Equity in Education: Fixing Compensatory Education for Students with Disabilities

BYU Education & Law Journal BYU Education & Law Journal

Volume 2022 Issue 1 Article 3

2022

Equity in Education: Fixing Compensatory Education for Students Equity in Education: Fixing Compensatory Education for Students

with Disabilities with Disabilities

Melia Cerrato

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Equity in Education: Fixing Compensatory Education

for Students with Disabilities

Melia Cerrato

INTRODUCTION

In March 2020, the United States went into lockdown because

of the COVID-19 pandemic. As a result, school districts were given lit-

tle guidance on whether to cancel classes, provide distance learning,

or give a mix of both. There are over 7 million students with disabili-

ties, and while it is unknown how many of these were denied access

to their statutory right to a free appropriate public education (FAPE)

under the Individuals with Disabilities Education Act (IDEA), the mul-

titude of class action lawsuits that arose out of the shutdown demon-

strate how wide-spread the problem was for families.

However, the

denial of a FAPE is not unique to COVID-19 times and is the number

one claim against schools in the pre-pandemic era.

Students with dis-

abilities that are denied a FAPE are entitled to have schools provide

20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A).

U.S. Gov’t Accountability Office, GAO-21-43, Distance Learning: Challenges providing ser-

vices to K-12 English Learners and Students with Disabilities during COVID-19, at 1, 16 (Nov.

2020),

https://www.gao.gov/products/gao-21-43.

Education in a Pandemic: The Disparate Impacts of COVID-19 on America’s Students,

U.S. DEP’T OF EDUC., OFF. FOR CIV. RTS., https://www2.ed.gov/about/of-

fices/list/ocr/docs/20210608-

impacts-of-covid19.pdf (last visited Jan. 10, 2022).

Cerrato: Fixing Compensatory Education for Students with Disabilities

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1] Equity in Education

them the education they missed – also known as compensatory edu-

cation.

This Article presents the problematic nature of the current

compensatory education scheme that has been brought to fore be-

cause of the ongoing COVID-19 pandemic and proposes legislation

which would ensure that all children with disabilities have the same

opportunity to enjoy their rights under the IDEA, not just those from

affluent families.

Compensatory education has been problematic since its crea-

tion in Sch. Comm. of Town of Burlington, Mass. v. Dep't. of Educ. of

Mass.

and has been called the “poor man’s tuition reimbursement.”

Wealthy families who are dissatisfied with their local public school

and believe that their children are being denied a FAPE often resort to

a local private school

to remedy their situation.

After removing their

child, they can seek tuition reimbursement from the public school via

a due process hearing.

This system ensures that affluent children

with disabilities receive every educational opportunity. Meanwhile,

poorer families are often forced to keep their child within the public

school that is providing little to no appropriate education.

They

must seek remedy via due process only after multiple denials of the

school to provide adequate educational services and continue to wait

until a hearing officer decides the quantity and quality of services that

Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994)

“[C]ompensatory education is not a contractual remedy, but an equitable remedy, part of the

court's resources in crafting appropriate relief.” Id. (internal quotation marks omitted).

For a discussion the effects of poverty and the ability of families to access the IDEA’s

benefits, see, e.g. Eloise Pasachoff, Special Education, Poverty, and the Limits of Private Enforce-

ment, 86 NOTRE DAME L. REV. 1413 (2011); M. Hannah Koseki, Meeting the Needs of All Students:

Amending the Idea to Support Special Education Students from Low-income Households, 44

FORDHAM URB. L. J. 793, 814 (2017).

See Sch. Comm. of Town of Burlington, Mass. v. Dep't. of Educ., 471 U.S. 359 (1985).

Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for Idea Violations: The

Silly Putty of Remedies?, 45 URB. LAW. 281, 296 (2013).

Of course, students in certain communities might not have this private school option

regardless of their economic level.

Burlington, 471 U.S. at 370; Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 18 (1993);

Forest Grove v. T.A., 557 U.S. 230, 241–42 (2009).

Burlington, 471 U.S. at 370; Carter, 510 U.S. at 13; Forest Grove, 557 U.S. at 246–47.

Seligmann & Zirkel, supra note 7, at 301.

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should be provided for the past denial of FAPE.

Ultimately, poorer

children, who have higher rates of disabilities,

are left without an

appropriate education, often for months if not years.

The COVID-19 closures and distance learning models have only

exacerbated this issue between appropriate compensatory education

services for both wealthy and poor families of children with disabili-

ties. In light of COVID-19 and the different ways in which states han-

dled the shutdown of the spring 2020 semester, there is a potential

for families of special education students to file due process com-

plaints requesting compensatory education because of the denial of

FAPE.

Furthermore, while poor and working class families were at

the whim of the school district in terms of what services would be pro-

vided to their children with disabilities and how they would be pro-

vided, more affluent families were able to create “pandemic pods” and

hire trained educators and therapists to work directly with a small

group of students.

Thus, wealthy parents might seek cost reimburse-

ment for these “pandemic pods,” while the children of less affluent

families will again be forced to languish in uncertainty on whether

their student deserves compensatory education after being denied

the services and education outlined in their child’s Individual Educa-

tion Program (IEP).

Id.

Jiyeon Park, Ann P. Turbnall & H. Rutherford Turnbull III, Impacts of Poverty on Quality

of Life in Families with Children with Disabilities, 68 COUNCIL FOR EXCEPTIONAL CHILDREN 152

(2002) (“Among children with disabilities aged 3 to 21 in the United States, 28% are living in

poor families by contrast, among children with disabilities in the same age range, only 16% are

eliding in poverty.”) (citation omitted).

See, e.g., Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008); M.C.

v. Central Reg’l Sch. Dist., 81 F.3d 389, 395 (3d. Cir. 1996).

Notably, pandemics and other devastating disease emergencies are likely to increase

in frequency. David M. Morens & Anthony S. Fauci, Emerging Pandemic Diseases: How We Got to

Covid-19, CELL, v. 182(5), 1089 (Sept. 3, 2020), https://www.cell.com/ac-

tion/showPdf?pii=S0092-8674%2820%2931012-6.

Bryan C. Hassel & Sharon Kebschull Barrett, Will Learning Pods Be Only for the Rich?,

EDUC. WEEK (Aug. 25, 2020), https://www.edweek.org/leadership/opinion-will-learning-pods-

be-only-for-the-rich/2020/08; https://www.nytimes.com/2020/08/14/us/covid-schools-

learning-pods.html; Hannah Seligson, Posh Pod or Resort Academy? The Rich Head Back to School

in a Pandemic, TOWN & COUNTRY (Sept. 18, 2020), https://www.townandcountrymag.com/soci-

ety/money-and-power/a33912536/coronavirus-learning-pod-rich-parents/.

Cerrato: Fixing Compensatory Education for Students with Disabilities

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1] Equity in Education

While Congress created statutory guidelines for tuition reim-

bursements for a FAPE denial in 2004, they neglected to create guide-

lines for compensatory education.

Congress failed to provide clarifi-

cation on how compensatory educational services should be

calculated, resulting in a judicially created remedy that varies by cir-

cuit.

During the COVID-19 closures, the U.S. Department of Educa-

tion did nothing to clarify these issues during the pandemic. In fact,

the only guidance provided was that if a Local Education Agency

(LEA) continued educational services to the general student popula-

tion, the LEA must also provide services for students with Individual

Education Programs (IEPs).

Consequently, if the LEA failed to pro-

vide FAPE to their special education students, then the LEA would be

required to provide compensatory services. Thus, as an equitable

remedy, there is currently no set standard for how compensatory ed-

ucation services are crafted.

Poverty already negatively affects child development, and stud-

ies demonstrate that children living in poverty often begin school be-

hind more affluent children both academically and cognitively.

This

trend continues through high school and is exacerbated by the fact

that children with disabilities are two to five times more likely to drop

out of school than their non-disabled peers.

Poverty often leads to a

20 U.S.C. § 1412(a)(10)(C)(ii) (“If the parents of a child with a disability, who previously

received special education and related services under the authority of a public agency, enroll the

child in a private elementary school or secondary school without the consent of or referral by

the public agency, a court or a hearing officer may require the agency to reimburse the parents

for the cost of that enrollment if the court or hearing officer finds that the agency had not made

a free appropriate public education available to the child in a timely manner prior to that enroll-

ment.”).

T. Daris Isbell, Distinguishing Between Compensatory Education and Additional Services

as Remedies Under the IDEA, 76 BROOK. L. REV. 1717, 1717 (2011).

Depending on the State, the Local Education Agency is most often the school district.

For the purposes of this article, these terms will be used interchangeably.

OSERS, Questions and Answers on Providing Services to Children with Disabilities During

the Coronavirus Disease 2019 Outbreak, p. 2 (March 12, 2020),

https://sites.ed.gov/idea/files/qa-covid-19-03-12-2020.pdf.

H.B. Ferguson, S. Bovaird, & M.P. Mueller, The Impact of Poverty on Educational Out-

comes for Children, 12 PEDIATRIC CHILD HEALTH, 701, 701 (2007).

Jennifer Rosen Valverde, A Poor Idea: Statute of Limitations Decisions Cement Second-

Class Remedial Scheme for Low-Income Children with Disabilities in the Third Circuit, 41 FORDHAM

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power imbalance between the school and the parents of the child with

disabilities because these parents often lack basic knowledge about

special education and the access to legal support or expert advocacy

in order to better understand their child’s rights under the IDEA.

Furthermore, the lack of codification for compensatory education cre-

ates an invisible barrier to these already disadvantaged families be-

cause it is not found within the IDEA.

This Article argues that a legislative remedy of compensatory

education awards should be crafted using a mix of qualitative and

quantitative data to place the child in the same place they would have

been but for the FAPE denial. Part II will address when the court

awards education services and how the circuit courts are split on

quantifying the total amount awarded. Part III examines potential al-

ternatives and proposes a clearer standard for what compensatory

education should look like for historically underserved vulnerable

populations.

I. THE WHY AND HOW BEHIND COMPENSATORY

EDUCATION

The initial issue in deciding whether compensatory education

is an appropriate remedy is a judicial finding of liability which occurs

after a denial of FAPE.

Section A will define key terms found in IDEA

that create the liability for the compensatory education award. Next,

Section B will provide context on how this judicially created remedy

further deprives low-income families of a FAPE.

A. Liability for not Providing a FAPE

Under IDEA, school districts that receive federal funds for edu-

cation must provide students with disabilities a FAPE.

A FAPE is pro-

vided to students through “special education and related services that

URB. L.J. 599, 616 (2013) (citing Suzanne E. Kemp, Dropout Policies and Trends for Students with

and Without Disabilities, 41 ADOLESCENCE 235, 236 (2006)).

Id.

Id. at 663.

Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017).

20 U.S.C. § 1412(a)(1)(A).

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1] Equity in Education

have been provided at public expense… [and] are provided in con-

formity with the individualized education program [IEP].”

There-

fore, a school district must develop and review an IEP that complies

with both the procedural requirements of IDEA

and provides an

“educational program reasonably calculated to enable a child to make

progress appropriate in light of the child's circumstances.”

The word

“appropriate” in FAPE is not defined because IDEA requires that each

IEP be “specially designed to meet a child’s unique needs through an

individualized education program.”

The definition of FAPE is im-

portant because parents of children with disabilities must first prove

that the school violated FAPE in order to receive compensatory edu-

cation services as a remedy.

Once a child is provided with an IEP, the school district must

follow it by providing the designated amount of special education

minutes and other related services.

While minor discrepancies be-

tween the services provided and the services called for by the IEP do

not give rise to a FAPE violation,

a failure to provide a material im-

plementation will,

because IDEA requires services be delivered “in

conformity” to the IEP.

Courts look to whether the provision of the

student’s IEP that was not implemented was essential, significant, or

material in determining whether there was a denial of FAPE.

Other

Id. § 1401(9).

Id. § 1414(d)(1)(A). An IEP is “developed, reviewed and revised” and contains the fol-

lowing: “the child’s present levels of academic achievement and functional performance… meas-

urable annual goals, including academic and functional goals… a statement of the special educa-

tion and related services…[and] the program modifications or supports for school personnel

that will be provided for the child.” Id.

Endrew F., 137 S. Ct. at 1001.

Id. at 999 (quoting 20 U.S. C. §§ 1401(29), (14)) (internal quotation marks omitted).

See, e.g., Somberg on behalf of Somberg v. Utica Cmty. Sch., 908 F.3d 162, 171 (6th Cir.

2018).

20 U.S.C.A. § 1414.

Van Duyn ex. rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F. 3d 811, 821 (9th Cir. 2007).

Neosho R-V Sch, Dist. v. Clark, 315 F.3d 1022, 1028 (8th Cir. 2003).

20 U.S.C.A. § 1401(9).

See, e.g., Van Duyn, 502 F.3d at 822 (concluding, consistent with "sister circuits, . . .

that a material failure to implement an IEP violates the IDEA"); Neosho R-V Sch. Dist., 315 F.3d

at 1027 (holding that failure to implement an "essential element of the IEP" denies a FAPE);

Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) (ruling that failure to

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factors that courts can weigh in determining whether there has been

a material failure are the child’s circumstances and education achieve-

ment, the proportion of services provided, and the educational con-

text.

This materiality standard “does not require that the child suffer

demonstrable educational harm in order to prevail."

However, a

child's lack of educational progress towards their goals, can be evi-

dence that they have been denied a FAPE.

Importantly, a violation of

FAPE does not require the school to be acting in bad faith.

This is

relevant for the context of school shutdowns due to the COVID-19

pandemic in Spring 2020.

It is well established that when a school district fails to provide

the type of instruction or the majority of necessary minutes mandated

in the IEP, that school district has denied students a FAPE.

A failure

to implement the IEP could occur because of staffing issues, teacher

error, district-wide issues, or other causes.

For example, the school

in Stanton ex rel. K.T. v. District of Columbia denied a child a FAPE after

it failed to follow the IEP for nearly two years because the teachers

were unaware of its existence.

In contrast, in Sumter Cty. Sch. Dist.

17 v. Heffernan ex rel. TH, the IEP required 15 hours per week of ap-

plied behavioral analysis (ABA) therapy, but the school was only

providing 7.5–10 hours of these services.

In the second semester,

the school hired a certified ABA technician and the child greatly im-

proved with the 15 hours a week services provided.

However, the

implement the "significant provisions of the IEP" denies a FAPE).

L.J. by N.N.J. v. Sch. Bd. of Broward Cnty., 927 F.3d 1203, 1216 (11th Cir. 2019)

Van Duyn, 502 F.3d at 822; see also Sch. Bd. of Broward Cnty., 927 F.3d at 1214.

Van Duyn, 502 F.3d at 822.

M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996).

For the purposes of this Article, other FAPE procedural violations will not be ad-

dressed in regard to liability for schools.

See, e.g., N.D. et al. v. Hawaii Dept. of Educ., 600 F.3d 1104 (9th Cir. 2010).

See, e.g., Sumter Cty. Sch. Dist. 17 v. Heffernan ex rel. TH, 642 F.3d 478, 481 (4th Cir.

2011); Stanton ex rel. K.T. v. D.C., 680 F. Supp. 2d 201 (D.D.C. 2010).

Stanton, 680 F. Supp. 2d at 203.

Sumter Cty. Sch. Dist. 17, 642 F.3d at 481.

Id.

Cerrato: Fixing Compensatory Education for Students with Disabilities

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1] Equity in Education

following year, the ABA technician left and the IEP was again not im-

plemented.

The court reasoned that this was a material violation be-

cause the school failed to provide both the total hours required and a

properly trained ABA technician, which adversely effected the child.

Alternatively, in N.D. v. Hawaii Dep’t of Educ., a fiscal crisis led the pub-

lic schools to move to a four-day week.

The court noted that this

could be cause for a FAPE claim, as it would likely result in a material

failure to implement students’ IEPs.

Therefore, a denial of FAPE can

be the result of bad faith on the part of the school or of circumstances

beyond the control of school personnel.

If there was a material failure to implement the IEP, the school

has recourse to some minor defenses. For example, a district can es-

tablish substantial compliance by showing students made progress

toward their goals, improved their grades, and passed state assess-

ments.

Alternatively, if the school acted in good faith in an attempt

to provide a FAPE, but the parents or guardians hindered the appro-

priate implementation of the IEP, then the child may not receive an

award of compensatory education.

In C.G. ex rel. A.S. v. Five Town

Cmty. Sch. Dist., the parents were seeking a residential placement for

their child at the cost of the school.

However, after the evaluation

process a public school non-residential placement was determined to

be most appropriate to provide a FAPE, at which point the parents

disrupted the IEP process and stalled its creation and implementation

by unilaterally removing the child to the residential placement.

Therefore, the court found that the IDEA

explicitly barred reim-

bursement for parental conduct that was unreasonable.

This case

demonstrates that courts give great deference to the schools in the

Id. at 482

Id. at 486.

Hawaii Dept. of Education, 600 F.3d at 1117.

Id.

Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 350 (5th Cir. 2000).

C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 288 (1st

Cir. 2008).

Id. at 287.

Id. at 288.

20 U.S.C. § 1412(a)(10)(C)(iii)(III)

Id.

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decision-making process, and that parents must attempt to work

through any issues prior to making any unilateral choices for their

child that might hinder the implementation of the IEP and the school’s

ability to provide a FAPE.

B. A Denial of FAPE Results in Compensatory Education

When there is a violation of a child’s right to FAPE, a hearing

officer

or court can award appropriate compensatory education ser-

vices.

All remedies under the IDEA are equitable and as such com-

pensatory education is the most common. Compensatory education,

like FAPE, is not defined in IDEA and is actually a judicially created

equitable remedy, designed to place children with disabilities in the

same position they would have occupied but for the school district’s

violation of IDEA.

The purpose of compensatory education services

is to “give the child back the years lost languishing in an inappropriate

placement.”

Therefore, compensatory education for the FAPE viola-

tion should seek to “provide services prospectively to compensate for

a past deficient program.”

Every federal Circuit Court of Appeals rec-

ognizes this as an appropriate remedy; however, the circuits are split

on whether to use a qualitative or quantitative approach in crafting

the remedy.

Depending on the State, parents will first attend a due process hearing that is overseen

by an administrative law judge (ALJ) or a hearing officer. This Article will use these words inter-

changeably.

Letter to Kohn, 17 ELHR 522 (OSEP 1991); 20 U.S.C.A. § 1415(i)(2)(C)(iii).

Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712, 717–18 (3d Cir. 2010);

Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008); Som-

berg on behalf of Somberg v. Utica Cmty. Sch., 908 F.3d 162, 171 (6th Cir.

2018); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C.Cir.

2005); Westendorp v. Indep. Sch. Dist. No. 273, 35 F. Supp. 2d 1134, 1137 (D.

Minn. 1998); see, also 20 U.S.C.A. § 1415(i)(2)(C)(iii).

Brown v. Wilson Cnty. Sch. Bd., 747 F. Supp. 436 (M.D. Tenn. 1990); see also Reid, 401

F.3d at 522.

Draper, 518 F.3d at 1280.

Pihl v. Mass. Dept. of Educ., 9 F.3d 184, 188 (1st Cir. 1993); Burr v.

Ambach, 863 F.2d 1071 (2d Cir. 1988), vacated & remanded sub nom Sobol v.

Burr, 492 U.S. 902 (1989), re aff'd on reconsideration, Burr v. Sobol, 888 F.2d

258 (1989); Lester H. v. Gilhool, 916 F.2d 865, 868–69 (3rd Cir. 1990); G. v. Fort

Cerrato: Fixing Compensatory Education for Students with Disabilities

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1] Equity in Education

At issue is the ambiguity around how hearing officers and

courts craft the total amount of compensatory education services that

are given to the child. Whereas Congress codified

the Supreme Court

ruling in Sch. Comm. of Town of Burlington, Mass. v. Dep't. of Educ. of

Mass.,

which provides for tuition reimbursement when students

with disabilities are placed at private schools, neither the Supreme

Court

nor Congress have addressed the issue of compensatory edu-

cation awards.

Thus, when an upper income child is denied a FAPE

the parents can unilaterally choose to place their child in a private

school, and subsequently seek full reimbursement if they are the pre-

vailing party in a due process hearing. Again, this FAPE denial could

be due to an inappropriate IEP or a failure to provide the services con-

tained therein. In contrast, economically disadvantaged families are

more likely to have to forego this option and wait until the hearing

officer first finds that the district denied the child a FAPE. They then

are at the will of the hearing officer to determine the total amount of

compensatory education services. This can be even more problematic,

as the Supreme Court has found that IDEA requires deference to the

Bragg Dependent Schools, 343 F.3d 295, 309 (4th Cir. 2003); Spring Branch In-

dependent School Dist. v. O.W., 938 F.3d 695, 712 (5th Cir. 2019); Hall v. Knott

County Board of Education, 941 F.2d 402, 406 (6th Cir. 1991); Bd. of Educ. of

Oak Park & River Forest High Sch. Dist. 200 v. Ill. State Bd. of Educ., 79 F.3d

654, 656 (7th Cir. 1996); Meiner v. Missouri, 800 F.2d 749, 753-54 (8th Cir.

1986); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1496

(9th Cir. 1994); Erickson v. Albuquerque Public Schools, 199 F.3d 1116, 1123

(10th Cir. 1999); Jefferson Cnty. Bd. of Educ. v. Breen, 853 F.2d 853, 857–58

(11th Cir. 1988); Reid, 401 F.3d at 518m; Infra § III

20 U.S.C. §1412(a)(10)(C).

See generally Sch. Comm. of Town of Burlington, Mass. v. Dep't. of Educ., 471 U.S. 359

(1985).

Since Burlington, the Supreme Court has addressed the limits of tuition reimbursement

in the subsequent cases including Florence County School District Four v. Carter and Forest Grove

School District v. T.A.. However, it has yet to address compensatory education awards and has

denied cert. on a variety of compensatory education cases such as; Lester H. v. Gilhool, 916 F.2d

865 (3d Cir.1990), cert. denied, 499 U.S. 923 (1991); Miener v. Missouri, 800 F.2d 749, 754 (8th

Cir. 1986), cert. denied, 459 U.S. 909 (1982).

Perry A. Zirkel, Compensatory Education Under the Individuals with Disabilities Educa-

tion act: The Third Circuit’s Partially Mis-Leading Position, 110 PENN ST. L. REV. 879, 901 (2006).

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schools’ opinions as experts.

Therefore, parents with the monetary

means are able to get a more robust equitable remedy in which their

child never has to sit in a sort of “purgatory,” awaiting FAPE because

the services were not appropriate, and the child could not access the

education provided.

Moreover, the fact that tuition reimbursement is codified, while

compensatory education is not, makes it difficult for parents to even

know that it exists as a potential remedy.

The remedy of compensa-

tory education is not found in the IDEA.

Instead it is briefly men-

tioned as a recourse in a state complaint process.

Importantly, attor-

neys are not required to file due process complaints, leaving many

parents on their own against represented school districts. In sum, this

ambiguity does a grave injustice to children with disabilities who

come from lower economic classes.

Courts have found that compensatory education is a remedy

presupposed by Congress even though it is missing from the IDEA, be-

cause otherwise low-income families would essentially be barred

from any viable remedy to FAPE violations.

Therefore, the remedy

is often prospective in nature, looking to provide services that will

help the child regain the lost progress.

In some cases a paraprofes-

sional is provided so the student with disabilities can make progress

towards his/her goals.

Compensatory education can also provide for

services during the school year as well as access to extended school

year (ESY).

At times, the use of a one-on-one tutor that works with

Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017).

Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the IDEA:

An Update, 31 J. NAT’L ASS’N OF ADMIN. L. JUDICIARY 1, 22 (2011) [hereinafter Remedial Authority of

Hearing Officers]

See id.

34 C.F.R. § 300.151(b)(1).

Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522 (D.C.Cir. 2005)

Spring Branch Indep. Sch. Dist. v. O.W., 938 F.3d 695, 712 (5th Cir. 2019

Westendorp v. Indep. Sch. Dist. No. 273, 35 F. Supp. 2d 1134, 1138 (D. Minn. 1998).

Johnson v. Bismarck Pub. Sch. Dist., 949 F.2d 1000, 1002 (8th Cir. 1991).

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1] Equity in Education

the student after school or on the weekends is an appropriate rem-

edy.

Even assistive technology

and more appropriate accommoda-

tions can be appropriate awards that fall under compensatory educa-

tion.

Finally, in the most extreme cases a private placement paid for

by the school district can be necessary for an equitable remedy of the

FAPE violation.

Hearing officers are given wide latitude to create appropriate

remedies for FAPE denials, and may award compensatory education

to whatever extent necessary to make up for the child's lost pro-

gress.

Importantly, the courts have agreed that in certain circum-

stances an award of compensatory education that extends beyond the

age of twenty-one is appropriate to remedy a FAPE violation.

One

statutory requirement that courts agree to impose from the tuition re-

imbursement codification onto the compensatory education awards

is a two year statute of limitations on these claims.

Also, the IDEA

does not allow hearing officers to delegate their authority by allowing

Pihl v. Mass. Dept. of Educ., 9 F.3d 184, 188 (1st Cir. 1993); Somberg on behalf of Som-

berg v. Utica Cmty. Sch., 908 F.3d 162, 177 (6th Cir. 2018) (school district paid for 1,200 hours

of tutoring and transition services).

Doe v. East Lyme Bd. of Educ., No. 3:11CV291, 2020 WL 7078727, at *20 (D. Conn. Dec.

3, 2020).

Reg'l Sch. Unit 51 v. Doe, 920 F. Supp. 2d 168, 216 (D. Me. 2013).

Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1283–85 (11th Cir. 2008); (providing

a private school placement until the student received a high school diploma or until a specific

date); Sch. Comm. of Town of Burlington, Mass. v. Dep't. of Educ. of Mass., 471 U.S. 359, 369

(1985) (“but the Act also provides for placement in private schools at public expense where this

is not possible.”) Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 (11th

Cir.2003).

G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 625 (3d Cir. 2015).

Pihl, 9 F.3d at 190; Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 249 (3d Cir.1999); G.

v. Fort Bragg Dependent Schools, 343 F.3d 295, 309 (4th Cir. 2003); Hall v. Knott County Bd. of

Ed., 941 F.2d 402, 407 (6th Cir. 1991); Bd. of Educ. of Oak Park & River Forest High Sch. Dist.

200 v. Ill. State Bd. of Educ., 79 F.3d 654, 656 (7th Cir. 1996); Miener v. Missouri, 800 F.2d 749,

753 (8th Cir. 1986); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1496 (9th

Cir. 1994); Jefferson Cnty. Bd. of Educ. v. Breen, 853 F.2d 853, 857–58 (11th Cir. 1988).

20 U.S.C. § 1415(f)(3)(C).

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the IEP team to reduce or discontinue the award of compensatory ed-

ucation.

In order to award compensatory education, the hearing of-

ficer must employ a fact-specific inquiry explaining why the relief

would compensate the student.

However, circuit courts have di-

verged when crafting awards of compensatory education on whether

a qualitative or quantitative approach is necessary.

C. Compensatory Education and COVID-19

In March 2020, many States chose to shut down all non-essen-

tial businesses and services, which included schools for many dis-

tricts. Importantly, IDEA does not address the possibility of school clo-

sures due to exceptional circumstances, such as a pandemic.

Limited

guidance from the U.S. Department of Education provided that school

districts would not be in violation of IDEA in denying FAPE for stu-

dents with disabilities, as long as classes for general education stu-

dents were also not provided.

In essence, school districts that can-

celed school for all students would not be liable to students with

disabilities because they would not be providing an education to any

students. However, if a school district did provide a free and appro-

priate public education to the general education students while the

school was physically shut down, it would need to make appropriate

plans to ensure the IEP of a student with disabilities would be imple-

mented.

Even if the school districts made every effort to provide

special education and related services to students with IEPs, they

could still be failing to provide a FAPE under IDEA if the IEP was not

materially implemented.

For example, in Brennan and James v. Wolf,

the teachers provided remote learning to students but their IEPs re-

quired the teachers to provide physical prompts such as “hand over

Id. § 1415(f)(3)(E)(i).

Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005)

The First Circuit Court of Appeals is the only court that has not issued strict guidance

on what approach to utilize in crafting this remedy. Arroyo-Delgado v. Dep’t of Educ. of P.R., 199

F. Supp. 3d 548 (D.P.R. 2018)

OSERS, supra note 4, at 2.

Id.

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1] Equity in Education

hand” instruction to assist with task completion.

Also, many IEPs call

for a paraprofessional to assist the child, but that became impossible

during the pandemic. The U.S. Department of Education did not grant

a waiver or relaxation of pre-COVID-19 IDEA requirements.

For these reasons, the U.S. Department of Education Office of

Special Education and Rehabilitative Services (OSERS) instead ad-

vised school districts that compensatory education might be appro-

priate for those students whose COVID-19-developed educational

programs denied them a FAPE.

Further guidance stated that

"[w]here, due to the global pandemic and resulting closures of

schools, there has been an inevitable delay in providing services . . .

IEP teams . . . must make an individualized determination whether and

to what extent compensatory services may be needed when schools

resume normal operations.”

Many schools did not resume normal

operations during the entirety of the 2020–21and 2021–22 school

years and instead offered fully remote learning or a mix of in-person

and on-line learning that could be grossly deficient for students with

disabilities. Furthermore, the pandemic caused major disruptions to

the educational system over the past two years, making it less likely

that IEP teams will be able to provide individually tailored compensa-

tory education for each student with an IEP, possibly leading to an in-

crease in due process complaints being brought by the parents of stu-

dents with disabilities.

In September 2020, the Office of Special Education Programs

(OSEP) provided guidance on implementing services during the

COVID-19 pandemic.

Again, these recommendations reiterated that

Brennan and James v. Wolf, 2: 20-cv-02320-CFK (3rd Cir. 2020).

OSERS, supra note 4, at 2.

Id.

OSERS, Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elemen-

tary and Secondary Schools While Serving Children with Disabilities, p. 2 (March 21, 2020),

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Sup-

ple%20Fact%20Sheet%203.21.20%20FINAL.pdf.

Anya Kamenetz, Families of Students with Special Needs are Suing in Several States.

Here’s Why, NPR (July 23, 2020, 7:06 AM),

https://www.npr.org/2020/07/23/893450709/families-of-children-with-special-needs-are-

suing-in-several-states-heres-why.

OSEP, IDEA PART B SERVICE PROVISION, p. 2 (Sept. 28, 2020),

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-provision-of-services-idea-

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if schools did not offer in-person learning that they would not be re-

lieved of their obligations to provide a FAPE.

Notably, when a child

received ESY services in their IEP that were not provided due to

COVID-19, the school still needed to find a method of implementing

those lost services.

OSEP recommended that the ESY services could

be made up during “the normal school year, during school breaks or

vacations where appropriate to the child’s needs and consistent with

applicable standards.”

These recommendations are important in

creating an equitable remedy of compensatory education because

they exemplify the necessity to place the child in the same position

they would have been but for the denial of FAPE created by the pan-

demic. Recent due process complaints and decisions provide an in-

sight into how different regions of the country are awarding compen-

satory education in the times of COVID, and how they struggled to

provide compensatory education adequately because of the uncer-

tainty surrounding the requirements.

II. THE CIRCUIT COURT SPLIT AND DECODING

APPROPRIATE COMPENSATORY EDUCATION

The circuit split created even more issues for families seeking

compensatory education services for their children. Not only is com-

pensatory education missing from the statute, but now parents, in

their request for relief, must articulate how much compensatory edu-

cation services should be provided by the school. Part A of this article

will explain the quantitative approach and Part B the new qualitative

approach, both noting the benefits and drawbacks that parents have

or will face with this type of computation. Section C will look to how

some hearing officers and circuit courts have actually created a hybrid

approach that uses both of these methods.

Consider the following case example. Jack is a third grader with

autism who was identified with his exceptionality at four years old

part-b-09-28-2020.pdf.

Id.

Id. at 5

Id.

Infra Section III.C.

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and an IEP was provided since attending school. He spends the major-

ity of his day in a self-contained classroom with four other peers with

autism, one special education teacher, and a paraprofessional. He re-

ceives the following related services: occupational therapy, counsel-

ing with a social worker, speech therapy, and adapted physical educa-

tion. At the end of second grade, the school conducted a tri-annual

review to write a new IEP and Jack’s mother noticed that he had made

limited progress both academically and socially. Socially, the evalua-

tion showed that Jack was largely non-verbal and only able to speak

one- to two-word phrases. Academically, his math and reading skills

were still at pre-K levels. Finally, Jack was still struggling with self-

help goals such as fastening his clothes, handwriting, and proper bath-

room behavior. After the evaluation, none of his goals or objectives

were changed and although Jack’s mother requested an increase in

speech therapy minutes, the district found that it was not necessary.

In March 2020, Jack’s school went completely virtual due to

COVID-19. During reading and math, Jack struggled to pay attention

to the computer and often wandered away or shut the screen. The

physical education therapist sent Jack’s mother some videos so that

Jack could dance with them and follow directions; the speech

pathologist never met with Jack; the occupational therapist emailed

some activities to complete; and Jack’s mother never heard from the

social worker. Jack’s mother kept track of the missed services and

minutes, finding that Jack was owed forty-five hours of academic in-

struction in math and reading, six hours of speech therapy, three

hours of occupational therapy, nine hours of adapted physical educa-

tion, and two hours of social work services. As of March 2021, Jack’s

mother remained frustrated that Jack was still not making progress

towards his IEP goals. The district had not offered any compensatory

education services for the distance learning during the last ten weeks

of school during the shutdown.

In this case an adjudicator is likely to find that the district de-

nied Jack a FAPE in both of the above scenarios. First, by providing an

inappropriate IEP that they should have known about after the new

evaluation in the Spring of 2020; but also by failing to provide the total

minutes and services required by the IEP due to the COVID-19 shut-

down. Now it will be up to Jack’s mother to request compensatory ed-

ucation services to make up for these deprivations. These services

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could look like tutoring services

that are given after school to make

up for the lack of math and reading progress or to make up for the lost

minutes for the related services. Jack’s mother could also request

summer school or ESY services.

100

Finally, in addition to direct ser-

vices provided to Jack, his mother could request training for Jack’s

teachers and service providers to address the implementation of his

self-help goals and how best to work with children with autism.

101

The

circuit court’s issue is how to calculate the duration for these types of

compensatory education awards.

A. The Quantitative Method of Calculating Compensatory

Education

One approach to calculating compensatory education awards is

to compensate the child on a quantitative one-to-one ratio, where for

every hour, day, or year the child was denied FAPE the school must

provide the equal amount of lost time.

102

The Third and Eighth Circuit

Courts use the calculation of minutes lost as the starting point for

crafting the remedy and in this way maintains the individual tailoring

requirement of the IDEA.

103

The adjudicator then looks at the period

of denial of FAPE and subsequently reduces the award based on the

following factors: “the time reasonably required for the school district

to rectify the problem,”

104

absences of the student,

105

and parental in-

terference.

106

Alternatively, the adjudicator can also increase the

award if the evidence shows that more education is required to place

the child in the same position but for the FAPE denial, often applied

when a child regressed.

107

The Third Circuit repeatedly states that a

Pihl v. Mass. Dept. of Educ., 9 F.3d 184, 188 n.8 (1st Cir. 1993);

100

Johnson v. Bismark Pub. Sch. Dist., 949 F.2d 1000, 1002 (8th Cir. 1991).

101

Park, ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1034 (9th Cir. 2006)

102

M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996).

103

Jana K. ex rel. Tim K. v. Annville-Cleona Sch. Dist., 39 F. Supp. 3d 584, 608 (M.D. Pa.

2014); see generally Moubry v. Indep. Sch. Dist. 696, Ely, Minn., 9 F. Supp. 2d 1086, 1103 (D.

Minn. 1998).

104

M.C., 81 F.3d at 397.

105

Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1130 (10th Cir. 2008).

106

Moubry, 9 F. Supp. 2d at 1103.

107

Annville-Cleona Sch. Dist., 39 F. Supp. 3d at 608.

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FAPE denial does not require bad faith on the part of the school.

108

This is important in terms of COVID-19 and distance learning, but also

because sometimes a FAPE violation is beyond the school’s control,

such as in the case of hiring practices or difficulties in finding qualified

personnel.

109

A seminal case in the one-to-one approach is M.C. v. Central Reg’l

Sch. Dist., where the school had provided an inappropriate IEP such

that the parents sough to relocate the child to a residential place-

ment.

110

The child had made little improvement towards his self-help

goals in his IEP.

111

In fact, there was evidence that he regressed during

the five year period at issue.

112

His lack of progression towards his IEP

goals was compounded by the fact that the IEP itself lacked important

objectives and parental training, the latter of which could be a related

service.

113

Ultimately the denial of FAPE was the result of an inappro-

priate placement and an inappropriate IEP.

114

The lower court had

awarded a residential placement but denied compensatory education

for the five years that J.C. spent learning under an inappropriate IEP

because the court found the school to be in good faith and that it had

attempted to provide some educational benefit.

115

The Third Circuit

disagreed and reasoned that a failure of an IEP to provide educational

benefit places the school district on notice and that compensatory ed-

ucation accrues from that point onward.

116

The court found that when

a child is denied a FAPE that “a disabled child is entitled to compensa-

tory education for a period equal to the period of deprivation, but ex-

cluding the time reasonably required for the school district to rectify

the problem.”

117

The court reversed the denial of the compensatory

education award with the guidance that this child’s deprivation had

lasted a long time; therefore, the lower court should determine the

108

M.C., 81 F.3d at 397.

109

See supra I. Part A.

110

M.C., 81 F.3d at 391.

111

Id. at 392.

112

Id.

113

Id.

114

Id.

115

Id. at 393.

116

Id. at 396.

117

Id. at 397.

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reasonable time to rectify any issues with the IEP and exclude that

amount from the time where the district was placed on notice that the

IEP was inappropriate.

118

Overall, the quantitative approach appears to match the tuition

reimbursement scheme because families are awarded the total of

what they were deprived, just as families who choose tuition reim-

bursement are awarded the total tuition paid. In Jana K., the court

found that full days of compensatory education was warranted when

the FAPE denial resulted in a “pervasive loss of educational benefit to

the student.”

119

Furthermore, the court noted that it is beneficial to err

by awarding too much compensatory education than too little.

120

In certain circuits, when the school denied the child a FAPE for

multiple academic weeks or years, courts found that compensatory

education should be awarded for the full time period that the child

was denied a FAPE in order to provide equity.

121

For example, in the

past courts awarded students compensatory education awards in the

amount of six years after being denied a FAPE for the same time pe-

riod.

122

There were opponents of these lengthy awards, and, in 2004,

IDEA was amended to include a statute of limitations of two years.

123

This helped to alleviate the issue of scheduling compensatory educa-

tion for students over multiple academic years.

Recently, in Colorado,

124

when the state closed schools due to

the pandemic, certain LEAs created Interim Student Plans (ISP) to

supplement students’ IEP’s during distance learning.

125

The ISP pro-

118

M.C., 81 F.3d at 397.

119

Id. at 610 (finding that when student makes little to no academic progress, it indicates

that the district's failure to address his needs pervaded his entire school day and warrants the

award of full days compensatory education).

120

Id.

121

Westendorp v. Indep. Sch. Dist. No. 273, 35 F. Supp. 2d 1134, 1137 (D. Minn. 1998).;

Linda E. v. Bristol Warren Reg'l Sch. Dist., 758 F. Supp. 2d 75, 93 (D.R.I. 2010).

122

Westendorp, 35 F. Supp. 2d at 1138; Lester H. v. Gilhool, 916 F.2d 873 (3d Cir. 1990).

Although, since the two-year statute of limitations is now applicable to compensatory education

awards, it is likely that multiple year awards will be limited to two years.

123

20 U.S.C.A. § 1415(f)(3)(c)

124

Colorado is also located within the Eighth Circuit.

125

El Paso Cty. Sch. Dist., 77 IDELR 236, at 9 (CO SEA, Sept. 18, 2020).

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vided an amount of reduced service minutes that the child would re-

ceive via teleconference or consultation services.

126

The school was

required to fully implement this ISP; however, in this student’s case,

only two of the six services were provided in their entirety.

127

The ALJ

found that this amounted to a denial of FAPE and entitled the child to

compensatory education services.

128

Noting the relatively low amount

of minutes missed, the ALJ decided that a quantitative approach was

appropriate and tailored the award to provide for an hour by hour

award.

129

B. The Qualitative Method of Calculating Compensatory

Education

Alternatively, the Fourth, Sixth, Ninth, and D.C. Circuit Courts of

Appeals reject the one-to-one ratio approach and instead craft a qual-

itative remedy that focuses strictly on the educational benefit lost

while attempting to place the child in the same educational position

but for the FAPE denial.

130

In requiring a fact-specific inquiry, the

hearing officer must tailor the award to meet the student’s unique

needs based on individual assessments.

131

The D.C. Circuit has rea-

126

Id. at 11. These service minutes were a gross reduction than those provided by the IEP

where the child was to receive direct instruction for the following amounts: 6.5 hours per day of

SPED; 30 minutes per month of occupational therapy (OT); 1 hour a month of Orientation and

Mobility (O&M); 3 hours per month of speech therapy; 1 hour per month of physical therapy;

and 30 minutes per month of Vision Services. Id. at 3. Instead, the ISP called for the following

services: 20 minutes per week SPED; 20 minutes per month OT; 15 minutes per week O&M; 20

minutes per month speech; 20 minutes per month of physical therapy; and only consultations

for vision services. Id. at 6.

127

Id. at 11.

128

Id. at 13

129

Id. The ALJ also provided that the school complete these hours, if necessary remotely,

by December. 18, 2020, because of the ongoing pandemic. Id.

130

Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); Bd. of Educ.

of Fayette Cty. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007); Hogan v. Fairfax Cty. Sch. Bd., 645 F.

Supp. 2d 554, 576 (E.D. Va. 2009); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d

1489, 1497 (9th Cir. 1994)

131

Reid, 401 F.3d at 524; see also Puyallup Sch. Dist., 31 F.3d at 1497.

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soned that the one-to-one quantitative approach acts more as a dam-

age award instead of an equitable remedy.

132

Using the qualitative ap-

proach, the remedy could provide an intensive, albeit short, compen-

satory education award or even an extended program that would

exceed the one-to-one replacement.

133

Circuit courts which follow this

approach find that the compensatory award should be guided by IDEA

and provide a FAPE that meets the individual needs of the child by

providing the necessary services to provide the “educational benefit

that likely would have accrued from special education services” that

were lost.

134

In Reid, the hearing officer originally awarded 810 hours or “1

hour each day of special education services not provided.”

135

The

court found that the initial award of hour-for-hour compensation was

not appropriate because a qualitative approach was necessary under

the IDEA.

136

Instead, the court remanded the issue with the instruc-

tion to provide evidence that showed the child’s “specific educational

deficits resulting from his loss of FAPE and the specific compensatory

measures needed to best correct those deficits.”

137

This is the same

inquiry used by circuit courts following the qualitative approach to-

day.

In Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nes-

bit, the first attempt at crafting compensatory education services was

left to a multi-disciplinary team that included the parents and

school.

138

Unfortunately, no progress was made.

139

The hearing officer

then ordered a compensatory education award that required 3,300

hours of tutoring, based on a failure to provide 27.5 hours per week

132

Reid, 401 F.3d at 523.

133

Id. at 524; Park v. Anaheim Union High Sch. Dist.,464 F.3d 1025, 1033 (9th Cir. 2006);

Bd. of Educ. Of Oak Park, 79 F.3d at 657; M.C., 81 F.3d at 397.

134

Reid, 401 F.3d at 524; see also Ferren C. v. Sch. Dist. of Phila., 612 F.3d

712, 717–18 (3d Cir. 2010).

135

Reid, 401 F.3d at 520. The hearing officer also crafted a clause that allowed the IEP

team to conclude compensatory education services when they were no longer needed, which

the court found counter to IDEA

136

Id. at 523.

137

Id. at 526.

138

Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 532 F. Supp. 2d 121,

122 (D.D.C. 2008).

139

Id.

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for over forty weeks, but the adjudicator noted that the record was

woefully inadequate.

140

On appeal, the district court called this award

a “mechanical hour-per-hour calculation” and vacated it because the

award was not individually tailored, used a “backwards-looking cal-

culation of educational units denied to a student,” and because the

hearing officer failed to provide reasoning for this decision.

141

During

the interim, the child received 1,400 hours of individualized tutor-

ing.

142

The family received new evaluations, and, at an evidentiary

hearing, provided for an expert witness that proposed a compensa-

tory education plan which included the 1,400 hours already provided,

and called for an additional 950 hours in both math and reading tu-

toring.

143

The court noted that this amounted to the same 3,300 hours

initially awarded, but found that, in this instance, the formula-based

calculations were supported by qualitative analysis to place the child

in the same situation but for the denial of FAPE.

144

C. A Hybrid Method of Calculating Compensatory Education

Although the circuit courts are split, there is still evidence that,

among the lower courts and within the hearing officers’ jurisdiction,

judges are often using a split of both qualitative and quantitative ap-

proaches.

145

This occurs because the IDEA does not provide guidelines

for crafting compensatory education awards; nor has the Supreme

Court provided an applicable test. Therefore, the adjudicator often re-

sorts to the remedy requested by the parents and the experts’ opin-

ions from each side.

146

Even in the D.C. Circuit, which created the qual-

itative approach method, courts have utilized the one-for-one

140

Id.

141

Id. at 123–124.

142

Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 669 F. Supp. 2d 80,

82 (D.D.C. 2009).

143

Id. at 83.

144

Id. at 87.

145

Perry A. Zirkel, The Two Competing Approaches for Calculating Compensatory Educa-

tion under the IDEA: An Update. 339 WEST’S EDUC. L. REP. 12 (2017) [hereinafter Compensatory

Education Update].

146

Woods v. Northport Pub. Sch., 487 F. App'x 968, 978 (6th Cir. 2012) (upholding the

hearing officers 758 hour award for the 12 hours denied over the course of two years based on

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approach, where expert’s methodology supports the total amount.

147

In fact, as long as the record is clear that the court’s decision is based

on placing the child where she would have been but for the violation,

these hidden quantitative methods have been upheld.

148

In recent months, a variety of ALJ’s have been faced with this

very issue as parents bring due process complaints for the denial of

FAPE for their children with disabilities. The opinions of the ALJ’s pro-

vide insight into potential compensatory remedies that are appropri-

ate, but also demonstrate the variances between states and circuit

courts. These variances are problematic because a child’s state of res-

idence should not determine the type of compensatory education ser-

vices awarded, especially considering that this is not the case for the

tuition reimbursement scheme.

In a recent due process hearing within the Ninth Circuit,

149

now aged out child was in the midst of postsecondary transition coun-

seling services that provided hands-on vocational training and com-

munity-based instruction as mandated by her IEP.

150

These services

were necessary for her continued success after graduation.

151

The

school had provided a distance learning program during the shut-

down, but the total amount of minutes provided was far less than re-

quired and did not incorporate the community-based instruction.

152

Although the LEA argued that they had done their best in adhering to

the IDEA requirements to the max extent possible, once regular school

resumed the LEA did not make any individualized decisions on

whether the student needed compensatory services.

153

expert testimony that child’s window of opportunity to be literate was closing); B.H. v. W. Cler-

mont Bd. of Educ., 788 F. Supp. 2d 682, 701 (S.D. Ohio 2011) (finding that the two year award

was appropriate where the child was denied FAPE for two years, but the expert recommended

3–4 years of physical and occupational therapy).

147

Nesbitt, 669 F. Supp. 2d at 253.

148

Matanuska-Susitna Borough Sch. Dist. v. D.Y., No. 3:09-CV-0073 JWS, 2010 WL

679437, at *6 (D. Alaska Feb. 24, 2010)

149

The Ninth Circuit has followed the qualitative method.

150

Los Angeles Unified Sch. Dist., 77 IDELR 116, at 2 (CA SEA. Aug. 24, 2020).

151

Id. at 7.

152

Id. at 10. (During shutdown the student missed half of their minutes for life training

and independent living skills totaling 910 minutes lost.)

153

Id. at 13.

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Ultimately, the ALJ found that the distance learning fell mate-

rially short of actual implementation of the IEP and that the LEA failed

to follow OSERS advice by not creating compensatory services.

154

the time of the decision, in-person schooling, hands-on vocational

training, and community training were all unavailable given the con-

tinued COVID-19 pandemic.

155

The ALJ cited Reid in crafting the type

of compensatory services necessary to compensate the child for the

violation of FAPE.

156

Consequently, the ALJ reasoned that the child

needed an immediate remedy because the student had shown a re-

gression of skills during the shutdown and distance learning.

157

The

award required funding of forty hours of postsecondary transition

counseling to compensate for the lack of related services during the

shutdown, which was much less than the 116 hours of training she

should have received; as well as a one-hour session of group speech

and language for the one-hour session that was missed.

158

Conse-

quently, the award for compensatory education included a qualitative

and quantitative approach so that it was tailored to the individual

needs of the student.

In contrast, in Brookings Sch. Dist.,

159

a school was found to have

provided most of the child’s minutes during distance learning, and,

that because the child was able to make progress towards the annual

goals, compensatory education was not warranted.

160

The reports

during distance learning showed that the student received less direct

educational service minutes than required by the IEP and less related

service minutes in speech/language and occupational therapy (OT)

than required by the IEP.

161

However, the parents lacked evidence

and documentation to demonstrate that the student had not made ap-

propriate progress. In contrast, the LEA provided evidence that the

154

Id. at 9.

155

Id.

156

Id. at 14 (citing Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005)).

157

Id. at 15.

158

Id. at 16.

159

Located in within the Eighth Circuit Court of Appeals.

160

Brookings Sch. Dist., 77 IDELR 55, at 10 (S.D. SEA, Aug. 7, 2020).

161

Id. at 10.

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student had made progress and did not need compensatory educa-

tion.

162

Therefore, the ALJ found that during the COVID-19 shutdown

there was not a FAPE denial.

163

However, the ALJ did award a one-day

replacement via distance learning or in-person for the first day of ESY

that the child missed and mandated that it be completed prior to the

beginning of the 2020–21 school year.

164

Thus, compensatory educa-

tion was awarded to replace the one missed day, even though there

was no evidence that it negatively affected the student’s academic

progress.

165

Perhaps the discrepancy between these two decisions is

explained by the fact that the LEA had agreed to provide compensa-

tory education for the one day missed and disagreed with the neces-

sity of compensatory education for the missed time during distance

learning.

166

Ultimately, this decision seems at odds with the ALJ’s own

reasoning.

III. APPROPRIATE REMEDY FOR FAPE VIOLATIONS

Students with disabilities who are denied FAPE might find

themselves in one of three groups. The first group is those that made

adequate progress towards their goals in spite of the denial and will

not need compensatory education services. The next group of stu-

dents are those that make some limited progress or none at all. This

lack of progress could have been the result of a deficient learning pro-

gram because of the lack of related services, missed minutes, or im-

properly trained teachers and service providers. Finally, the last

group of students are those that the school failed to identify as a child

with a disability or perhaps failed to implement the IEP with fidelity,

leading to educational regression. These last two groups of students

deserve compensatory education services that will place them in the

same position they would have been but for the FAPE denial. Notably,

these last two groups are analogous to the children with disabilities

who were adversely affected by the COVID-19 school closures.

167

162

Id. at 16.

163

Id.

164

Id. at 18.

165

Id. at 16.

166

Id.

167

Children from low-income families often are overrepresented in special education;

therefore, many students with disabilities may not have equal access to on-line learning because

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Section A, which follows, will identify the problems that the cir-

cuit split has on these last two groups of students. Section B will focus

on a legislative solution that will attempt to provide equity for all stu-

dents with disabilities across the United States. Finally, the potential

issues with the judicial solution will be addressed in Section C.

A. The Problem with an Imprecise Remedy

The recent ALJ decisions show the inadequacy of the current

standards, especially as they pertain to FAPE denials during COVID-

19. The Brookings School District and El Paso County School Districts

are located in the Eighth Circuit, where historically a quantitative one-

to-one approach has been utilized; whereas Los Angeles Unified

School District lies within the Ninth Circuit, where precedent calls for

a qualitative approach.

168

These discrepancies in how compensatory

education is awarded demonstrate the necessity for a standard that

utilizes unbiased expert opinions and provides unique tailoring of

compensatory education services that utilize both qualitative and

quantitative methods. Moreover, multiple circuits repeatedly cite to

Reid, where the court stated the purpose of compensatory education

is to place the student in the position that the student would have

been had the LEA provided FAPE in the first place.

169

“[O]rdinary [ed-

ucational programs] need only provide ‘some benefit,’ compensatory

awards must do more—they must compensate.”

170

If this is the goal,

then, arguably, these recent COVID-19 cases, and many other compen-

satory education cases, were wrongly decided.

1. Differing Treatment Based on Geographic Location

One of the biggest problems with the current circuit court split

is that children with disabilities might receive less appropriate com-

pensatory education awards, depending on their geographic region.

of financial constraints. Kamenetz, supra note 93.

168

See supra Section II.C.ii.

169

Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).

170

Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (quoting Reid,

401 F.3d at 525).

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While education activists and politicians have recently attempted to

change current policies (which have yielded a system in which a

child’s zip code dictates her educational outcomes),

171

awards for

compensatory education have failed to meet this goal.

Going back to our case example, depending on whether Jack was

located in a quantitative or qualitative circuit could vastly change the

type of compensatory education awarded. If he lived in a quantitative

circuit, Jack could receive after-school services or private tutoring for

a duration of 110 hours, just for the time missed during the COVID-19

distance learning. This would be in addition to the deprivation that

occurred due to the inappropriate IEP during his third-grade school

year, which could amount to over 180 hours for both math and read-

ing.

172

In contrast, using the qualitative approach, Jack’s mother might

struggle to find or afford an expert, resulting in the adjudicator agree-

ing with the school that perhaps only a change in IEP and seven weeks

of Extended School Year services would be sufficient. Seven weeks of

services would mean that Jack would get a total of 56 hours to make

up for the deprivation in both math and reading, as well as the four

related services. More optimistically, in the case where Jack’s mother

does find an expert, the adjudicator may be persuaded that, even

though Jack received some math and reading during the COVID-19

shutdown, his disability made it impossible for Jack to gain any aca-

demic benefit. So, although Jack’s mother asked for 45 hours of com-

pensatory services for math and reading for that deprivation, the ad-

judicator could find Jack is actually entitled to seventy hours for both

subjects. This same reasoning could result in a compensatory educa-

tion award for the inappropriate IEP during third grade to also be

much longer in duration. But it is apparent that the nature of these

awards may be dependent on a parent’s income level, their ability to

find appropriate experts, and even the adjudicator’s general under-

standing of special education.

171

Mark A. Elgart, Student Success Comes Down to Zip Code, HUFFINGTON POST (May 26,

2017), https://www.huffpost.com/entry/too-often-student-success_b_10132886; Nicole Dan-

iels, How Much Has Your ZIP Code Determined Your Opportunities?, N.Y. TIMES (May 19, 2020),

https://www.nytimes.com/2020/05/19/learning/how-much-has-your-zip-code-determined-

your-opportunities.html; Lexie Woo, Zip Code Should Not Determine a Student’s Access to Quality

Education, EDUC. POST (Oct. 28, 2015), https://educationpost.org/zip-code-should-not-deter-

mine-a-students-access-to-quality-education/.

172

Assuming he was due five hours of special education math and reading services each

week for the average school year which is thirty-six weeks.

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2. Rogue ALJs and the Income Disparity

Furthermore, as seen Section II.C, adjudicators often apply a hy-

brid approach, using both qualitative and quantitative methods of cre-

ating a remedy. This stems from the main issue that ALJs are not edu-

cators and have not been given clear guidance.

173

As the court noted

in Nesbit, “[w]hile I do have the authority to fashion a compensatory

education award, I certainly do not have the expertise of an educa-

tor.”

174

ALJs can rely on LEA’s opinions for the creation of compensa-

tory education services. However, an over-reliance on schools that are

systemically discriminating against students with disabilities is likely

to only promulgate more problems.

175

The question remains: how are

hearing officers to decide what services are necessary, and to what

degree a child would have progressed but for the violation?

176

One way parents from higher income brackets can combat an

ALJ’s overreliance on the LEA’s experts is by hiring their own experts.

Although the IDEA does allow the court to provide attorney’s fees for

the prevailing party,

177

the Supreme Court found that expert fees are

not recoverable in IDEA cases.

178

Parents have a high burden of proof

to not only show when the FAPE denial has occurred, but also why

and how compensatory education awards should be crafted. Gener-

ally, evidence about “educational methodology, complex behavioral

supports, medical issues, and other technical subjects” are necessary;

which means that multiple expert witnesses would be needed.

179

Ex-

pert witnesses can cost thousands of dollars, placing a large burden

173

Terry Jean Seligmann & Zirkel, supra note 7, at 301.

174

Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 669 F. Supp. 2d 80,

84 (D.D.C. 2009).

175

See Class Action Complaint, Z.Q. v. N.Y.C. Dept. of Educ. No. 20-cv-09866, p. 2 (S.D.N.Y.

11/23/20); Complaint, W.G. v. Kishimoto, Case No. 20-cv-00154 (D. Haw. 4/13/20); Anya Kame-

netz, supra note 93.

176

Seligmann & Zirkel, supra note 7, at 301.

177

20 U.S.C. § 1415(i)(3)(B)(i)(I)

178

Id. § 1415(i)(3)(B); Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291, 304 (2006).

179

Reinstate Prevailing Parents’ Right to Expert Witness Fees, COPAA (last accessed May

6, 2021), https://www.copaa.org/page/ExpertWitness.

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on lower-income families.

180

Finally, the problems of income disparity are most prevalent

when students with wealthy parents unilaterally choose a private

school or tutoring services and simply wait for total tuition reim-

bursement once they are successful in their due process claim. In our

case example, if Jack’s mother were part of the upper (or upper-mid-

dle) class, she may respond to the fact that the new IEP is grossly in-

appropriate for her autistic child by sending him to a private school,

which may offer innovative therapies and services for children with

autism. Under the IDEA, if she was successful at showing that the

school denied Jack a FAPE, she could not only be awarded tuition re-

imbursement for the third grade, but an adjudicator might also find

that the private school was the appropriate placement, and that the

LEA must continue to pay the private tuition. If, however, Jack’s

mother came from a middle-class income bracket, she may not be able

to afford private school; but could still likely afford a private tutor to

work with Jack after school during the COVID-19 shutdown and the

third-grade school year. Here again, if she was successful at proving a

FAPE denial, the adjudicator could award tuition reimbursement and

order that the tutoring continue as compensatory education award for

the deprivation. Lastly, if Jack’s mother were from a lower socio-eco-

nomic level, she would likely have no such options as those described

above. Jack would likely be forced to stay at the district school, in

which he would likely continue to receive the same sub-par education,

based on the inappropriate IEP. It is reasonable to assume that, in

such a scenario, nothing would change until Jack’s mother fully liti-

gated her due process complaint and the adjudicator awarded com-

pensatory education services.

This hypothetical case example highlights the different out-

comes for children with disabilities, based on their families’ income

levels. The majority of ALJs are not experts in special education and

rely on experts to explain what is appropriate and necessary for chil-

dren with disabilities. If parents cannot afford their own experts, then

ALJs will rely on the LEA’s opinions, which may be to the detriment of

the child. Similarly, it is much simpler for ALJs to award tuition reim-

bursement because it is codified in the IDEA, and because it is a

straightforward quantitative measure. If a parent paid $10,000 for tu-

ition, the ALJ can simply award that same amount. The issue of income

180

See id.

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disparity in the context of special education is crucial to understand-

ing the importance of codification, because “approximately two-thirds

of children with disabilities live in households that qualify as (or are

just over) low-income.”

181

These issues will continue unless a new

method for calculating compensatory education is codified.

3. The Disadvantages of the Quantitative Method

Using the case example of Jack, an adjudicator using a quantita-

tive method would most likely find that Jack is owed compensatory

services for the inappropriate IEP that was created in February of

2020. As of March 2021, it has now been a full year of the same goals

and services that have not provided educational benefit to Jack. He re-

mains at a pre-k level and will soon be entering the fourth grade.

Therefore, an award that provides compensatory education for one

year of each of the related services (speech, occupational therapy, so-

cial work, and adapted physical education) should be awarded. For

example, Jack’s mother wanted him to receive an additional thirty-mi-

nute session each week, but the school had refused, so the award of

compensatory education should be a total of 1,152 minutes.

182

It also

should provide an award for instruction in math and reading for the

year of deprivation. Additionally, the adjudicator could award extra

time for the deprivation during the shutdown, which Jack’s mother

has already calculated by totaling the amount of missed services dur-

ing the ten weeks.

There are multiple positives for this approach. First, it allows

for low-income parents to rely on accessible data instead of expensive

experts. One source of accessible data could include independent ed-

ucational evaluations (IEEs), which could show a FAPE denial by the

district. If parents are concerned about the placement of their child,

the IEP goals, objectives, or related services, or even the failure to

identify their child as in need of special education, they are entitled to

an independent educational evaluation at public expense.

183

The IEEs

can demonstrate the types of services that the student requires, any

181

Seligmann & Zirkel, supra note 176, at 664.

182

The average school year is 36 weeks, so the time is calculated by multiplying 36 weeks

x 30 minutes.

183

34 C.F.R. § 300.502

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deficits that are not being addressed by the IEP goals or objectives,

and the current academic, social, and physical levels of achievement.

Alternatively, IEP progress reports, grades and attendance records

also provide valuable information, such as when the student began

failing to make progress or regress. This type of information can be

used by the adjudicator to pinpoint a time where the school knew, or

should have known, of the FAPE denial, in order to rectify the issues

with the IEP.

Once that time is calculated, the adjudicator can craft the appro-

priate remedy for that period of deprivation. For example, if the

school failed to identify a kindergarten child, and the IEE that same

year reveals the student did qualify for speech services, the adjudica-

tor could provide speech services for that missed year. Alternatively,

if a current sixth grader’s progress reports consistently show that he

is not progressing on his reading goals, and that he has continued to

read at the fourth-grade level, has perfect attendance, and has been

failing reading since the fifth grade, the adjudicator might award com-

pensatory education services for a reading tutor for the year and a half

that the student failed to make progress because the IEP goals, objec-

tives, or services were inappropriate for reading. Or, in the case of

COVID-19, where a child’s IEP required two thirty-minute sessions of

occupational therapy, but distance learning made this inappropriate

during seven weeks of Spring 2020, the adjudicator can award seven

hours of occupational therapy services for the failure to implement

the IEP.

Critics of this approach point out that adherence to IDEA re-

quires that services take the unique needs of the child into considera-

tion, which is a tenet of IEP.

184

However, if an IEP that has been espe-

cially crafted for a child was not properly implemented, resulting in

forty hours of missed special education services, why must the parent

subsequently prove those forty hours were necessary, since the initial

IEP stated that they were necessary? Similarly, even in cases where

the IEP was inappropriate, or the district failed to identify the child,

once an appropriate IEP is written it will contain the total amount of

minutes for the special education services during the regular school

year, which can serve as a blueprint for the total amount that should

have been provided during the period of deprivation. Again, this new

IEP would have taken into consideration the unique needs of the child,

184

Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).

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and using it as a guide for quantifying the time lost would then mean

the award has also been uniquely crafted to the child. Issues arise

when the child has received some academic benefit during those clas-

ses, but not nearly enough to be considered a FAPE. In that case quan-

tifying the compensatory award is not as simple as adding up the

missed hours of classes. The quantitative method fails because there

is often ambiguity surrounding the circumstances of a child’s aca-

demic growth. Sometimes providing more hours of instruction will

not support the child. In fact, doing so could conceivably be more det-

rimental, due to factors such as student resistance to the lengthy

school days or loss of summer vacation.

4. The Disadvantages of the Qualitative Method

In Jack’s case, if he was located in a qualitative circuit, his

mother could present the same quantitative data as stated above, but

she would need to have some sort of expert testimony that affirmed

this amount as necessary for placing Jack in the same place he would

have been but for the deprivation. Jack would likely need to be tested

again to show that he failed to make adequate progress during the

third grade as well as during the COVID-19 shutdown. Multiple ex-

perts would be necessary, because Jack is receiving related services

for occupational therapy, adapted physical education, social work,

and speech therapy. They would need to explain why Jack needed the

total amount of compensatory services, and how these should be pro-

vided. In contrast, the district, using their own experts, might argue

that, based on Jack’s exceptionality, his progress has been adequate

and that he would not benefit from extra minutes. Perhaps the district

might agree to some compensatory services, but only extra minutes

during the six-week summer session, which would be grossly below

the amount requested by Jack’s mother. The adjudicator would have

to decide which expert to believe, and what amount would serve Jack

best.

185

See Parent v. Cty. Public Sch., #20-064/20-069, at *36–37 (June 23, 2020)

https://www.doe.virginia.gov/special_ed/resolving_disputes/due_process/hearing_officer_de-

cisions/2019-20/index.shtml (last accessed Mar. 16, 2022) (Wherein the hearing officer found

that the parents’ expert more qualified than the school’s experts but noted that in the fourth

circuit due deference is given to educators (citing Cty. Sch. Bd. Of Henrico Cty., Va. v. Z.P. ex rel.

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There are benefits to the qualitative approach, including the fact

that an adjudicator could award compensatory education services in

excess of the total amount of deprivation. Moreover, the analysis uti-

lized usually requires expert information so that the compensatory

award will actually result in educational benefit to the child. This is

important, because if the child has regressed significantly, or has ex-

perienced trauma because of the inappropriate placement or IEP, the

child might need services in excess of the time of deprivation. How-

ever, the supporting evidence often required for the qualitative anal-

ysis is cost-prohibitive to low-income parents. Educational experts

are expensive to obtain, and, depending on the district’s geographic

region, might be difficult to find. Moreover, the district may provide

their own experts to counter the parents’ request for relief, leaving

the adjudicator to craft the remedy.

186

Finally, adjudicators often use the quantitative method as a

guide for crafting the award, especially when a child has only been de-

prived of a few hours of instruction.

187

This essentially lets LEAs that

have committed gross long-term violations off the hook for the many

hours that they failed to provide a child with FAPE, while awarding

parents full recompense if their child attended an LEA that committed

shorter in-time violations. Therefore, the qualitative method often

fails both the LEAs and the child.

B. A Statutory Created Solution

Congress needs to codify compensatory education guidance

within the IDEA as they did the tuition reimbursement set forth in

Burlington. Codifying compensatory education not only provides par-

ents with a framework of possible remedies, but it also puts LEAs on

notice that failing to provide a FAPE could result in extensive and

costly awards. One critical issue is that, even with codification, the

remedy will probably not have a significant impact on the majority of

students with disabilities. Today, low-income families, English learn-

R.P., I 399 F.3d 298, 313 (4th Cir. 2005)).

186

“While I do have the authority to fashion a compensatory education award, I certainly

do not have the expertise of an educator.” Friendship Edison Pub. Charter Sch. Collegiate Cam-

pus v. Nesbitt, 532 F. Supp. 2d at 84.

187

See supra Section III.C.

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1] Equity in Education

ers, and minority students are faced with many educational dispari-

ties; but their ability to file due process complaint against the school

is limited by access to justice issues, such as finding and retaining an

attorney or knowing when their rights have been violated. Further-

more, administrative hearings can involve expert and attorney’s fees,

which is another financial hurdle for families.

188

Codification can be

an important first step in supporting children with disabilities.

When an LEA denies a child a FAPE, it should be required to

make up those lost minutes. By analogy, if schools must make up days

during the school year to comply with total days/hours in the school

year then, we should afford the same protections to children with dis-

abilities. Just as wealthy parents get a full tuition reimbursement for

FAPE denials, less affluent parents should get a full-time reimburse-

ment that is uniquely crafted to place the child in the same position,

but for the deprivation. The hearing officer or court is given the power

to decide and craft the remedy. Therefore, in making up for lost

minutes and days due to a denial of FAPE, the award could provide for

a hybrid method of the quantitative and qualitative approaches.

1. Quantitative Baseline

Utilizing a quantitative approach that focuses on the amount of

deprivation provides a clear standard for hearing officers to start

from when crafting an award. As the court noted in Nesbit, “[a] com-

pensatory award constructed with the aid of a formula is not per se

invalid.”

189

Furthermore, it appears that ALJs are more willing to pro-

vide a one-to-one ratio when the compensatory education award is

rather limited in time.

190

The reason schools do not want this type of

remedy is because this could require them to provide services for ex-

tended periods at great cost. However, the two-year statute of limita-

tion provides a newly created barrier that makes it highly unlikely

that courts will award years of compensatory education, as they did

in Draper.

191

Therefore, prolonged awards that contemplate years of

188

Seligmann & Zirkel, supra note 176, at 301.

189

Nesbitt, 532 F.Supp.2d at 123.

190

See supra Section II.C.ii.

191

In fact, some states have limited this time even farther. See LA 1 year stat. of lim.

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services are no longer at issue and should not be a limiting factor in

adopting this quantitative base for compensatory awards. Moreover,

more current trends in cases appear to address only partial denials of

FAPE, where the school fails to provide a certain service;

192

or, in the

case of COVID-19 closures, perhaps related services that do not lend

themselves to on-line distance learning.

Using the COVID-19 cases as case studies in Brookings Sch. Dist.,

instead of concluding that the lack of minutes was irrelevant since

progress had been made, the ALJ should have reviewed the possibility

that by providing the full number of minutes the student would have

met the annual IEP goals. If that was true, then compensatory educa-

tion services should have been provided to place him in the same po-

sition that he would have been prior to the FAPE denial. The ALJ could

have asked whether the student made the same rate of progress as he

had pre-COVID, which would reveal whether the distance learning

was actually adequate. Furthermore, by providing the full amount of

minutes that the child was deprived, it is more likely the compensa-

tory education services will allow for the child to meet the IEP goals

and objectives, which should have been individually tailored to the

child’s needs. This type of analysis would align with Endrew F., which

requires the progress made be appropriate, considering the child’s

disability and potential.

2. A Qualitative Cap

A one-to-one remedy could be crafted, with a clause that al-

lowed for schools to stop the compensatory education services when

the student meets the IEP goals. This would incentivize the school to

provide appropriate services quickly and efficiently. If a student be-

gins meeting the goals that were in place for the past school year, an

IEP meeting could be held. If the IEP team is in agreement, the com-

pensatory education services could be stopped. This would essentially

create a remedy that provides two paths for the school: give the re-

quired amount of minutes to be completed by a date set by the ALJ, or

OTHERS

192

Orange Unified Sch. Dist. v. C.K., 59 IDELR ¶ 74, No. SACV 11-1253JVS, 2012 WL

2478389, at *11–14 (C.D. Cal. June 4, 2012); Woods v. Northport Pub. Sch., Nos. 11-1493, 11-

1567, 2012 WL 2612776, at *9 (6th Cir. July 5, 2012)

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1] Equity in Education

give the required amount of minutes until the goals are met. In es-

sence, this would balance the qualitative and quantitative approaches.

The argument against this method is that hearing officers are

supposed to make the decision.

193

There is precedent and law stating

that the ALJ does not have the power to subrogate his power and allow

the IEP team to create the remedy.

194

But these cases are not analo-

gous, because in those instances the IEP team was essentially crafting

the compensatory education services based on a new evaluation for

the IEP.

195

In contrast, this type of compensatory education award is

analogous to the remedy crafted in the Eleventh, Ninth, Sixth, and

Fourth Circuit Courts of Appeals.

196

In Draper, the student was

awarded compensatory education at a private school for five years or

until he graduated, whichever came first.

197

Likewise, in the Sixth Cir-

cuit, the court upheld a compensatory education award that provided

for two years of services missed, and allowed for a committee to de-

termine when the award would be fulfilled.

198

A quantitative, one-to-

one approach in setting the total amount of compensatory education

services would be appropriate when coupled with a qualitative ap-

proach that allows for the services to come to an end, once the IEP

goals have been met or the minutes have been recouped, whichever

comes first.

When there has not been a drastic regression, courts and hear-

ing officers can be more creative in crafting their award. Every child

193

20 U.S.C. § 1415(f)(3)(E)(i).

194

See Id; see also Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 526 (D.C. Cir. 2005);

Bd. of Educ. of Fayette Cty., Ky. v. L.M., 478 F.3d 307, 318 (6th Cir. 2007); M.S. ex rel. J.S. v. Utah

Schs. for Deaf and Blind, 822 F.3d 1128, 1136 (10th Cir. 2016).

195

Id.

196

Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1283–84 (11th Cir. 2008); Hawaii,

Dept. of Educ. v. Zachary B. ex rel. Jennifer B., No. CIV. 08-00499JMSLEK, 2009 WL 1585816, at

*10 (D. Haw. June 5, 2009) (crafting an award that allowed for fifteen months of one-to-one tu-

toring for one day each week that was overseen by an independent tutor); Bd. of Educ. of Fayette

Cty., Ky, 478 F.3d at 318; Hogan v. Fairfax Cty. Sch. Bd., 645 F. Supp. 2d 554, 576 (E.D. Va. 2009)

(finding that the services could be completed in a manner that was mutually agreed upon by

both parties).

197

Draper, 518 F.3d at 1283–84 (“The district court awarded Draper full services at the

Cottage School without the $15,000 cap and extended the time frame of the remedy to 2011 or

when Draper receives a high school diploma, whichever comes first.”).

198

Bd. of Educ. of Fayette Cty., Ky, 478 F.3d at 318.

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is different and requires a unique IEP. To align with Endrew F., the

special education and related services need to be reasonably calcu-

lated to provide academic benefit. In the same way, compensatory ed-

ucation services should align with this goal, with the added objective

of compensating the student. Other scholars have called for using the

total amount of hours deprived as a “yard stick” that then can be sup-

plemented by educational records and experts.

199

This information

should be utilized, but is not the only key to ensuring that the remedy

is uniquely tailored.

For example, the court not only crafts the amount of compensa-

tory services, but also has the authority to craft what and how the ser-

vices will be provided.

200

This crafting would include the “kinds of ser-

vices . . . to be provided and funded by the district . . . the timing and

furnishings of the services, and deal with who will provide them, or

who will control the choice of the provider.”

201

Likewise, in cases

where the child has regressed, more hours might be necessary; which

is why this proposal argues that the amount deprived be the minimum

amount of services provided (and it is well within the ALJ's power to

increase that amount if necessary). Conversely, the total amount can

be reduced because of parental interferences, the time for the school

district to remedy the issue, and absences of the student.

202

Therefore,

the hearing officer will continue to retain the power to create an indi-

vidualized determination for the student.

Potential language for the codification could mirror the tuition

reimbursement and outline the limitations of this award. Such lan-

guage might include the following:

If the parents of a child with a disability, who previ-

ously received special education and related services

under the authority of a public agency or if the public

agency has failed to meet their child find requirement,

successfully demonstrates that the public agency has

denied or not made available to the child a free and

appropriate public education in a timely manner, a

court or a hearing officer may require the agency to

199

Seligmann & Zirkel, supra note 176, at 311.

200

Id.

201

Id.

202

See supra Section II.B.i.

Cerrato: Fixing Compensatory Education for Students with Disabilities

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1] Equity in Education

award compensatory education services in order to

place the child in the same position but for the depri-

vation. Calculation of this time should be guided by the

total time of deprivation taking into consideration the

following: the reasonable time it would take for the

public agency to remedy the denial; the absences of

the child; parental interference; and regression of the

child. These factors could reduce or enhance the total

award. Finally, a court or a hearing officer may require

the public agency in collaboration with the parents or

in the alternative an independent expert to terminate

the compensatory education award once the child has

completed the goals contained in an appropriate indi-

vidual education plan.

C. Potential Challenges of this Approach

This change is necessary because it is often difficult to prove

how much compensatory education is sufficient to place the child in

the same position he would have been but for the deprivation. The

guidance that this Article proposes relies on the fact that the IEP

teams, which includes the parents and child, will be working cooper-

atively to ensure students with disabilities are making continued pro-

gress. Considering the reason a parent has to file for due process is

because the LEA refused or failed to provide a FAPE, not every LEA

can be trusted to ensure students with disabilities are provided a

FAPE; let alone the compensatory education services for its denial.

However, this is rectified by having the adjudicator order an outside

entity or provider to make the appropriate decision if there is evi-

dence of animosity between the school and parent.

Moreover, courts in the qualitative circuits often rely on the

idea that “formula-based award may in some circumstances be ac-

ceptable if it represents an individually-tailored approach to meet the

student's unique prospective needs, as opposed to a backwards-look-

ing calculation of educational units denied to a student.”

203

Using the

203

Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 532 F. Supp. 2d 121,

123 (D.D.C. 2008); see Mary McLeod Bethune Day Acad. Pub. Charter Sch. v. Bland, 534 F. Supp.

2d 109, 117 (D.D.C. 2008), modified in part, 555 F. Supp. 2d 130 (D.D.C. 2008).

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amount of deprivation as the starting point is obviously “backwards-

looking.” However, this is remedied by the unique tailoring of the

“what” and “how” portion of the award. Moreover, backwards-looking

calculations are not inherently wrong. Tuition reimbursement is ob-

viously backwards looking in finding the total amount of payment that

should be awarded. Therefore, less affluent families should not be re-

quired to meet a higher standard of proving how much services their

child needs through new evaluations or the hiring of expensive ex-

perts.

CONCLUSION

While previous compensatory education claims were limited to

schools who had failed to comply with a single student’s IEP due to

internal reasons, which included lack of personnel, absences, or even

bad-faith efforts by the school; there exists a potential for widespread

denial of a FAPE for the many special education students throughout

the nation, due to the recent COVID-related school closures. Likewise,

prior compensatory education awards were vastly varied and judi-

cially created, which is why there needs to be a clarification, such that

school districts, ALJs, and hearing officers can be better prepared in

the future.

Notably, this article does not address certain issues that could

affect the construction of compensatory education services by a court.

These include the fact that distance learning often requires parents to

sit with their child and be a teacher; this is not a FAPE, it is home-

schooling. Alternatively, courts will have to decide whether a child is

owed services when a parent declined the distance-learning plan that

a good faith district attempted to implement. These issues are im-

portant, but are directed at the liability part of FAPE denial, while this

article is solely focused on the remedy.

This Article proposes a balance of the quantitative and qualita-

tive methods currently employed throughout the circuit courts. A one-

to-one ratio of the time missed when the child has not made adequate

progress is essential to placing the student in the same position they

would have been but for the FAPE violation. Moreover, a clause can be

added to this type of award, to the effect that, once the student has

met the goals of the IEP, the compensatory education services can be

stopped. This clause allows for the remedy to be individualized, but

Cerrato: Fixing Compensatory Education for Students with Disabilities

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1] Equity in Education

also gives the hearing officer a starting point in the crafting of com-

pensatory education. The court can also individually tailor the rem-

edy, based on a variety of factors, such as whether the student is at a

risk of regression and whether the goals lend themselves to in-person

or distance learning. Consequently, the guidance by OSEP around ESY

services

204

lend credence to the view that compensatory services can

be provided in the same manner, to make up for the lost minutes and

services. Schools can look to periods of vacation, weekends, or after

school to make up for these lost minutes. As the most prevalent rem-

edy for families with children with disabilities, this statutory remedy

needs to be formulated to ensure that students with special needs are

provided a free and appropriate education under the IDEA.

204

See supra Section II.C.i.

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