d 1152.
In case arising under Individuals With Disabilities Education
Act, 20 USCS 1400 et seq., in which child'sindividualized education
program (IEP) was violated because: (1) speech therapist missed
handful of session; (2) speechtherapist cut other session short
because child's fatigue was rendering therapy unproductive; and (3)
other sessions didnot take place due to snow days, holidays,
child's absence from school, and like, district court granted
summaryjudgment in favor of District of Columbia and school
superintendent because failure to follow IEP's requirements
toletter was excusable under circumstances; such failures were not
material. Catalan v Dist. of Columbia (2007, DC DistCol) 478 F Supp
2d 73.
Hearing officer properly found that county board of education's
proposed placement of student with cochlearimplants in its Head
Start collaborative program satisfied Individuals with Disabilities
Education Act, 20 USCS 1400et seq., because, inter alia, student
could receive educational benefit, notwithstanding fact that
program was not made upof 100% typically developing children. A.U.
v Roane County Bd. of Educ. (2007, ED Tenn) 501 F Supp 2d 1134.
Plaintiff's 42 USCS 1983 claim against District of Columbia and
public charter school failed to state claim foralleged violations
of IDEA for failure to provide plaintiff's child with appropriate
education services under 20 USCS 1400(d), 1401(11), and 1414
because claim was legally moribund in that no facts demonstrated
that exceptionalcircumstances rendered conduct persistently
egregious or why normal IDEA remedies did not offer
adequatecompensation. B.R. v District of Columbia (2007, DC Dist
Col) 524 F Supp 2d 35.
2004 amendments to IDEA, such as those codified in 20 USCS
1400(c)(5), did not alter Rowley standardregarding provision of
free appropriate public education (FAPE) pursuant to 20 USCS
1412(a)(1), which was based
Page 1720 USCS 1400
-
on definition of FAPE contained in 20 USCS 1401(9); Rowley
standard had been prominent for more than 25 years,and Congress had
not articulated disagreement with it or amended definition of FAPE,
propelling finding thatstandard-that FAPE required that education
to which access was provided be sufficient to confer some
educationalbenefit upon handicapped child-survived; though it was
argued that 34 CFR 300.320(a)(4) showed substantialincrease in
IDEA's focus on academic and transition services, such regulation
was part of definition of what had to beincluded in individualized
education plan and was identical to statutory language in 20 USCS
1414(d)(1)(a)(i)(IV,which existed prior to 2004 IDEA amendments. C.
v Me. Sch. Admin. Dist. No. 6 (2008, DC Me) 538 F Supp 2d 298.
In case brought under Individuals with Disabilities Education
Act, mother was entitled to summary judgmentbecause functional
behavioral assessment had not been performed on her daughter in
over two years; District ofColumbia had failed to appropriately
monitor daughter's progress under individualized education program,
therebydepriving her of free appropriate public education;
functional behavioral assessment was educational evaluation
forpurposes of 34 CFR 300.502. Harris v District of Columbia (2008,
DC Dist Col) 561 F Supp 2d 63.
While District of Delaware court does not recommend having
disabled child attend school without individualizededucation
program (IEP) in place, one week delay in putting IEP in place is
minor procedural error; in such situation,absence of IEP on first
day of school does not equate to denial of child's right to free
appropriate public education. C.H.v Cape Henlopen Sch. Dist. (2008,
DC Del) 566 F Supp 2d 352.
Because state education agency was ultimately responsible for
ensuring that broad goals of Individuals withDisabilities Education
Act (IDEA), 20 USCS 1400 et seq., were met and because state law
failed to provide alternatemethod of allocating responsibility for
minor's free and appropriate public education (FAPE) while he was
atout-of-state residential treatment facility, ultimate
responsibility for providing FAPE rested with state agency.
OrangeCounty Dep't of Educ. v A.S. (2008, CD Cal) 567 F Supp 2d
1165.
Changes to Individuals with Disabilities Education Act in 20
USCS 1400(c)(5)(A), 1401(17), (34), 1412(a)(15),as compared to its
predecessor Education of Handicapped Act, did not change standard
to be applied to determiningwhether conforming Individual Education
Program (IEP) had been developed and in appellant parents' action
againstappellee school district, standard that IEP had to provide
"meaningful" educational benefit still applied. K.C. vMansfield
Indep. Sch. Dist. (2009, ND Tex) 618 F Supp 2d 568.
In mother's suit seeking compensatory education award, where
hearing officer found there was convincing evidencethat school
system failed to provide all of services in son's program, remand
was necessary because administrativerecord was insufficient to
determine whether son was denied free appropriate public education
when school system didnot provide all of services in son's program.
Banks v District of Columbia (2010, DC Dist Col) 720 F Supp 2d
83.
Unpublished Opinions
Unpublished: Disabled student was not denied access to high
school classroom in violation of Individuals withDisabilities
Education Act, 20 USCS 1400 et seq., because he was provided aide
and acceptable alternate route toreach classroom; taking that route
did not affect student's ability to receive meaningful educational
benefit under hisindividualized education plan and, thus, did not
deny him free and appropriate public education. Logwood v La. Dep't
ofEduc. (2006, CA5 La) 2006 US App LEXIS 21450.
Unpublished: Disabled student was not denied access to high
school auditorium stage in violation of Individualswith
Disabilities Education Act, 20 USCS 1400 et seq., because, while
stage was not wheelchair accessible whenstudent was participating
in high school drama club, he did not audition for any plays and
did not participate in anyactivity that required him to be on
stage; if he had, activity would have been moved to
handicapped-accessiblegymnasium, as had occurred in past;
therefore, student was not denied meaningful educational benefit
and, thus, wasnot denied free and appropriate public education.
Logwood v La. Dep't of Educ. (2006, CA5 La) 2006 US App
LEXIS21450.
Page 1820 USCS 1400
-
Unpublished: In action brought by plaintiffs, parents and child,
against school district, district court properlydetermined that
district provided child with "free appropriate public education"
(FAPE) as required by Individuals withDisabilities Education Act
(IDEA), 20 USCS 1400 et seq., because plaintiffs were not entitled
to tuitionreimbursement for 2001-2002 school year because school
district should not have to reimburse parents for educationexpenses
before it received sufficient notice, through due process request,
that parents challenged adequacy of FAPEprovided, and at time
plaintiffs sought due process, district remained unaware of
parents' dissatisfaction with its FAPEservices; plaintiffs were not
entitled to tuition reimbursement for 2002-2003 school year also
because district'sIndividualized Educational Program provided them
with meaningful educational benefit; further,
plaintiffs'compensatory education claim was properly denied because
they had not shown that district denied child adequateeducation.
Marissa F. v William Penn Sch. Dist. (2006, CA3 Pa) 2006 US App
LEXIS 24364.
Unpublished: Action brought by plaintiffs, minor and his father,
against defendants, school district, itssuperintendent, and
district employees, alleging violations of 20 USCS 1400 et seq.;
504 of Rehabilitation Act of1973, 29 USCS 794a; 42 USCS 12101 et
seq.; 42 USCS 1983; and various provisions of Georgia law,
wasproperly dismissed because plaintiffs' claims concerned whether
defendants' actions in November 2003 violated IDEAand constituted
breach of provisions of parties' settlement agreement, and thus,
minor's alleged injuries primarily relatedto provision of his "free
and appropriate public education" and constituted educational
injuries, so plaintiffs wererequired to exhaust their
administrative remedies pursuant to 20 USCS 1415(l) before filing
court action. J.P. vCherokee County Bd. of Educ. (2007, CA11 Ga)
2007 US App LEXIS 4400.
Unpublished: In case brought pursuant to Individuals with
Disabilities Education Act, in which parents soughtreimbursement
for costs incurred while their child was enrolled in residential
treatment facility, district court's entry ofsummary judgment in
favor of school board was affirmed since parents' evidence related
to child's behavior outsideclassroom; it did not raise genuine
issue of material fact regarding whether day school in which child
had beenpreviously enrolled provided child with free appropriate
public education. L.G., ex rel. B.G. v Sch. Bd. (2007, CA11Fla)
2007 US App LEXIS 24349.
Unpublished: District court erroneously rejected ALJ's
determination that school board had failed to provide
freeappropriate public education to student as required by
Individuals with Disabilities Education Act; ALJ properlyconcluded
that student, who had learning disability, had not received
appropriate education given that student hadabove-average
intelligence but was performing one to two years below grade level
in reading and writing. RingwoodBd. of Educ. v K.H.J. ex rel.
K.F.J. (2007, CA3 NJ) 2007 US App LEXIS 28876.
Unpublished: ALJ properly held that two school districts had to
share costs associated with providing free publiceducation under
Individuals with Disabilities Education Act, 20 USCS 1400 et seq.,
to disabled child whose divorcedparents shared joint legal and
physical custody because rule that children of divorced parents who
shared legal andphysical custody might have dual domicile for
purposes of allocating cost of their education under N.J. Stat.
Ann. 18A:38-1(a) was clearly applicable. Cumberland Reg'l High Sch.
Dist. Bd. of Educ. v Freehold Reg'l High Sch. Dist.Bd. of Educ.
(2008, CA3 NJ) 2008 US App LEXIS 20636.
Unpublished: School district and officials had not denied child
free and appropriate public education where statereviewing officer
had found that child's need were not highly intensive and that
placement in classroom with largerstudent to teacher ratio was
appropriate. E.H. v Bd. of Educ. (2009, CA2 NY) 2009 US App LEXIS
22757.
Unpublished: Plaintiffs' claim, alleging that defendant school
district failed to provide plaintiff child with "free
andappropriate public education," was dismissed for failure to
exhaust administrative remedies where plaintiffs requesteddue
process hearing by state education agency less than week before
complaint was filed; because plaintiffs did notrequest that child
"stay put" in any current educational placement (they sought
placement for child in new school districtand new educational
program not yet agreed upon as part of individualized education
program), relief requested was notcontemplated by stay-put and,
therefore, did not excuse plaintiffs from exhausting administrative
remedies. J.C. v N.Harrison County Cmty. Sch. Corp. (2005, SD Ind)
60 FR Serv 3d 1001.
Page 1920 USCS 1400
-
7. Special education and related services
Education for All Handicapped Children Act (20 USCS 1400 et
seq.) mandates that all handicapped children areentitled to free
education and does not require that child will benefit from
educational program; thus multi-handicappedand profoundly retarded
child, who unquestionably fit court's definition of "handicapped
child", was entitled to specialeducation and related services.
Timothy W. v Rochester, School Dist. (1989, CA1 NH) 875 F2d 954,
cert den (1989)493 US 983, 107 L Ed 2d 520, 110 S Ct 519.
If student's parents want him to receive special education under
IDEA (20 USCS 1400 et seq.), they must allowschool itself to
reevaluate student, and they cannot force school to rely solely on
independent evaluation obtained byparents. Andress v Cleveland
Indep. Sch. Dist. (1995, CA5 Tex) 64 F3d 176, 11 ADD 649, reh den
(1995, CA5 Tex)1995 US App LEXIS 27950 and cert den (1996) 519 US
812, 136 L Ed 2d 20, 117 S Ct 58.
When school district does not perform exactly as called for by
individualized education program (IEP), district doesnot violate
Individuals with Disabilities in Education Act, 20 USCS 1400 et
seq., unless it is shown to havematerially failed to implement
child's IEP; material failure occurs when services provided to
disabled child fallsignificantly short of those required by IEP.
Van Duyn v Baker Sch. Dist. 5J (2007, CA9 Or) 481 F3d 770.
Parents were not entitled to reimbursement of costs they
incurred when they enrolled their child in private schoolbecause
child did not qualify for special education due to "specific
learning disability" because any existing severediscrepancy between
ability and achievement appeared correctable in regular classroom
as evidenced by child's nearlyuniformly average or above average
grades; any "other health impairment" that child did suffer from
did not adverselyaffect her performance to extent that she required
education outside of general classroom; furthermore, to attempt
toaccommodate child, in spite of her medical conditions, in general
classroom was consistent with concept ofmainstreaming, objective
that school district was legally bound to pursue. Hood v Encinitas
Union Sch. Dist. (2007,CA9 Cal) 486 F3d 1099.
Because school district's failure to provide free appropriate
public education violates Individuals with DisabilitiesEducation
Act, 20 USCS 1400 et seq., it could also violate 29 USCS 794 and/or
42 USCS 12132; therefore,district court erred by dismissing claim
by parents of cognitively disabled child that school district's
failure to providetheir child with free and appropriate education
concurrently violated two Acts. Chambers v Sch. Dist. of Phila. Bd.
ofEduc. (2009, CA3 Pa) 587 F3d 176.
Cognitively disabled adult child's equal protection rights under
Fourteenth Amendment were not violated as matterof law because she
failed her burden of showing that school district intentionally
discriminated against similarly situateddisabled students by
denying them free appropriate public education under Individuals
with Disabilities Education Act,20 USCS 1400 et seq. Chambers v
Sch. Dist. of Phila. Bd. of Educ. (2009, CA3 Pa) 587 F3d 176.
Mother's suit arising from school's use of safe room to
discipline her autistic son pursuant to individualizededucation
program developed under Individuals with Disabilities Education
Act, 20 USCS 1400(d)(1)(A) and1414(d), alleged injuries for which
20 USCS 1401(26) provided relief, and thus exhaustion requirement
applied;because she did not exhaust her claims by requesting due
process hearing under 20 USCS 1415(f), her suit wasproperly
dismissed. Payne v Peninsula Sch. Dist. (2010, CA9 Wash) 598 F3d
1123.
Where team determined that student with rare genetic disease did
not need special education, but administrative lawjudge (ALJ)
concluded that team had erred, remand was warranted because, inter
alia, (1) ALJ applied wrong legalstandard in determining whether
disease adversely affected student's educational performance, (2)
there was nosubstantial evidence to support ALJ's finding that it
had adverse affect, and (3) ALJ impermissibly discounted
adaptivegym teacher's testimony. Marshall Joint Sch. Dist. No. 2 v
C.D. (2010, CA7 Wis) 616 F3d 632.
State's imposition upon responsible relative of liability for
special education provided handicapped child and state'srefusal to
pay cost of treatment and education of child at residential
treatment center where he was placed by state
Page 2020 USCS 1400
-
Department of Mental Health and Developmental Disabilities,
violates Education For All Handicapped Children Act(20 USCS 1400 et
seq.), by denying eligible child "free appropriate public
education," for which state Board ofEducation, Department of Mental
Health and Developmental Disabilities, Govenor's Purchased Care
Review Board, andlocal Board of Education are all jointly liable,
with responsibility on State Board of Education to develop plan
forcoordinating compliance with Federal law. Parks v Pavkovic
(1983, ND Ill) 557 F Supp 1280, affd in part and revd inpart on
other grounds (1985, CA7 Ill) 753 F2d 1397, 1 FR Serv 3d 146, cert
den (1985) 473 US 906, 87 L Ed 2d 653,105 S Ct 3529 and cert den
(1985) 474 US 918, 88 L Ed 2d 255, 106 S Ct 246.
State education department violated Education of Handicapped Act
(20 USCS 1400 et seq.), where handicappedstudents found to be in
need of special education programs comparable to those enjoyed by
non-handicapped studentswere not provided with programs,
handicapped students whose needs could be met in regular schools
were segregatedfrom non-handicapped students, and enough classes to
meet needs of handicapped students were not opened. Hendricksv
Gilhool (1989, ED Pa) 709 F Supp 1362.
School district's decision that student did not qualify for
special education as "emotionally disturbed" will stand,even though
foster parent, 2 teachers, and clinical psychologist opine that he
is emotionally disturbed within meaning ofstate law, because
majority of student's teachers disagreed and their testimonies were
better informed and morepersuasive. Maricus W. v Lanett City Bd. of
Educ. (2001, MD Ala) 141 F Supp 2d 1064.
Disabled child was provided with access to specialized
instruction and related services which were designed toprovide
educational benefit, and parents insistence that non-public school
setting was more appropriate did not establishinappropriateness of
public school, even if child would have benefited more in private
setting. Hanson v Smith (2002,DC Md) 212 F Supp 2d 474.
Decision of ALJ which upheld school district's policy limiting
goals of Extended Service Year (ESY) program toretaining skills
already acquired in prior school year was affirmed because policy
did not violate Individuals withDisabilities in Education Act;
policies valid for establishing availability of ESY services
applied also to establishingcontent of ESY services, and ESY
programs could be limited to services needed to prevent regression.
McQueen vColo. Springs Sch. Dist. No. 11 (2006, DC Colo) 419 F Supp
2d 1303.
Where nothing in record indicated defendant school district's
counselors were unwilling to see plaintiff studentduring hours that
she was expected to attend school, and in fact, evidence showed
that student's all-day absences due tosleep disorder prevented her
attendance at counseling sessions regardless of time that they were
scheduled, and thus,there was no violation of 20 USCS
1400(d)(1)(A), 1414(d)(1)(A)(i) (IV). Ariel B. v Fort Bend Indep.
Sch. Dist. (2006,SD Tex) 428 F Supp 2d 640.
Student with Down Syndrome was granted relief in his Individuals
with Disabilities Education Act (IDEA), 20USCS 1400 et seq., suit
because administrative record showed clear violation of 20 USCS
1414(b)(2)(B), arisingfrom public high school's failure to
individually assess student's needs prior to assigning him to
self-contained specialeducation program: (1) student had
successfully progressed under prior, inclusion-based individualized
educationprogram (IEP); (2) record showed that high school offered,
to its disabled students, only unassisted classroomplacement or
placement in its separate, special needs program and that it placed
student in special needs program afterconcluding that his
disabilities precluded him from participating in regular classes on
his own; and (3) pursuant to 20USCS 1414(b)(2)(B), high school
could not use any single procedure as sole criteria for determining
appropriate IEPfor student, it was required to assess student's
individual needs in developing IEP for him, and pursuant to 20 USCS
1400(c)(5)(D) it was required to include him in general curriculum,
to maximum extent possible, by providing him aidsand other support
as necessary. John M. v Bd. of Educ. of Evanston Twp. High Sch.
Dist. 202 (2006, ND Ill) 450 F Supp2d 880.
Under Individuals with Disabilities Education Act (IDEA), 20
USCS 1400 et seq., parents were entitled totuition reimbursement
after unilaterally placing their autistic child in private school
for students with
Page 2120 USCS 1400
-
neurodevelopmental disorders because (1) department of education
did not dispute that it failed to offer child freeappropriate
public education in recommending that she be placed at public
school for children with disabilities; (2)private school was
appropriate placement for child because she was provided education
instruction specifically designedto meet her unique academic and
therapeutic needs, program paralleled state curriculum standards,
school providedextensive support services, and child was making
progress at school; and (3) equitable considerations supported
parents'claim, as parents cooperated with school district and
followed proper procedures before enrolling student at
privateschool; however, parents were not entitled to reimbursement
for tuition incurred in July and August because under N.Y.Educ. Law
2(15), school year was defined as 12-month period from July 1 and
to June 30 of following year, andparents failed to demonstrate that
they exhausted their statutory remedies as required by IDEA. A.D.
& M.D. v Bd. ofEduc. of City Sch. Dist. (2010, SD NY) 690 F
Supp 2d 193.
N.Y. Comp. Codes R. & Regs. tit. 8, 200.22 represent
permissible educational policy choice for variety ofreasons;
regulations' limitation and gradual phasing out of aversives is
consistent with focus in Individuals WithDisabilities Education
Act, 20 USCS 1400 et seq., on positive behavioral modification
methods. Alleyne v New YorkState Educ. Dep't (2010, ND NY) 691 F
Supp 2d 322.
Unpublished Opinions
Unpublished: Plaintiff parents' claims against defendant school
district for declaratory and injunctive relief underIndividuals
with Disabilities in Education Act, 20 USCS 1400 et seq., were not
rendered moot by child's graduationfrom high school. C.M. v Bd. of
Educ. (2005, CA3 NJ) 128 Fed Appx 876.
Unpublished: School district did not violate Individuals with
Disabilities Education Act (IDEA), 20 USCS 1400et seq., because
individualized educational plan (IEP) was directed to all areas of
child's educational development, notjust his reading and
comprehension and findings that educational and non-academic
benefits to be derived frommainstream program were minimal and
blended program would be better suited to meet child's unique
abilities andneeds were sufficient to overcome preference for
mainstreaming. B. S. v Placentia-Yorba Linda Unified Sch.
Dist.(2009, CA9 Cal) 2009 US App LEXIS 155.
8. Miscellaneous
Requirement of waiver under 20 USCS 1403 of Individuals with
Disabilities in Education Act (IDEA), 20 USCS 1400 et seq., clearly
promotes interests found in 20 USCS 1400(d)(1)(A), (B) in free
appropriate public educationfor all disabled children and
protection of rights of children and parents by ensuring full
accountability in federal courtfor statutory violations committed
by state educational authorities who receive federal financial
assistance under IDEA.A.W. v Jersey City Pub. Schs. (2003, CA3 NJ)
341 F3d 234 (criticized in Sacca v Buffalo State College (2004, WD
NY)2004 US Dist LEXIS 9134).
Where parents transferred student to private residential
treatment program without prior notice or objections and