3rd Circuit affirms equitable, non-monetary compensatory education award

FERREN C. v. School Dist. of Philadelphia, 612 F. 3d 712 (3rd Cir. 2010): The student is 24 years old. She had previously been awarded 3 years of compensatory education, the funding of which was to come from a trust that the District had set up. The District, however, disputed the obligation to provide IEPs and serve as the LEA. The private school at which the student was to receive her comp ed required a student's home school district to sign the IEP and serve as the student's LEA. The parent’s requested a hearing to compel the District to provide IEPs and serve as the LEA. The District prevailed at hearing and at the state review level. The District Court, however, ordered the School District for the duration of the student’s three years of compensatory education to annually reevaluate her, provide her with annual IEPs, and serve as her LEA. In affirming the District Court, the Circuit Court found that the Court’s power to award equitable relief is not limited to reimbursement. Rather, the Court has the power to award non-monetary equitable relief and that the non-monetary relief awarded by the Court here was appropriate.

Compensatory education claim

Petrina W. v. City of Chicago Public School Dist. 299, Slip Copy, 2009 WL 5066651, N.D.Ill.,2009: IHO held that comp ed claim was not ripe until the student turned 22. The district court held otherwise finding that “compensatory education can be appropriately sought and granted prospectively-that is, before the student has reached the age of 21.” The Court further held that the proper question in a comp ed case is “how much compensatory education-if any-is necessary to restore [the student] to the position she would have occupied, had the School District provided her with a FAPE during the periods in which she was deprived of one.“

Mootness, effect of subsequently issued IEP, pendency, comp ed, attorney fees

Student X, by his mother v. NYC Dept. of Educ., Slip Copy, 2008 WL 4890440(E.D.N.Y. Oct 30, 2008) (NO. 07-CV-2316(NGG)RER): The parent in this case lost on the FAPE claims but the case is extremely important for a variety of reasons. First, the Court dealt what hopefully is a knockout blow to SRO Paul Kelly’s overly restrictive view of the mootness doctrine. The Court found that an IEP issued subsequent to the challenged IEP did not moot the challenge to the first IEP. The Court recognized that the challenged action was capable of repitition while evading review. Next, the Court cited to the 2nd Circuit Schutz case observing that “a new IEP for the school year following the one at issue in the litigation was a “mere proposal” that did not change the student's pendency entitlement. To hold otherwise would “undermine entirely the pendency placement provisions of the IDEA, allowing a school district to avoid altogether § 1415(j)”. Again, this is a refutation of SRO Paul Kelly who has repeatedly excused district malfeasance by denying the parent the right to due process when a district issues a new IEP.

And there’s more. Citing to the recent 2nd Cir. case P. v. Newington, the Court refuted the notion that compensatory education is limited to over age 21. This should help to reinforce that the SRO’s silly distinction between “additional services” and compensatory education should be relegated to historical artifact. The Court then found that the refusal to implement pendency was a gross violation of the IDEA for which the Court granted an hour for hour award of compensatory services. Finally, the Court awarded attorney fees to the parent for prevailing on pendency.

Is the SRO additional services doctrine dead?

P. v. Newington, 2nd Cir., decided October 9, 2008.

For a number of years, the New York SRO has distinguished between compensatory education services and additional services. Hopefully, this 2nd circuit decision will put an end to this rather silly distinction.
The Court reasoned that

The IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. Mrs. C. v.Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). The remedy’s mandates in this case – that an inclusion consultant be retained for a year, requiring the school to keep Dr. Majure on for at least that long,and completion of an FBA – appropriately addressed the problems with the IEP, especially when considered in light of the fact that P. is now included in at least 80% of regular-classroom activities, in part due to Dr. Majure’s recommendations. See Parents of Student W. v. PuyallupSch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994) (“Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.”). We therefore see no infirmity in the hearing officer’s chosen remedy.

No statute of limitations for pre-2004 compensatory education claims

Tereance D. v. School Dist. of Philadelphia: In the 3rd Circuit, prior to the 2004 amendments of the IDEA, there was no statute of limitations on compensatory education claims. In this case, the Court did an extensive analysis of whether the new IDEA 2 year statute of limitations should be applied to a case in which the complained of conduct occurred prior to the 2004 amendments, but the hearing request was filed after. The Court held that the 2 year year statute of limitations would not be applied retroactively.