Compensatory Education. Alice K. Nelson Senior Attorney Southern Legal Counsel, Inc. Gainesville, Florida www.southernlegal.org. Title I – Elementary and Secondary Act of 1965. Public Law 89-10
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Alice K. Nelson
Southern Legal Counsel, Inc.
Benjamin S. Bloom, Allison Davis, and Robert Hess, The Problem in Perspective, in “Hope for Connecticut’s Disadvantaged Children, A School Administrator’s Guide to State and Federal Programs for Education Deprived Children,” Connecticut State Dept. of Educ., Report Number SCDE-Bull-98, 1966 at 9.
Id. at 25.
Once invoked the scope is broad, for “breadth and flexibility are inherent in equitable remedies.
Id. at 281.
It was argued that the remedy should be no more than correcting unlawful pupil assignments. The Court rejected this, finding that:
The specific educational remedies which, inter alia, included compensatory remedial education, and which are usually left to discretion of school boards and educators, “were deemed necessary to restore the victims of discriminatory conduct to position they would have enjoyed.
Id. at 282.
Process procedures which shall include: (A) prior notice to parents …when the local or State educational agency proposes to change the educational placement of the child, (B) an opportunity for the parents …to obtain an impartial due process hearing, examine all relevant records with respect to the classification or educational placement of the child, and obtain an independent educational evaluation of the child…
Hearings by both the Senate and House Committee were held around the country between May 1973, and April, 1975. Some portions of the hearings focused on this section and the due process hearings that had developed in the States. Suggestions were made
For example, one witnessed wanted to see more enforcement and sanctions other than the withholding of funds. This witness also suggested that the State courts cannot decide the issue in the way that a Federal court could and wished to see a Federal course of action with damage provisions and remediation provisions because a teenager who had never had any education needs such provisions.
Education for All Handicapped Children, 1973-74, S.6, April and May 1973 at 41.
Another witness pointed to the procedures adopted in the consent decree in PARC v. Penn., 334 F.Supp. 1257 (E.D. Pa. 1971).
There were numerous provisions regarding hearing rights, including appeal procedures, which required appeals to the “Right to Education Office” with the ultimate decision by the [State]Secretary of Education.
Financial Assistance for Improved Educational Services for Handicapped Children, H.R. 70, March 1974 at 143
The hearing procedures adopted as the result of Mills v. Bd. of Educ., 348 F.Supp. 866, 880-83 (D.D.C. 1972) were reviewed which contained extensive hearing rights
with which we are now familiar which included, inter alia, notice, right to counsel, right to cross-examination, right to call witnesses and the like.
Appeals were to be decided by a committee of the Board of Education.
Id. at 186
The Committee also heard about Tennessee’s procedures which at the time had judicial review “in the manner provided for judicial review of the determinations of the state or local education agency”
Tennessee also provided for enforcement by a court.
Id. at 187-188.
Final bill: Section 615 includes extensive procedural safeguards including 20 U.S.C. § 1415 (e)(3) [now 1415(i)(C)]:
In any action brought under this paragraph, the court:
(iii) … shall grant such relief as the court determines is appropriate.
Like the retroactive reimbursement in Burlington, imposing liability for compensatory educational services on the defendants “merely requires [them] to belatedly pay expenses that [they] should have paid all along” [citation omitted]. Here, as in Burlington, recovery is necessary to secure the child’s right to a free appropriate public education [citation omitted]. We are confident that Congress did not intend the child’s entitlement to a free education to turn upon the parent’s ability to “front” its costs. (753)
The choice of two remedial options:
1. Substantial additional support services in the district;
2. Placement in a private school at the district’s expense, not to exceed $15,000 per year through July 2009 or when he received a high school diploma, whichever came first.
Phil v. Massachusetts Dep’t of Educ., 9 F.3d 184, 189-190 (1st Cir. 1993) (permitting an award, upon proper showing, to an individual who was twenty-seven years old.) The basis for this is:
In order to give meaning to a disabled student’s right to an education between the ages of three and twenty-one compensatory education must be available beyond a student’s twenty-first birthday. Otherwise, school districts simply could stop providing required services to older teenagers, relying on the Act’s time-consuming review process to protect them from further obligations. Although students able to front the costs of an appropriate education later could claim reimbursement ... absent a compensatory education award, courts would be powerless to aid intended beneficiaries who were over twenty-one but who had not sought out an alternative educational program.