2. Special Education Law a. Statute and Regulations

i. IDEA (20 USC 1400) ii. IDEA Regulations (34 CFR 300, 301) iii. D.C. Code Title 5, Chapter 30, Sections 3000-3033 iv. Part C Final Regulations

b. Special Education Case Law i. Case Law Summaries (December 2011)

ii. Statute of Limitations (2010) c. New Special Education Legislation

i. Special Education Quality Improvement Act of 2014

ii. Enhanced Special Education Services Amendment Act of 2014

iii. Special Education Student Rights Act of 2014 d. Department of Education Office of Special Education

Program Advisory Letters e. Other Resources

UNITED STATES CODE SERVICECopyright 2011 Matthew Bender & Company,Inc.

a member of the LexisNexis Group (TM)All rights reserved.

*** CURRENT THROUGH PL 112-23, APPROVED 6/29/2011 ***

TITLE 20. EDUCATIONCHAPTER 33. EDUCATION OF INDIVIDUALS WITH DISABILITIES

GENERAL PROVISIONS

Go to the United States Code Service Archive Directory

20 USCS 1400

1400. Short title; table of contents; findings; purposes

(a) Short title. This title [20 USCS 1400 et seq.] may be cited as the "Individuals with Disabilities Education Act".

(b) [Omitted]

(c) Findings. Congress finds the following:(1) Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate

in or contribute to society. Improving educational results for children with disabilities is an essential element of ournational policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiencyfor individuals with disabilities.

(2) Before the date of enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94-142)[enacted Nov. 29, 1975], the educational needs of millions of children with disabilities were not being fully metbecause--

(A) the children did not receive appropriate educational services;(B) the children were excluded entirely from the public school system and from being educated with their peers;(C) undiagnosed disabilities prevented the children from having a successful educational experience; or(D) a lack of adequate resources within the public school system forced families to find services outside the public

school system.(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975 [enacted

Nov. 29, 1975], this title [20 USCS 1400 et seq.] has been successful in ensuring children with disabilities and thefamilies of such children access to a free appropriate public education and in improving educational results for childrenwith disabilities.

(4) However, the implementation of this title [20 USCS 1400 et seq.] has been impeded by low expectations, andan insufficient focus on applying replicable research on proven methods of teaching and learning for children withdisabilities.

(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities canbe made more effective by--

Page 1

cgrahamText BoxThis information has been reprinted with generous permission from LexisNexis

(A) having high expectations for such children and ensuring their access to the general education curriculum in theregular classroom, to the maximum extent possible, in order to--

(i) meet developmental goals and, to the maximum extent possible, the challenging expectations that have beenestablished for all children; and

(ii) be prepared to lead productive and independent adult lives, to the maximum extent possible;(B) strengthening the role and responsibility of parents and ensuring that families of such children have meaningful

opportunities to participate in the education of their children at school and at home;(C) coordinating this title [20 USCS 1400 et seq.] with other local, educational service agency, State, and Federal

school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of1965, in order to ensure that such children benefit from such efforts and that special education can become a service forsuch children rather than a place where such children are sent;

(D) providing appropriate special education and related services, and aids and supports in the regular classroom, tosuch children, whenever appropriate;

(E) supporting high-quality, intensive preservice preparation and professional development for all personnel whowork with children with disabilities in order to ensure that such personnel have the skills and knowledge necessary toimprove the academic achievement and functional performance of children with disabilities, including the use ofscientifically based instructional practices, to the maximum extent possible;

(F) providing incentives for whole-school approaches, scientifically based early reading programs, positivebehavioral interventions and supports, and early intervening services to reduce the need to label children as disabled inorder to address the learning and behavioral needs of such children;

(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist inimproving educational results; and

(H) supporting the development and use of technology, including assistive technology devices and assistivetechnology services, to maximize accessibility for children with disabilities.

(6) While States, local educational agencies, and educational service agencies are primarily responsible for providingan education for all children with disabilities, it is in the national interest that the Federal Government have a supportingrole in assisting State and local efforts to educate children with disabilities in order to improve results for such childrenand to ensure equal protection of the law.

(7) A more equitable allocation of resources is essential for the Federal Government to meet its responsibility toprovide an equal educational opportunity for all individuals.

(8) Parents and schools should be given expanded opportunities to resolve their disagreements in positive andconstructive ways.

(9) Teachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessarypaperwork burdens that do not lead to improved educational outcomes.

(10) (A) The Federal Government must be responsive to the growing needs of an increasingly diverse society.(B) America's ethnic profile is rapidly changing. In 2000, 1 of every 3 persons in the United States was a member of

a minority group or was limited English proficient.(C) Minority children comprise an increasing percentage of public school students.(D) With such changing demographics, recruitment efforts for special education personnel should focus on

increasing the participation of minorities in the teaching profession in order to provide appropriate role models withsufficient knowledge to address the special education needs of these students.

(11) (A) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring inmany parts of our Nation.

(B) Studies have documented apparent discrepancies in the levels of referral and placement of limited Englishproficient children in special education.

(C) Such discrepancies pose a special challenge for special education in the referral of, assessment of, and provisionof services for, our Nation's students from non-English language backgrounds.

(12)(A) Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high

dropout rates among minority children with disabilities.

Page 220 USCS 1400

(B) More minority children continue to be served in special education than would be expected from the percentageof minority students in the general school population.

(C) African-American children are identified as having intellectual disabilities and emotional disturbance at ratesgreater than their White counterparts.

(D) In the 1998-1999 school year, African-American children represented just 14.8 percent of the population aged 6through 21, but comprised 20.2 percent of all children with disabilities.

(E) Studies have found that schools with predominately White students and teachers have placed disproportionatelyhigh numbers of their minority students into special education.

(13)(A) As the number of minority students in special education increases, the number of minority teachers and related

services personnel produced in colleges and universities continues to decrease.(B) The opportunity for full participation by minority individuals, minority organizations, and Historically Black

Colleges and Universities in awards for grants and contracts, boards of organizations receiving assistance under this title[20 USCS 1400 et seq.], peer review panels, and training of professionals in the area of special education is essentialto obtain greater success in the education of minority children with disabilities.

(14) As the graduation rates for children with disabilities continue to climb, providing effective transition services topromote successful post-school employment or education is an important measure of accountability for children withdisabilities.

(d) Purposes. The purposes of this title [20 USCS 1400 et seq.] are--(1) (A) to ensure that all children with disabilities have available to them a free appropriate public education that

emphasizes special education and related services designed to meet their unique needs and prepare them for furthereducation, employment, and independent living;

(B) to ensure that the rights of children with disabilities and parents of such children are protected; and(C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all

children with disabilities;(2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency

system of early intervention services for infants and toddlers with disabilities and their families;(3) to ensure that educators and parents have the necessary tools to improve educational results for children with

disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinatedtechnical assistance, dissemination, and support; and technology development and media services; and

(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities.

HISTORY:(April 13, 1970, P.L. 91-230, Title VI, Part A, 601, as added Dec. 3, 2004, P.L. 108-446, Title I, 101, 118 Stat.

2647.)(As amended Oct. 5, 2010, P.L. 111-256, 2(b)(1), 124 Stat. 2643.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

References in text:The "Elementary and Secondary Education Act of 1965", referred to in this section, is Act April 11, 1965, P.L. 89-10,

which appears generally as 20 USCS 6301 et seq. For full classification of such Act, consult USCS Tables volumes.

Explanatory notes:Subsection (b), which has been omitted, contains a table of contents for Title VI of Act April 13, 1970, P.L. 91-230.A prior 1400 (Act April 13, 1970, P.L. 91-230, Title VI, Part A, 601, as added June 4, 1997, P.L. 105-17, Title I,

Page 320 USCS 1400

101, 111 Stat. 37) was replaced in the general revision of Title VI of Act April 13, 1970, P.L. 91-230, by Act Dec. 3,2004, P.L. 108-446, Title I, 101, 118 Stat. 2647 (effective July 1, 2005, pursuant to 302(a) of Act Dec. 3, 2004, P.L.108-446, which appears as 20 USCS 1400 note). Such section contained a short title and set out congressional findingsand purposes.

Another prior 1400 (Act April 13, 1970, P.L. 91-230, Title VI, Part A, 601, 84 Stat. 175; Nov. 29, 1975, P.L.94-142, 3(a), 89 Stat. 774; Oct. 30, 1990. P.L. 101-476, Title IX, 901(a)(1), (b)(1)-(9), 104 Stat. 1141, 1142; Oct. 7,1991, P.L. 102-119, 25(b), 105 Stat. 607) was replaced in the general amendment of Title VI of Act April 13, 1970,P.L. 91-230, by Act June 4, 1997, P.L. 105-17, Title I, 101, 111 Stat. 37. Such section contained a short title and setout congressional findings and purposes.

Effective date of section:This section took effect on July 1, 2005, pursuant to 302(a) of Act Dec. 3, 2004, P.L. 108-446, which appears as a

note to this section.

Amendments:

2010. Act Oct. 5, 2010, in subsec. (c)(12)(C), substituted "intellectual disabilities" for "mental retardation".

Short titles:Act Aug. 21, 1974, P.L. 93-380, Title VI, Part B, 611, 88 Stat. 579, provides: "This title may be cited as the

'Education of the Handicapped Amendments of 1974'.". For full classification of such Title, consult USCS Tablesvolumes.

Act Nov. 29, 1975, P.L. 94-142, 1, 89 Stat. 773, provided "This Act may be cited as the 'Education for AllHandicapped Children Act of 1975'.". For full classification of such Act, consult USCS Tables volumes.

Act June 17, 1977, P.L. 95-49, 1, 91 Stat. 230, provided "This Act may be cited as the 'Education of theHandicapped Amendments of 1977'.". For full classification of such Act, consult USCS Tables volumes.

Act Dec. 2, 1983, P.L. 98-199, 1, 97 Stat. 1357, (effective upon enactment on Dec. 2, 1983, except as provided by 18(b) of such Act, which appears as 20 USCS 1401 note), provides: "This Act [generally amending 20 USCS 1401et seq.; for full classification, consult USCS Tables volume] may be cited as the 'Education of the Handicapped ActAmendments of 1983'.".

Act Aug. 5, 1986, P.L. 99-372, 1, 100 Stat. 796, provides: "This Act may be cited as the 'Handicapped Children'sProtection Act of 1986'.". For full classification of such Act, consult USCS Tables volumes.

Act Oct. 8, 1986, P.L. 99-457, 1(a), 100 Stat. 1145, provides: "This Act may be cited as the 'Education of theHandicapped Act Amendments of 1986'.".

Act Nov. 7, 1988, P.L. 100-630, 1, 102 Stat. 3289, provides: "This Act may be cited as the 'Handicapped ProgramsTechnical Amendments Act of 1988'.".

Act Oct. 30, 1990. P.L. 101-476, 1, 104 Stat. 1103, provides: "This Act may be cited as the 'Education of theHandicapped Act Amendments of 1990'.". For full classification of such Act, consult USCS Tables volumes.

Act Oct. 7, 1991, P.L. 102-119, 1, 105 Stat. 587, provides: "This Act may be cited as the 'Individuals withDisabilities Education Act Amendments of 1991'.". For full classification of such Act, consult USCS Tables volumes.

Act June 4, 1997, P.L. 105-17, 1, 111 Stat. 37, provides: "This Act [generally amending 20 USCS 1400 et seq.;for full classification, consult USCS Tables volume] may be cited as the 'Individuals with Disabilities Education ActAmendments of 1997'.".

Act Dec. 3, 2004, P.L. 108-446, 1, 118 Stat. 2647, provides: "This Act [generally amending 20 USCS 1400 et

Page 420 USCS 1400

seq.; for full classification, consult USCS Tables volumes] may be cited as the 'Individuals With Disabilities EducationImprovement Act of 2004'.".

Act Oct. 5, 2010, P.L. 111-256, 1, 124 Stat. 2643, provides: "This Act may be cited as 'Rosa's Law'.". For fullclassification of such Act, consult USCS Tables volumes.

Other provisions:Substitution of "Individuals with Disabilities Education Act" for "Education of the Handicapped Act". Act

Oct. 30, 1990, P.L. 101-476, Title IX, 901(a)(2), (3), 104 Stat. 1142 (effective 10/1/90, as provided by 1001 of suchAct, which appears as 20 USCS 238 note), provided:

"(2) The following Acts are each amended by striking 'Education of the Handicapped Act' each place it occurs andinserting in lieu thereof 'Individuals with Disabilities Education Act': Carl D. Perkins Vocational Education and AppliedTechnology Act; Comprehensive Alcohol Abuse, Drug Abuse, and Mental Health Amendments Act of 1988;Department of Education Organization Act; Developmental Disabilities Assistance and Bill of Rights Act Amendmentsof 1987; Education for All Handicapped Children Act of 1975; Education of the Deaf Act of 1986; Elementary andSecondary Education Act of 1965; Medicare Catastrophic Coverage Act of 1988; Omnibus Trade and CompetitivenessAct of 1988; Rehabilitation, Comprehensive Services and Developmental Disabilities Amendments of 1978; andTechnology-Related Assistance for Individuals With Disabilities Act of 1988.

"(3) Any other Act and any regulation which refers to the Education of the Handicapped Act shall be considered torefer to the Individuals with Disabilities Education Act.".

Effective dates of Parts A and B of Title VI of Act April 13, 1970, as amended June 4, 1997. Act June 4, 1997,P.L. 105-17, Title II, 201(a), 111 Stat. 156, provides:

"(1) In general. Except as provided in paragraph (2), parts A and B of the Individuals with Disabilities Education Act[20 USCS 1400 et seq., 1411 et seq.], as amended by title I, shall take effect upon the enactment of this Act.

"(2) Exceptions.(A) In general. Sections 612(a)(4), 612(a)(14), 612(a)(16), 614(d) (except for paragraph (6)), and 618 of the

Individuals with Disabilities Education Act [20 USCS 1412(a)(4), (14), (16), 1414(d) (except for para. (6)), and1418], as amended by title I, shall take effect on July 1, 1998.

"(B) Section 617. Section 617 of the Individuals with Disabilities Education Act [20 USCS 1417], as amended bytitle I, shall take effect on October 1, 1997.

"(C) Individualized education programs and comprehensive system of personnel development. Section 618 of theIndividuals with Disabilities Education Act [20 USCS 1418], as in effect on the day before the date of the enactmentof this Act, and the provisions of parts A and B of the Individuals with Disabilities Education Act [20 USCS 1400 etseq., 1411 et seq.] relating to individualized education programs and the State's comprehensive system of personneldevelopment, as so in effect, shall remain in effect until July 1, 1998.

"(D) Sections 611 and 619. Sections 611 and 619 [20 USCS 1411, 1419], as amended by title I, shall take effectbeginning with funds appropriated for fiscal year 1998.".

Effective dates of Title VI of Act April 13, 1970, as amended Dec. 3, 2004. Act Dec. 3, 2004, P.L. 108-446, TitleIII, 302(a), (b), 118 Stat. 2803, provides:

"(a) Parts A, B, and C, and subpart 1 of part D.(1) In general. Except as provided in paragraph (2), parts A, B, and C, and subpart 1 of part D, of the Individuals

with Disabilities Education Act [20 USCS 1400 et seq., 1411 et seq., 1431, et seq., and 1451 et seq.], as amended bytitle I, shall take effect on July 1, 2005.

"(2) Highly qualified definition. Subparagraph (A), and subparagraphs (C) through (F), of section 602(10) of theIndividuals with Disabilities Education Act [20 USCS 1401(10)], as amended by title I, shall take effect on the date ofenactment of this Act for purposes of the Elementary and Secondary Education Act of 1965.

"(b) Subparts 2, 3, and 4 of part D. Subparts 2, 3, and 4 of part D of the Individuals with Disabilities Education Act[20 USCS 1461 et seq., 1471 et seq., and 1481 et seq.], as amended by title I, shall take effect on the date ofenactment of this Act.".

Page 520 USCS 1400

Individuals With Disabilities Education Improvement Act of 2004; transition. Act Dec. 3, 2004, P.L. 108-446,Title III, 303, 118 Stat. 2803, provides:

"(a) Orderly transition.(1) In general. The Secretary of Education (in this section referred to as 'the Secretary') shall take such steps as are

necessary to provide for the orderly transition from the Individuals with Disabilities Education Act [20 USCS 1400 etseq.], as such Act was in effect on the day preceding the date of enactment of this Act, to the Individuals withDisabilities Education Act [20 USCS 1400 et seq.] and part E of the Education Sciences Reform Act of 2002 [20USCS 9567 et seq.], as amended by this Act.

"(2) Limitation. The Secretary's authority in paragraph (1) shall terminate 1 year after the date of enactment of thisAct.

"(b) Multi-year awards. Notwithstanding any other provision of law, the Secretary may use funds appropriated underpart D of the Individuals with Disabilities Education Act [20 USCS 1450 et seq.] to make continuation awards forprojects that were funded under section 618, and part D, of the Individuals with Disabilities Education Act [20 USCS 1418 and 1451 et seq.] (as such section and part were in effect on September 30, 2004), in accordance with the terms ofthe original awards.

"(c) Research. Notwithstanding section 302(b) [note to this section] or any other provision of law, the Secretary mayaward funds that are appropriated under the Department of Education Appropriations Act, 2005 for special educationresearch under either of the headings 'Special Education' or 'Institute of Education Sciences' in accordance with sections672 and 674 of the Individuals with Disabilities Education Act [20 USCS 1472 and 1474], as such sections were ineffect on October 1, 2004.".

References to intellectual disabilities. Act Oct. 5, 2010, P.L. 111-256, 2(k), 124 Stat. 2644, provides:"References. For purposes of each provision amended by this section [for full classification, consult USCS Tables

volumes]--"(1) a reference to 'an intellectual disability' shall mean a condition previously referred to as 'mental retardation', or a

variation of this term, and shall have the same meaning with respect to programs, or qualifications for programs, forindividuals with such a condition; and

"(2) a reference to individuals with intellectual disabilities shall mean individuals who were previously referred to asindividuals who are 'individuals with mental retardation' or 'the mentally retarded', or variations of those terms.".

Rosa's Law; regulations. Act Oct. 5, 2010, P.L. 111-256, 3, 124 Stat. 2645, provides:"For purposes of regulations issued to carry out a provision amended by this Act [for full classification, consult USCS

Tables volumes]--"(1) before the regulations are amended to carry out this Act--

"(A) a reference in the regulations to mental retardation shall be considered to be a reference to an intellectualdisability; and

"(B) a reference in the regulations to the mentally retarded, or individuals who are mentally retarded, shall beconsidered to be a reference to individuals with intellectual disabilities; and

"(2) in amending the regulations to carry out this Act, a Federal agency shall ensure that the regulations clearlystate--

"(A) that an intellectual disability was formerly termed mental retardation; and"(B) that individuals with intellectual disabilities were formerly termed individuals who are mentally retarded.".

Rosa's Law; construction. Act Oct. 5, 2010, P.L. 111-256, 4, 124 Stat. 2645, provides:"This Act shall be construed to make amendments to provisions of Federal law to substitute the term "an intellectual

disability" for "mental retardation", and "individuals with intellectual disabilities" for "the mentally retarded" or"individuals who are mentally retarded", without any intent to--

"(1) change the coverage, eligibility, rights, responsibilities, or definitions referred to in the amended provisions; or"(2) compel States to change terminology in State laws for individuals covered by a provision amended by this Act

[for full classification, consult USCS Tables volumes].".

NOTES:

Page 620 USCS 1400

Code of Federal Regulations:Office of the Secretary of Defense--Provision of early intervention and special education services to eligible DoD

dependents in overseas areas, 32 CFR 57.1 et seq.Office of the Secretary of Defense--Provision of early intervention services to eligible infants and toddlers with

disabilities and their families, and special education children with disabilities within the Section 6 school arrangements,32 CFR 80.1 et seq.

Research Guide:

Federal Procedure:10 Moore's Federal Practice (Matthew Bender 3d ed.), ch 54, Judgment; Costs 54.172.13 Moore's Federal Practice (Matthew Bender 3d ed.), ch 68, Offer of Judgment 68.02.17A Moore's Federal Practice (Matthew Bender 3d ed.), ch 123, Access to Courts: Eleventh Amendment and State

Sovereign Immunity 123.42.18 Moore's Federal Practice (Matthew Bender 3d ed.), ch 133, Intersystem Preclusion 133.42.19 Moore's Federal Practice (Matthew Bender 3d ed.), ch 205, Reviewability of Issues 205.02.2 Civil Rights Actions (Matthew Bender), ch 7, Deprivation of Rights Under Color of State Law--General Principles

(Civil Rights Act of 1871, 42 U.S.C. 1983) P 7.06.3 Civil Rights Actions (Matthew Bender), ch 17, Discrimination in Federally Assisted Programs PP 17.01, 17.33,

17.39, 17.41.5 Civil Rights Actions (Matthew Bender), ch 22A, Rights of Americans with Disabilities (Americans with Disabilities

Act of 1990, as amended through 1991, 42 U.S.C. 12101-12213) P 22A.01.6 Administrative Law (Matthew Bender), ch 54, Grant Dispute Resolution Procedures of Particular Agencies 54.04.6 Fed Proc L Ed, Civil Rights 11:86, 286.17A Fed Proc L Ed, Health, Education, and Welfare 42:1529.

Am Jur:15A Am Jur 2d, Colleges and Universities 37.45A Am Jur 2d, Job Discrimination 168-213.52 Am Jur 2d, Mandamus 235.67B Am Jur 2d, Schools 258, 299, 372, 384, 399.68 Am Jur 2d, Schools 460.

Am Jur Proof of Facts:93 Am Jur Proof of Facts 3d, Parents' or Student's Proof in Action for Educational Services or Tuition Reimbursement

Under the Special Education Laws, p. 1.99 Am Jur Proof of Facts 3d, School District's Proof that Services Offered to Student with Disabilities Met Statutory

Standards, p. 237.108 Am Jur Proof of Facts 3d, Proof of Public School District Liability for Injuries or Damages to Student Resulting

from Harassment of Student by Teacher or Other District Staff Member, p. 1.

Forms:5 Fed Procedural Forms L Ed, Civil Rights (2006) 10:266, 268-281, 284, 286, 288, 291-294, 296, 297.

Page 720 USCS 1400

10B Fed Procedural Forms L Ed, Health, Education, and Welfare (2006) 37:59.22 Am Jur Pl & Pr Forms (Rev ed), Schools 136, 137, 161-167.

Labor and Employment:6 Larson on Employment Discrimination, ch 102, Section 1983 102.08.7 Labor and Employment Law (Matthew Bender), ch 171, Special Rules for Teachers and Local Educational

Agencies 171.01.

Annotations:Supreme Court's views as to awards of attorneys' fees in federal civil rights cases. 87 L Ed 2d 713.Construction and Application of Individuals with Disabilities Education Act, 20 U.S.C.A. 1400 et seq. [20 USCS

1400 et seq.]--Supreme Court Cases. 13 ALR Fed 2d 321.Rights of Parents to Proceed Pro Se in Actions Under Individuals with Disabilities Education Act. 16 ALR Fed 2d

467.Statute of Limitations Applicable to, and Accrual of, Actions for Attorney's Fees Brought Under Individuals with

Disabilities Education Act, 615(i)(3)(B), as amended, 20 U.S.C.A. 1415(i)(3)(B) [20 USCS 1415(i)(3)(B)]. 23ALR Fed 2d 553.

Jurisdiction of Court to Award Attorney's Fees as Part of Costs Under Individuals with Disabilities Education Act, 20U.S.C.A. 1415(i)(3)(B) [20 USCS 1415(i)(3)(B)]. 27 ALR Fed 2d 341.

Construction and effect of 504 of the Rehabilitation Act of 1973 (29 USCS 794) prohibiting discrimination againstotherwise qualified handicapped individuals in specified programs or activities. 44 ALR Fed 148.

Actions, under 42 USCS 1983, for violations of federal statutes pertaining to rights of handicapped persons. 63 ALRFed 215.

Availability of Damages in Action to Remedy Violations of Individuals with Disabilities Education Act (20 U.S.C.A. 1400 et seq. [20 USCS 1400 et seq.]). 165 ALR Fed 463.

Effect of Appointment of Legal Representative for Person Under Mental Disability or Running of State Statute ofLimitations Against Such Person. 111 ALR5th 159.

Special Education Requirements of Gifted Students. 115 ALR5th 183.

Texts:Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 22, Government Services for Indians 22.03.1 Rapp, Education Law (Matthew Bender), ch 3, Governing Agencies, Boards, Officers and Authorities 3.01, 3.09.1 Rapp, Education Law (Matthew Bender), ch 5, Funding, Support and Finances of Education 5.01.3 Rapp, Education Law (Matthew Bender), ch 8, The Student-Educational Institution Relationship 8.02, 8.07.3 Rapp, Education Law (Matthew Bender), ch 9, Student Safety, Control and Discipline 9.10.4 Rapp, Education Law (Matthew Bender), ch 10, Educational Opportunities and Equality 10.01, 10.15,

10.18-10.20, 10.26, 10.27.5 Rapp, Education Law (Matthew Bender), ch 12, General Liabilities and Litigation 12.03.5 Rapp, Education Law (Matthew Bender), ch 13, Education Records Management and Retention 13.04.

Law Review Articles:Stark. Tragic Choices in Special Education: The Effect of Scarce Resources on the Implementation of Pub. L. No.

94-142. 14 Connecticut L Rev 477, Spring, 1982.

Page 820 USCS 1400

Nelson. Siegel, Corporal punishment and handicapped children. 64 Fla B J 43, 1990.Jones. Educational Rights of Handicapped Children. 19 Harv J on Legis 287, Summer 1982.An autopsy of the Medicare Catastrophic Coverage Act of 1988. 18 N Ky L Rev 41, Fall 1990.Rothstein. Educational Rights of Severely and Profoundly Handicapped Children. 61 Neb L Rev 586, 1982.Bandes. The Idea of a Case. 42 Stan L Rev 227, January 1990.Shavers. Hurricane Katrina Symposium Article: Katrina's Children: Revealing the Broken Promise of Education. 31

T Marshall L Rev 499, Spring 2006.Sido; King. Monetary Remedies under the Education for All Handicapped Children Act: Toward a New Civil Rights

Act? 23 Tort & Ins L J 711, Summer 1988.

Interpretive Notes and Decisions:I.IN GENERAL .1. US Supreme Court Alerts 1. Generally 2. Relationship to other laws 3.--Rehabilitation Act 4.Purpose 5. Applicability 6. Free appropriate public education 7. Special education and related services 8. Miscellaneous

II.PRACTICE AND PROCEDURE 9. Parties 10.--Standing 11.--Immunity 12. Pendent state claims 13.Mootness 14. Statutes of limitations 15. Evidence 16. Summary judgment 17. Remedies orrelief 18.--Damages 19.--Injunctions and restraining orders 20. Attorney's fees and costs 21. Miscellaneous

I.IN GENERAL .1. US Supreme Court Alerts

US Supreme Court Case Alert--On January 16, 2009, Court granted petition for writ of certiorari to Ninth Circuiton question of whether Individuals with Disabilities Education Act (20 USCS 1400 et seq.) permitstuition-reimbursement award against school district and in favor of parents who unilaterally place their child in privateschool, where child allegedly has not previously received special education and related services under authority ofpublic agency. Forest Grove Sch. Dist. v T.A. (2008, CA9 Or) 523 F3d 1078, cert gr (US) 77 USLW 3412.

1. Generally

Requirement of Education for All Handicapped Children Act of 1975 (20 USCS 1401 et seq.) that state providespecialized educational services to handicapped children generates no additional requirement that services so providedbe sufficient to maximize each child's potential commensurate with opportunity provided other children, so as toachieve strict equality of opportunity or services; rather, Congress sought primarily to identify and evaluatehandicapped children, and to provide them with access to free public education. Board of Education v Rowley (1982)458 US 176, 73 L Ed 2d 690, 102 S Ct 3034, 1 ADD 85.

Individuals with Disabilities Education Act (IDEA) (20 USCS 1400 et seq.) (2) requires participating states toeducate handicapped children with nonhandicapped children whenever possible. Cedar Rapids Community Sch. Dist. vGarret F. by Charlene F. (1999) 526 US 66, 143 L Ed 2d 154, 119 S Ct 992, 6 ADD 6092, 99 CDOS 1582, 99 DailyJournal DAR 2029, 1999 Colo J C A R 1126, 12 FLW Fed S 129, 161 ALR Fed 683.

IDEA (20 USCS 1400 et seq.) is not satisfied by affording student de minimis educational benefit. M.C. ex rel.J.C. v Central Regional Sch. Dist. (1996, CA3 NJ) 81 F3d 389, 16 ADD 94, cert den (1996) 519 US 866, 117 S Ct 176,136 L Ed 2d 116 and (criticized in Reid ex rel. Reid v District of Columbia (2005, App DC) 365 US App DC 234, 401F3d 516).

Amendments to IDEA (20 USCS 1400-1487) passed by Congress on June 4, 1997, do not have retroactiveapplication with respect to cases pending on date of enactment. Tucker by & Through Tucker v Calloway County Bd. ofEduc. (1998, CA6 Ky) 136 F3d 495, 1998 FED App 57P, reh den (1998, CA6) 1998 US App LEXIS 31393.

Page 920 USCS 1400

Individuals with Disabilities Education Act, 20 USCS 1400 et seq. leaves intact state's authority to determinewho may make educational decisions on behalf of child, so long as state does so in manner consistent with federalstatutes. Taylor v Vt. Dep't of Educ. (2002, CA2 Vt) 313 F3d 768 (criticized in Selkridge v United of Omaha Life Ins.Co. (2004, CA3) 45 VI 712, 360 F3d 155, 32 EBC 1349).

In order for residential placement to be appropriate under Individuals with Disabilities Education Act, 20 USCS 1400-1487, placement must be 1) essential in order for disabled child to receive meaningful educational benefit, and 2)primarily oriented toward enabling child to obtain education; this test does not make reimbursement determinationcontingent on court's ability to conduct arguably impossible task of segregating child's medical, social, emotional, andeducational problems. Richardson Indep. Sch. Dist. v Michael Z (2009, CA5 Tex) 580 F3d 286.

Compensatory and punitive damages are not available remedy under Individuals with Disabilities Education Act,20 USCS 1400 et seq. Chambers v Sch. Dist. of Phila. Bd. of Educ. (2009, CA3 Pa) 587 F3d 176.

While Individuals with Disabilities in Education Act (IDEA), 20 USCS 1400 et seq., requires districts to provideappropriate education to disabled students, this is not necessarily synonymous with offering disabled students besteducational opportunities available; IDEA only requires that districts give disabled students basic floor of opportunitiesconsisting of access to specialized institutions and related services that are individually designed to provide educationalbenefits. Watson v Kingston City Sch. Dist. (2004, ND NY) 325 F Supp 2d 141, affd (2005, CA2 NY) 142 Fed Appx 9,cert den (2006, US) 126 S Ct 1040, 163 L Ed 2d 857.

Unpublished Opinions

Unpublished: Under Individuals with Disabilities Education Act, department of education was required to pay costsof child's temporary placement in private school; given child's needs, court agreed with trial court's findings and noteddepartment was unable to provide, as required by 20 USCS 1400(d)(1)(A), 1412(a)(1)(A), free, appropriate publiceducation. Zayas v Puerto Rico (2005, CA1 Puerto Rico) 2005 US App LEXIS 28323.

2. Relationship to other laws

Regulation requiring that handicapped children be afforded "equal opportunity for participation" in extracurricularservices and activities was invalid as in conflict with pronouncements of U.S. Supreme Court in Rowley that, underEducation for All Handicapped Children Act (20 USCS 1400 et seq.), requiring states to provide educationalopportunities to handicapped children that were "equal" to those provided to non-handicapped children would beunworkable and require impossible measurements and comparisons. Rettig v Kent City School Dist. (1986, CA6 Ohio)788 F2d 328, cert den (1986) 478 US 1005, 92 L Ed 2d 711, 106 S Ct 3297.

State educational agency, and not school district, was responsible for out-of-state private education of disabledchild under Individuals with Disabilities in Education Act, 20 USCS 1400 et seq., because under Mo. Rev. Stat. 160.735 state was not limited to contracting with in-state agencies in providing suitable education under IDEA, butunder Mo. Rev. Stat. 162.705(1) district was restricted to contracting with "any organization within state." Mo. Dep'tof Elem. & Secondary Educ. v Springfield R-12 (2004, CA8 Mo) 358 F3d 992.

Concerned parents are enjoined from any actions which interfere with or circumvent public school placement ofchild who tested positive HIV, is hemophiliac and has emotional disorders, despite state law regarding contagiousdiseases, because Education of Handicapped Act (20 USCS 1400 et seq.) procedures for placement of handicappedchildren in free, appropriate public education preempt state law. Parents of Child, Code No. 870901W v Coker (1987,ED Okla) 676 F Supp 1072.

Although Individuals with Disabilities Education Act (IDEA), 20 USCS 1400 et seq., did not provide for moneydamages, where plaintiffs sought compensatory and punitive damages under 42 USCS 1983 for deprivation ofstudent's rights under Fourteenth Amendment and IDEA, plaintiffs' complaint was not subject to dismissal. J.R. v

Page 1020 USCS 1400

Waterbury Bd. of Educ. (2001, DC Conn) 272 F Supp 2d 174.

Students that attended schools administered under Tribally Controlled Schools Act (TCSA), 25 USCS 2501 to2511, had standing to bring action against Bureau of Indian Affairs (BIA) and Department of Interior (DOI) fordeclaratory and compensatory relief because students' alleged injury was traceable to BIA and DOI, BIA and DOI hadobligation to assure that students received free appropriate public education and that obligation was not abrogated byTCSA, and students demonstrated that their injuries were redressable. Bitsilly v BIA (2003, DC NM) 253 F Supp 2d1257.

Significant jeopardy standard for determining when to provide Extended School Year services comports withIndividuals with Disabilities in Education Act. McQueen v Colo. Springs Sch. Dist. No. 11 (2006, DC Colo) 419 F Supp2d 1303.

Because IDEA and 504 of Rehabilitation Act of 1973, 29 USCS 794, both create express, private means ofredress, 42 USCS 1983 action is not available to remedy violations of rights created by those statutes. Travis G. v NewHope-Solebury Sch. Dist. (2008, ED Pa) 544 F Supp 2d 435.

Although state review officer's decision issued under N.Y. Educ. Law. 4404 is not binding precedent under N.Y.Comp. Codes R. & Regs. tit. 8, 279.12, it may be persuasive in 20 USCS 1400 suit. A.H. ex rel. J.H. v New YorkCity Dep't of Educ. (2009, ED NY) 652 F Supp 2d 297.

School's motion to dismiss student's claim under 42 USCS 1983 was granted because student did not allege anyunderlying pattern or policy of school or district to refuse to comply with hearing officer decisions or of continuedviolations of Individuals with Disabilities Education Act (IDEA), 20 USCS 1400 et seq. Shelton v Maya AngelouPub. Charter Sch. (2009, DC Dist Col) 656 F Supp 2d 82.

When parent alleged claims under Americans with Disabilities Act, 42 USCS 12101 et seq., Rehabilitation Act,29 USCS 701 et seq., and 42 USCS 1983, when seeking judicial review of hearing officer's decision underIndividual with Disabilities Education Act (IDEA), 20 USCS 1400 et seq., non-IDEA claims were dismissed because(1) precedent established that plaintiff could not use federal statute to evade IDEA's limited remedial structure, and (2)parent alleged no constitutional violation beyond violation of three statutes. Millay v Surry Sch. Dep't (2010, DC Me)707 F Supp 2d 56.

Unpublished Opinions

Unpublished: Because plaintiffs failed to allege denial of procedural safeguards or administrative remedies (theywere afforded hearing before impartial hearing officer and review by state review officer), plaintiffs could not rely on42 USCS 1983 to pursue monetary damages for violations of Individuals with Disabilities Education Act, 20 USCS 1400 et seq. Streck v Bd. of Educ. (2008, CA2 NY) 2008 US App LEXIS 11613.

Unpublished: Because Individualized Education Plan was created and implemented for plaintiff student, studentwas afforded access to existing program, and district court properly dismissed plaintiffs' Americans with DisabilitiesAct (ADA), 42 USCS 12101 et seq., and Rehabilitation Act claims; under ADA and Rehabilitation Act, demand forreasonable accommodations to assure access to existing program is cognizable, but demand for additional or differentsubstantive benefits is not. Streck v Bd. of Educ. (2008, CA2 NY) 2008 US App LEXIS 11613.

3.--Rehabilitation Act

In suit challenging school system's decision that child did not meet criteria to qualify as disabled student underIndividuals with Disabilities Education Act (IDEA), 20 USCS 1400 et seq., claims under Rehabilitation Act of 1973,29 USCS 791 et seq., were subject to dismissal if IDEA claims were dismissed. N.L. v Knox County Schs. (2003,CA6 Tenn) 315 F3d 688, 2003 FED App 22P, reh, en banc, den (2003, CA6) 2003 US App LEXIS 7422.

Page 1120 USCS 1400

Because school district's failure to provide free appropriate public education violates Individuals with DisabilitiesEducation Act, 20 USCS 1400 et seq., it could also violate 29 USCS 794 and/or 42 USCS 12132; therefore,district court erred by dismissing claim by parents of cognitively disabled child that school district's failure to providetheir child with free and appropriate education concurrently violated two Acts. Chambers v Sch. Dist. of Phila. Bd. ofEduc. (2009, CA3 Pa) 587 F3d 176.

Handicapped Act (20 USCS 1401 et seq.) does not supersede 504 of Rehabilitation Act (29 USCS 794).Georgia Asso. of Retarded Citizens v McDaniel (1981, ND Ga) 511 F Supp 1263, affd (1983, CA11 Ga) 716 F2d 1565,37 FR Serv 2d 1038, reh den (1983, CA11 Ga) 721 F2d 822 and vacated without op, remanded (1984) 468 US 1213, 82L Ed 2d 880, 104 S Ct 3581; Georgia Ass'n of Retarded Citizens v McDaniel (1983, CA11 Ga) 716 F2d 1565, 37 FRServ 2d 1038, reh den (1983, CA11 Ga) 721 F2d 822 and vacated without op, remanded (1984) 468 US 1213, 82 L Ed2d 880, 104 S Ct 3581.

Where public school district created accommodation plan under 504 of Rehabilitation Act of 1973, 29 USCS 794, which considered child's disabilities and included classroom aide, use of non-verbal signals, recessaccommodations, preferential seating, and modifying school bells, but the child's parents rejected plan and unilaterallyenrolled the child in private school, court found that accommodation plan provided significant learning and conferredmeaningful benefit under Individuals with Disabilities Education Act, 20 USCS 1400 et seq.; thus, the parents didnot receive reimbursement for private school tuition. Molly L. v Lower Merion Sch. Dist. (2002, ED Pa) 194 F Supp 2d422.

Motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss 29 USCS 794(a) claim was denied because sufficient factswere alleged that District of Columbia departed grossly from accepted Child Find practice and standards underIndividuals with Disabilities and Education Act, 20 USCS 1400 et seq., where it was alleged that even after favorabledetermination by hearing officer, school system did not bring itself into compliance, and it was alleged that studyshowed that District of Columbia was ranked last in provision of special education services to preschool children. Dl vD.C. (2006, DC Dist Col) 450 F Supp 2d 21, judgment entered (2006, DC Dist Col) 450 F Supp 2d 21.

In action that quadriplegic commenced pursuant to Title I of Rehabilitation Act of 1973, 29 USCS 720 et seq., toobtain review of determination of New York State Office of Vocational and Educational Services for Individuals withDisabilities denying quadriplegic's request for continued ambulette services, court applied same standards of reviewapplicable under Individuals with Disabilities Education Act, 20 USCS 1400 et seq.; accordingly, court gave dueweight to administrative proceedings and reviewed questions of law de novo. Carrigan v N.Y. State Educ. Dep't (2007,ND NY) 485 F Supp 2d 131, corrected (2007, ND NY) 2007 US Dist LEXIS 42481.

In case in which mother sued District of Columbia seeking declaration that school district discriminated against herchild, in violation of 504 of Rehabilitation Act, 29 USCS 794, and requesting relief under Individuals withDisabilities Education Improvement Act (IDEA), 20 USCS 1400 et seq., and District of Columbia filed Fed. R. Civ.P. 12(b)(6) motion to dismiss 504 claim, contours of free appropriate public education under IDEA and 504 werenot same; 504 was attuned to programmatic failures while IDEA was focused on individual student who neededspecial education; mother's allegations that school district did not conduct and review comprehensive psychologicalevaluation of her child before date certain and that it did not respond to her request or conduct any of requestedevaluations before date certain did not support allegation of any programmatic failure nor did they support allegationthat school district discriminated against child solely because of his disability or allegation that school district acted inbad faith or with gross misjudgment. Torrence v District of Columbia (2009, DC Dist Col) 669 F Supp 2d 68.

In case brought under Individuals with Disabilities Act, 20 USCS 1400 et seq., and 504 of Rehabilitation Act,29 USCS 794, in which mother alleged that her daughter had not been provided with free appropriate publiceducation, she failed to state claim under 504 because her facts did not support allegation that District of ColumbiaPublic Schools acted in bad faith or with gross misjudgment, which was required to show violation of 504; while shealso asserted that DCPS had created and adhered to policy, custom or practice of refusing timely to authorize funding of

Page 1220 USCS 1400

evaluations of special education students in District of Columbia, including her daughter, and that policy, custom, orpractice was evidence of bad faith and gross misjudgment, complaint was devoid of any facts from which court couldinfer such policy, custom, or practice. Lucas v District of Columbia (2010, DC Dist Col) 683 F Supp 2d 16.

In case brought under Individuals with Disabilities Act, 20 USCS 1400 et seq., and 504 of Rehabilitation Act,29 USCS 794, in which mother alleged that her son had not been provided with free appropriate public education, shefailed to state claim under 504 because her facts did not support allegation that District of Columbia Public Schoolsacted in bad faith or with gross misjudgment, which was required to show violation of 504; while she also assertedthat DCPS had created and adhered to policy, custom or practice of refusing timely to authorize funding of evaluationsof special education students in District of Columbia, including her son, and that policy, custom, or practice wasevidence of bad faith and gross misjudgment, complaint was devoid of any facts from which court could infer suchpolicy, custom, or practice. Taylor v District of Columbia (2010, DC Dist Col) 683 F Supp 2d 20.

Student's rights under IDEA (20 USCS 1400 et seq.) and Rehabilitation Act (29 USCS 794) are not equivalentdue to statutory differences. M.H. v Montana High Sch. Ass'n (1996) 280 Mont 123, 929 P2d 239, 20 ADD 300.

Unpublished Opinions

Unpublished: Res judicata barred student's action against school arising under 504 of Rehabilitation Act becauseinstant case and prior case brought by student under Individuals with Disabilities Education Act involved same cause ofaction as both cases involved student's same primary right to receive proper education, school's same duty to provideproper education, and same nucleus of operative facts. Draper v Atlanta Indep. Sch. Sys. (2010, CA11 Ga) 2010 US AppLEXIS 9255.

4. Purpose

Individuals with Disabilities Education Act (IDEA) (20 USCS 1400 et seq.) is intended to open door of publiceducation to all qualified children. Cedar Rapids Community Sch. Dist. v Garret F. by Charlene F. (1999) 526 US 66,143 L Ed 2d 154, 119 S Ct 992, 6 ADD 6092, 99 CDOS 1582, 99 Daily Journal DAR 2029, 1999 Colo J C A R 1126, 12FLW Fed S 129, 161 ALR Fed 683.

Under 20 USCS 1412(a)(1)(A), when it accepted Individuals with Disabilities Education Act funding, petitionerschool district agreed to provide free appropriate public education (FAPE) to all children with disabilities and orderawarding reimbursement of private-education costs for failure to provide FAPE merely required district to belatedly payexpenses that it should have paid all along, thus, such order was in accord with general remedial purpose underlying Actas set forth in 20 USCS 1400(d)(1)(A), 1997 Amendments to Act, and "child find" provision of 1412(a)(3)(A); 20USCS 1412(a)(10)(C), 1415(i)(2)(C)(iii), did not establish categorical bar to tuition reimbursement for respondentstudent who had not previously received special-education services under authority of school district. Forest Grove Sch.Dist. v T. A. (2009, US) 129 S Ct 2484, 174 L Ed 2d 168, 21 FLW Fed S 983.

Congressional purpose in adopting Education for All Handicapped Children Act (20 USCS 1400 et seq.) is toremedy condition of handicapped children who are not receiving education appropriate to their needs, and to that end,Congress provided federal funding to state and local school systems for purposes of special education and conditionedgrant of funds on compliance with federal standards. Dubois v Connecticut State Bd. of Education (1984, CA2 Conn)727 F2d 44.

Central purpose of IDEA (20 USCS 1400 et seq.), under former 20 USCS 1400(b)(9), was to secure specialeducational entitlements to eligible recipients. Murphy v Timberlane Regional Sch. Dist. (1994, CA1 NH) 22 F3d 1186,5 ADD 5, cert den (1994) 513 US 987, 130 L Ed 2d 396, 115 S Ct 484 and (criticized in Powers v Indiana Dep't ofEduc., Div. of Special Educ. (1995, CA7 Ind) 61 F3d 552, 12 ADD 417) and (criticized in S.V. v Sherwood Sch. Dist.(2001, CA9 Or) 254 F3d 877, 2001 CDOS 5358, 2001 Daily Journal DAR 6587).

Page 1320 USCS 1400

Congress enacted Individuals with Disabilities Education Act, 20 USCS 1400 et seq., with clear intention ofdeferring to local school authorities for development of educational plans for disabled children. Weast v Schaffer (2004,CA4 Md) 377 F3d 449, affd (2005, US) 126 S Ct 528, 163 L Ed 2d 387.

Primary purpose of Individuals with Disabilities Education Act, 20 USCS 1400 et seq., is to ensure freeappropriate public education, not to serve as tort-like mechanism for compensating personal injury. Ortega v BibbCounty Sch. Dist. (2005, CA11 Ga) 397 F3d 1321, 18 FLW Fed C 196.

District court properly admitted but accorded no weight to additional evidence submitted by parents who soughtreimbursement of private school tuition and expenses for their son's eighth grade year under 20 USCS 1415(i)(2)(C)(ii) because 10 years of litigation disserved purpose of 20 USCS 1400(d), which was to include disabledstudents in public education system as quickly as possible. Schaffer v Weast (2009, CA4 Md) 554 F3d 470.

Disabled children were not entitled to injunction enforcing Individuals with Disabilities Education Act's stay-putprovision of 20 USCS 1415(j) during period of Friday furloughs because their educational setting was not changed byfurloughs; in light of Act's mainstreaming purpose, stated in 20 USCS 1400, provision was not intended to apply tosystem-wide changes that affected both disabled and nondisabled children alike. N. D. v State Dep't of Educ. (2010,CA9 Hawaii) 600 F3d 1104.

Purpose of IDEA (20 USCS 1400 et seq.) is to open door of public education to children with disabilities, not toeducate child with disability to his or her highest potential. MR by R.R. v Lincolnwood Bd. of Educ. (1994, ND Ill) 843F Supp 1236, 4 ADD 195, affd without op sub nom Rheinstrom by Rheinstrom v Lincolnwood Bd. of Educ. Dist. 74(1995, CA7 Ill) 56 F3d 67, reported in full (1995, CA7 Ill) 1995 US App LEXIS 10781, reh, en banc, den (1995, CA7Ill) 1995 US App LEXIS 13700.

As set forth in 20 USCS 1400(c), Individuals with Disabilities Education Act (IDEA), 20 USCS 1400 et seq.,was enacted to assure that all children with disabilities have available to them free appropriate public education. Smith vIsle of Wight County Sch. Bd. (2003, ED Va) 284 F Supp 2d 370, affd in part and revd in part, remanded (2005, CA4Va) 402 F3d 468.

20 USCS 1400(c)(4) and (5), parts of Individuals with Disabilities Education Act (IDEA), 20 USCS 1400 etseq., show that Congress did not enact IDEA for purpose of meeting minimum level of service. J.P. v County Sch. Bd.(2006, ED Va) 447 F Supp 2d 553.

5. Applicability

IDEA (20 USCS 1400 et seq.) does not give disabled student right to placement in his neighborhood school.Urban by Urban v Jefferson County Sch. Dist. R-1 (1996, CA10 Colo) 89 F3d 720, 17 ADD 854, 5 AD Cas 1135(superseded by statute on other grounds as stated in N.L. v Knox County Schs. (2003, CA6 Tenn) 315 F3d 688, 2003FED App 22P).

IDEA (20 USCS 1400-1485) does not require that educational agencies test all children for whom evaluationsare requested. Pasatiempo by Pasatiempo v Aizawa (1996, CA9 Hawaii) 103 F3d 796, 19 ADD 826, 96 CDOS 9216, 96Daily Journal DAR 15203.

Although IDEA (20 USCS 1400 et seq.) grants parents ample procedural rights to ensure active parentalinvolvement at all stages of development and implementation of child's IEP, even through administrative process, IDEAdoes not confer on parents same underlying substantive rights that their children possess. Collinsgru v Palmyra Bd. ofEduc. (1998, CA3 NJ) 161 F3d 225 (criticized in Maroni v Pemi-Baker Reg'l Sch. Dist. (2003, CA1 NH) 346 F3d 247).

IDEA (20 USCS 1400 et seq.) contains no provision protecting educational rights of gifted students. Brad J. byCharles J. v Pennsylvania, Dep't of Educ. (1995, ED Pa) 10 ADD 176.

Page 1420 USCS 1400

IDEA (20 USCS 1400 et seq.) did not provide relief against teacher who used facilitative communicator devicewith 4 year-old child, although its use was not incorporated in child's IEP, and by guiding child's hand produceddocuments which teacher used to fraudulently charge parents with child abuse, since IDEA was not intended to provideprocedural or substantive protection against such atrocity. Morris v Dearborne (1999, ED Tex) 69 F Supp 2d 868.

Disabled student could not assert claim that university violated Individuals with Disabilities in Education Act bynot providing adequate handicapped parking near mail facility in which student's group maintained mailbox becausestatute did not apply to adults. Brownscombe v Dep't of Campus Parking (2002, DC Md) 203 F Supp 2d 479.

Mother's request that regular school bus driver deliver her learning disabled child to adult was not covered byIndividuals with Disabilities Education Act, 20 USCS 1400-1487, and state's education laws as it did not addresschild's educational needs. S. v Scarborough Sch. Comm. (2005, DC Me) 366 F Supp 2d 98.

Because parents were requesting relief that was unavailable through Individuals with Disabilities Education Act(IDEA), 20 USCS 1400 et seq., administrative process, IDEA eligibility was not at issue, and relevant factual recordcould be adequately developed through standard discovery procedures; thus, parents' failure to exhaust under 20 USCS 1415(l) did not subject their claims to dismissal. Vicky M. v Northeastern Educ. Intermediate Unit 19 (2007, MD Pa)486 F Supp 2d 437.

6. Free appropriate public education

U.S. Supreme Court affirmed, by equally divided court (with one Justice not participating), Court of Appeals'judgment in case involving question whether Court of Appeals' decision--assertedly to effect that Individuals withDisabilities Education Act (IDEA) (20 USCS 1400 et seq.) permitted tuition reimbursement to parent of student atprivate school--contradicted plain language of IDEA provision (20 USCS 1412(a)(10)(C)(ii)), which authorizedtuition reimbursement to parents of child with disability "who previously received special education and related servicesunder authority of public agency." Bd. of Educ. v Tom F. ex rel. Gilbert F. (2007, US) 128 S Ct 1, 169 L Ed 2d 1, 21FLW Fed S 1.

Procedural defects alone do not constitute violation of right to free appropriate public education unless they resultin loss of educational opportunity. Adam J. v Keller Indep. Sch. Dist. (2003, CA5 Tex) 328 F3d 804.

In case brought by disabled student under Individuals with Disabilities in Education Act (IDEA), 20 USCS 1400et seq., court upheld district court's affirmance of administrative law judge's (ALJ's) finding that, with exception ofclaim of inadequate math instruction, school district did not violate student's or his parents' rights under IDEA becauseits failure to implement each provision of student's individualized education program (IEP), which was developed under20 USCS 1414, was not material as services provided did not fall significantly short of those required by IEP; thus,student was not deprived of free appropriate public education as required under 20 USCS 1401(9); however, to extentthat student's mother did not act as his attorney, he was entitled to recover attorney's fees with respect to math claimunder 20 USCS 1415 as he was prevailing party on that claim before ALJ. Van Duyn v Baker Sch. Dist. 5J (2007, CA9Or) 481 F3d 770.

Public school district did not deprive student of free appropriate public education, in violation of its duties under 20USCS 1400(d)(1)(A), 1401(14) merely because student failed to meet behavioral goals set out in individualizededucation program (IEP) developed for her pursuant to 20 USCS 1414(d) where (1) student's primary disability wasbehavioral disorder, which caused her to repeatedly attack her fellow students and school district staff; (2) student'syear-end progress report stated that she had made adequate progress on her academic goals and that she madebehavioral progress after she was transferred to different school; and (3) given nature of student's disability, district didnot violate IDEA merely because student did not meet her behavioral goals set out in her IEP. M.M. v Special Sch. Dist.No. 1 (2008, CA8 Minn) 512 F3d 455.

Because defendant student's interaction with others in regular classroom was significantly limited even under

Page 1520 USCS 1400

individualized education plan's proposals to deal with hearing impairments, she had insufficient supplemental servicesfrom plaintiff school district to meet her unique needs under 29 USCS 1400 and to be successful, and while student'sregular education placement was certainly less restrictive environment under 20 USCS 1415(a)(5)(A) than her privateschool placement, there still had to be appropriate education under 1415(a)(5)(A). Houston Indep. Sch. Dist. v VP(2009, CA5 Tex) 566 F3d 459.

There is no plausible way to read definition of "transition services" as changing free appropriate public educationstandard. J. L. v Mercer Island Sch. Dist. (2009, CA9 Wash) 575 F3d 1025.

Proper standard to determine whether disabled child has received free appropriate public education is "educationalbenefit" standard set forth by U.S. Supreme Court in Rowley. J. L. v Mercer Island Sch. Dist. (2009, CA9 Wash) 575F3d 1025.

Some confusion exists in Ninth Circuit regarding whether Individuals with Disabilities Education Act, 20 USCS 1400-1491, requires school districts to provide disabled students with "educational benefit," "some educational benefit"or "meaningful" educational benefit; all three phrases refer to same standard. School districts must, to make such accessmeaningful, confer at least some educational benefit on disabled students. J. L. v Mercer Island Sch. Dist. (2009, CA9Wash) 575 F3d 1025.

While plaintiff child argued defendant school district offered no mainstream public classes for preschool childrenand that, thus, it was required to begin with presumption that it would place him in only mainstream placementavailable--private preschool for typically developing children--and remove him from private setting only if privateplacement could not provide satisfactory education, argument failed because as evidenced by 20 USCS 1400(c)(2)(B),removal to private school placement was exception, not default. R.H. v Plano Indep. Sch. Dist. (2010, CA5 Tex) 607F3d 1003.

Under 20 USCS 1400(c), free appropriate public education described in individualized educational program neednot be best possible one, nor one that will maximize child's educational potential, but, rather, it need only be educationspecifically designed to meet child's unique needs, supported by services that will permit child to benefit frominstruction. Sylvie M. v Board of Educ. (1999, WD Tex) 48 F Supp 2d 681, affd (2000, CA5 Tex) 214 F3d 1351, certden (2000) 531 US 879, 148 L Ed 2d 131, 121 S Ct 190.

Free appropriate public education to which disabled child is entitled under 20 USCS 1400(d), although notrequiring school to maximize child's potential, does require that child receive access to specialized instruction andrelated services that are individually designed to provide educational benefit, and that educational placement be likely toproduce progress, not regression or trivial educational advance. Board of Educ. v Hunter (2000, DC Md) 84 F Supp 2d702.

School district did not violate Individuals with Disabilities Education Act, 20 USCS 1400 et seq., where schooldistrict's delay in formulating disabled child's Individualized Educational Program and determining her placement didnot violate her rights to free appropriate public education under 20 USCS 1400(d)(1)(A). Shaw v District of Columbia(2002, DC Dist Col) 238 F Supp 2d 127.

Court granted school district's motion for judgment on record because district was not mandated by reference toplaintiff parents' choice of personal care attendant (PCA) to use that attendant, and replacing PCA chosen by parentswith district-employed assistant did not deny child free appropriate public education. Slama v Indep. Sch. Dist. No. 2580(2003, DC Minn) 259 F Supp 2d 880.

Decision of public school hearing officer to require school to provide aide to assist wheelchair-bound child from hisresidence to school bus was affirmed; school's refusal to provide aide denied child free appropriate public education, asguaranteed by 20 USCS 1400(d)(1)(A), 1401(22), because child was unable to attend school and obtain educationalservices provided by his individualized education program; moreover, if school's regulations and policies did not permit

Page 1620 USCS 1400

provision of aide to transport minor child between his residence and school bus, they violated Individuals withDisabilities Act, 20 USCS 1400 et seq. District of Columbia v Ramirez (2005, DC Dist Col) 377 F Supp 2d 63.

State of Hawaii Department of Education complied with requirements of Individuals with Disabilities EducationAct, 20 USCS 1400 et seq., though it refused to hire skills trainer with experience with Asperger's syndrome aftereducation of student with Asperger's syndrome allegedly began to deteriorate, because Department had adequatelyprovided student with individualized education plan and had offered student free appropriate public education asdefined at 20 USCS 1401(9); Department was not required to provide absolute best or "potential-maximizing"education for student. B.V. v Dep't of Educ. (2005, DC Hawaii) 451 F Supp 2d 1113.

Individuals with Disabilities Education Act (IDEA), 20 USCS 1400 et seq., clearly requires school district toassume pendente lite costs of private educational placement once state hearing officer rules that public placementproposed in individualized educational plan (IEP) is inappropriate and that private placement is appropriate; this is truebecause (1) IDEA, when construed as whole, requires local education authority to provide all disabled children with freeappropriate public education as condition of accepting federal funding and (2) decision of state hearing officer that IEPis inappropriate and private school placement is appropriate is agreement within meaning of 20 USCS 1415(j). CountySch. Bd. v RT (2006, ED Va) 433 F Supp 2d 692.

Decisions of appeal officer that were challenged by parents were affirmed; parents' notion was rejected that schoolpersonnel had to be wrong whenever they did not choose parent's preferred methods of reading instruction and auditoryformat, and parents failed to prove that their preferred methods were only ones that could provide their son with freeappropriate public education to which he was entitled under Individuals with Disabilities Education Act, 20 USCS 1400 et seq. Miller ex rel. S.M. v Bd. of Educ. (2006, DC NM) 455 F Supp 2d 1286.

Appropriate standard for determining whether individual education program provides free and appropriate publiceducation is whether it is reasonably calculated to enable child to receive educational benefits; accordingly, despiteamendments made to Individuals with Disabilities Education Act (IDEA), act does not require school district tomaximize student's potential, but only requires district to provide special needs students with educational benefits. SanRafael Elem. Sch. Dist. v Cal. Special Educ. Hearing Office (2007, ND Cal) 182 F Supp 2d 1152.

In case arising under Individuals With Disabilities Education Act, 20 USCS 1400 et seq., in which child'sindividualized education program (IEP) was violated because: (1) speech therapist missed handful of session; (2) speechtherapist cut other session short because child's fatigue was rendering therapy unproductive; and (3) other sessions didnot take place due to snow days, holidays, child's absence from school, and like, district court granted summaryjudgment in favor of District of Columbia and school superintendent because failure to follow IEP's requirements toletter was excusable under circumstances; such failures were not material. Catalan v Dist. of Columbia (2007, DC DistCol) 478 F Supp 2d 73.

Hearing officer properly found that county board of education's proposed placement of student with cochlearimplants in its Head Start collaborative program satisfied Individuals with Disabilities Education Act, 20 USCS 1400et seq., because, inter alia, student could receive educational benefit, notwithstanding fact that program was not made upof 100% typically developing children. A.U. v Roane County Bd. of Educ. (2007, ED Tenn) 501 F Supp 2d 1134.

Plaintiff's 42 USCS 1983 claim against District of Columbia and public charter school failed to state claim foralleged violations of IDEA for failure to provide plaintiff's child with appropriate education services under 20 USCS 1400(d), 1401(11), and 1414 because claim was legally moribund in that no facts demonstrated that exceptionalcircumstances rendered conduct persistently egregious or why normal IDEA remedies did not offer adequatecompensation. B.R. v District of Columbia (2007, DC Dist Col) 524 F Supp 2d 35.

2004 amendments to IDEA, such as those codified in 20 USCS 1400(c)(5), did not alter Rowley standardregarding provision of free appropriate public education (FAPE) pursuant to 20 USCS 1412(a)(1), which was based

Page 1720 USCS 1400

on definition of FAPE contained in 20 USCS 1401(9); Rowley standard had been prominent for more than 25 years,and Congress had not articulated disagreement with it or amended definition of FAPE, propelling finding thatstandard-that FAPE required that education to which access was provided be sufficient to confer some educationalbenefit upon handicapped child-survived; though it was argued that 34 CFR 300.320(a)(4) showed substantialincrease in IDEA's focus on academic and transition services, such regulation was part of definition of what had to beincluded in individualized education plan and was identical to statutory language in 20 USCS 1414(d)(1)(a)(i)(IV,which existed prior to 2004 IDEA amendments. C. v Me. Sch. Admin. Dist. No. 6 (2008, DC Me) 538 F Supp 2d 298.

In case brought under Individuals with Disabilities Education Act, mother was entitled to summary judgmentbecause functional behavioral assessment had not been performed on her daughter in over two years; District ofColumbia had failed to appropriately monitor daughter's progress under individualized education program, therebydepriving her of free appropriate public education; functional behavioral assessment was educational evaluation forpurposes of 34 CFR 300.502. Harris v District of Columbia (2008, DC Dist Col) 561 F Supp 2d 63.

While District of Delaware court does not recommend having disabled child attend school without individualizededucation program (IEP) in place, one week delay in putting IEP in place is minor procedural error; in such situation,absence of IEP on first day of school does not equate to denial of child's right to free appropriate public education. C.H.v Cape Henlopen Sch. Dist. (2008, DC Del) 566 F Supp 2d 352.

Because state education agency was ultimately responsible for ensuring that broad goals of Individuals withDisabilities Education Act (IDEA), 20 USCS 1400 et seq., were met and because state law failed to provide alternatemethod of allocating responsibility for minor's free and appropriate public education (FAPE) while he was atout-of-state residential treatment facility, ultimate responsibility for providing FAPE rested with state agency. OrangeCounty Dep't of Educ. v A.S. (2008, CD Cal) 567 F Supp 2d 1165.

Changes to Individuals with Disabilities Education Act in 20 USCS 1400(c)(5)(A), 1401(17), (34), 1412(a)(15),as compared to its predecessor Education of Handicapped Act, did not change standard to be applied to determiningwhether conforming Individual Education Program (IEP) had been developed and in appellant parents' action againstappellee school district, standard that IEP had to provide "meaningful" educational benefit still applied. K.C. vMansfield Indep. Sch. Dist. (2009, ND Tex) 618 F Supp 2d 568.

In mother's suit seeking compensatory education award, where hearing officer found there was convincing evidencethat school system failed to provide all of services in son's program, remand was necessary because administrativerecord was insufficient to determine whether son was denied free appropriate public education when school system didnot provide all of services in son's program. Banks v District of Columbia (2010, DC Dist Col) 720 F Supp 2d 83.

Unpublished Opinions

Unpublished: Disabled student was not denied access to high school classroom in violation of Individuals withDisabilities Education Act, 20 USCS 1400 et seq., because he was provided aide and acceptable alternate route toreach classroom; taking that route did not affect student's ability to receive meaningful educational benefit under hisindividualized education plan and, thus, did not deny him free and appropriate public education. Logwood v La. Dep't ofEduc. (2006, CA5 La) 2006 US App LEXIS 21450.

Unpublished: Disabled student was not denied access to high school auditorium stage in violation of Individualswith Disabilities Education Act, 20 USCS 1400 et seq., because, while stage was not wheelchair accessible whenstudent was participating in high school drama club, he did not audition for any plays and did not participate in anyactivity that required him to be on stage; if he had, activity would have been moved to handicapped-accessiblegymnasium, as had occurred in past; therefore, student was not denied meaningful educational benefit and, thus, wasnot denied free and appropriate public education. Logwood v La. Dep't of Educ. (2006, CA5 La) 2006 US App LEXIS21450.

Page 1820 USCS 1400

Unpublished: In action brought by plaintiffs, parents and child, against school district, district court properlydetermined that district provided child with "free appropriate public education" (FAPE) as required by Individuals withDisabilities Education Act (IDEA), 20 USCS 1400 et seq., because plaintiffs were not entitled to tuitionreimbursement for 2001-2002 school year because school district should not have to reimburse parents for educationexpenses before it received sufficient notice, through due process request, that parents challenged adequacy of FAPEprovided, and at time plaintiffs sought due process, district remained unaware of parents' dissatisfaction with its FAPEservices; plaintiffs were not entitled to tuition reimbursement for 2002-2003 school year also because district'sIndividualized Educational Program provided them with meaningful educational benefit; further, plaintiffs'compensatory education claim was properly denied because they had not shown that district denied child adequateeducation. Marissa F. v William Penn Sch. Dist. (2006, CA3 Pa) 2006 US App LEXIS 24364.

Unpublished: Action brought by plaintiffs, minor and his father, against defendants, school district, itssuperintendent, and district employees, alleging violations of 20 USCS 1400 et seq.; 504 of Rehabilitation Act of1973, 29 USCS 794a; 42 USCS 12101 et seq.; 42 USCS 1983; and various provisions of Georgia law, wasproperly dismissed because plaintiffs' claims concerned whether defendants' actions in November 2003 violated IDEAand constituted breach of provisions of parties' settlement agreement, and thus, minor's alleged injuries primarily relatedto provision of his "free and appropriate public education" and constituted educational injuries, so plaintiffs wererequired to exhaust their administrative remedies pursuant to 20 USCS 1415(l) before filing court action. J.P. vCherokee County Bd. of Educ. (2007, CA11 Ga) 2007 US App LEXIS 4400.

Unpublished: In case brought pursuant to Individuals with Disabilities Education Act, in which parents soughtreimbursement for costs incurred while their child was enrolled in residential treatment facility, district court's entry ofsummary judgment in favor of school board was affirmed since parents' evidence related to child's behavior outsideclassroom; it did not raise genuine issue of material fact regarding whether day school in which child had beenpreviously enrolled provided child with free appropriate public education. L.G., ex rel. B.G. v Sch. Bd. (2007, CA11Fla) 2007 US App LEXIS 24349.

Unpublished: District court erroneously rejected ALJ's determination that school board had failed to provide freeappropriate public education to student as required by Individuals with Disabilities Education Act; ALJ properlyconcluded that student, who had learning disability, had not received appropriate education given that student hadabove-average intelligence but was performing one to two years below grade level in reading and writing. RingwoodBd. of Educ. v K.H.J. ex rel. K.F.J. (2007, CA3 NJ) 2007 US App LEXIS 28876.

Unpublished: ALJ properly held that two school districts had to share costs associated with providing free publiceducation under Individuals with Disabilities Education Act, 20 USCS 1400 et seq., to disabled child whose divorcedparents shared joint legal and physical custody because rule that children of divorced parents who shared legal andphysical custody might have dual domicile for purposes of allocating cost of their education under N.J. Stat. Ann. 18A:38-1(a) was clearly applicable. Cumberland Reg'l High Sch. Dist. Bd. of Educ. v Freehold Reg'l High Sch. Dist.Bd. of Educ. (2008, CA3 NJ) 2008 US App LEXIS 20636.

Unpublished: School district and officials had not denied child free and appropriate public education where statereviewing officer had found that child's need were not highly intensive and that placement in classroom with largerstudent to teacher ratio was appropriate. E.H. v Bd. of Educ. (2009, CA2 NY) 2009 US App LEXIS 22757.

Unpublished: Plaintiffs' claim, alleging that defendant school district failed to provide plaintiff child with "free andappropriate public education," was dismissed for failure to exhaust administrative remedies where plaintiffs requesteddue process hearing by state education agency less than week before complaint was filed; because plaintiffs did notrequest that child "stay put" in any current educational placement (they sought placement for child in new school districtand new educational program not yet agreed upon as part of individualized education program), relief requested was notcontemplated by stay-put and, therefore, did not excuse plaintiffs from exhausting administrative remedies. J.C. v N.Harrison County Cmty. Sch. Corp. (2005, SD Ind) 60 FR Serv 3d 1001.

Page 1920 USCS 1400

7. Special education and related services

Education for All Handicapped Children Act (20 USCS 1400 et seq.) mandates that all handicapped children areentitled to free education and does not require that child will benefit from educational program; thus multi-handicappedand profoundly retarded child, who unquestionably fit court's definition of "handicapped child", was entitled to specialeducation and related services. Timothy W. v Rochester, School Dist. (1989, CA1 NH) 875 F2d 954, cert den (1989)493 US 983, 107 L Ed 2d 520, 110 S Ct 519.

If student's parents want him to receive special education under IDEA (20 USCS 1400 et seq.), they must allowschool itself to reevaluate student, and they cannot force school to rely solely on independent evaluation obtained byparents. Andress v Cleveland Indep. Sch. Dist. (1995, CA5 Tex) 64 F3d 176, 11 ADD 649, reh den (1995, CA5 Tex)1995 US App LEXIS 27950 and cert den (1996) 519 US 812, 136 L Ed 2d 20, 117 S Ct 58.

When school district does not perform exactly as called for by individualized education program (IEP), district doesnot violate Individuals with Disabilities in Education Act, 20 USCS 1400 et seq., unless it is shown to havematerially failed to implement child's IEP; material failure occurs when services provided to disabled child fallsignificantly short of those required by IEP. Van Duyn v Baker Sch. Dist. 5J (2007, CA9 Or) 481 F3d 770.

Parents were not entitled to reimbursement of costs they incurred when they enrolled their child in private schoolbecause child did not qualify for special education due to "specific learning disability" because any existing severediscrepancy between ability and achievement appeared correctable in regular classroom as evidenced by child's nearlyuniformly average or above average grades; any "other health impairment" that child did suffer from did not adverselyaffect her performance to extent that she required education outside of general classroom; furthermore, to attempt toaccommodate child, in spite of her medical conditions, in general classroom was consistent with concept ofmainstreaming, objective that school district was legally bound to pursue. Hood v Encinitas Union Sch. Dist. (2007,CA9 Cal) 486 F3d 1099.

Because school district's failure to provide free appropriate public education violates Individuals with DisabilitiesEducation Act, 20 USCS 1400 et seq., it could also violate 29 USCS 794 and/or 42 USCS 12132; therefore,district court erred by dismissing claim by parents of cognitively disabled child that school district's failure to providetheir child with free and appropriate education concurrently violated two Acts. Chambers v Sch. Dist. of Phila. Bd. ofEduc. (2009, CA3 Pa) 587 F3d 176.

Cognitively disabled adult child's equal protection rights under Fourteenth Amendment were not violated as matterof law because she failed her burden of showing that school district intentionally discriminated against similarly situateddisabled students by denying them free appropriate public education under Individuals with Disabilities Education Act,20 USCS 1400 et seq. Chambers v Sch. Dist. of Phila. Bd. of Educ. (2009, CA3 Pa) 587 F3d 176.

Mother's suit arising from school's use of safe room to discipline her autistic son pursuant to individualizededucation program developed under Individuals with Disabilities Education Act, 20 USCS 1400(d)(1)(A) and1414(d), alleged injuries for which 20 USCS 1401(26) provided relief, and thus exhaustion requirement applied;because she did not exhaust her claims by requesting due process hearing under 20 USCS 1415(f), her suit wasproperly dismissed. Payne v Peninsula Sch. Dist. (2010, CA9 Wash) 598 F3d 1123.

Where team determined that student with rare genetic disease did not need special education, but administrative lawjudge (ALJ) concluded that team had erred, remand was warranted because, inter alia, (1) ALJ applied wrong legalstandard in determining whether disease adversely affected student's educational performance, (2) there was nosubstantial evidence to support ALJ's finding that it had adverse affect, and (3) ALJ impermissibly discounted adaptivegym teacher's testimony. Marshall Joint Sch. Dist. No. 2 v C.D. (2010, CA7 Wis) 616 F3d 632.

State's imposition upon responsible relative of liability for special education provided handicapped child and state'srefusal to pay cost of treatment and education of child at residential treatment center where he was placed by state

Page 2020 USCS 1400

Department of Mental Health and Developmental Disabilities, violates Education For All Handicapped Children Act(20 USCS 1400 et seq.), by denying eligible child "free appropriate public education," for which state Board ofEducation, Department of Mental Health and Developmental Disabilities, Govenor's Purchased Care Review Board, andlocal Board of Education are all jointly liable, with responsibility on State Board of Education to develop plan forcoordinating compliance with Federal law. Parks v Pavkovic (1983, ND Ill) 557 F Supp 1280, affd in part and revd inpart on other grounds (1985, CA7 Ill) 753 F2d 1397, 1 FR Serv 3d 146, cert den (1985) 473 US 906, 87 L Ed 2d 653,105 S Ct 3529 and cert den (1985) 474 US 918, 88 L Ed 2d 255, 106 S Ct 246.

State education department violated Education of Handicapped Act (20 USCS 1400 et seq.), where handicappedstudents found to be in need of special education programs comparable to those enjoyed by non-handicapped studentswere not provided with programs, handicapped students whose needs could be met in regular schools were segregatedfrom non-handicapped students, and enough classes to meet needs of handicapped students were not opened. Hendricksv Gilhool (1989, ED Pa) 709 F Supp 1362.

School district's decision that student did not qualify for special education as "emotionally disturbed" will stand,even though foster parent, 2 teachers, and clinical psychologist opine that he is emotionally disturbed within meaning ofstate law, because majority of student's teachers disagreed and their testimonies were better informed and morepersuasive. Maricus W. v Lanett City Bd. of Educ. (2001, MD Ala) 141 F Supp 2d 1064.

Disabled child was provided with access to specialized instruction and related services which were designed toprovide educational benefit, and parents insistence that non-public school setting was more appropriate did not establishinappropriateness of public school, even if child would have benefited more in private setting. Hanson v Smith (2002,DC Md) 212 F Supp 2d 474.

Decision of ALJ which upheld school district's policy limiting goals of Extended Service Year (ESY) program toretaining skills already acquired in prior school year was affirmed because policy did not violate Individuals withDisabilities in Education Act; policies valid for establishing availability of ESY services applied also to establishingcontent of ESY services, and ESY programs could be limited to services needed to prevent regression. McQueen vColo. Springs Sch. Dist. No. 11 (2006, DC Colo) 419 F Supp 2d 1303.

Where nothing in record indicated defendant school district's counselors were unwilling to see plaintiff studentduring hours that she was expected to attend school, and in fact, evidence showed that student's all-day absences due tosleep disorder prevented her attendance at counseling sessions regardless of time that they were scheduled, and thus,there was no violation of 20 USCS 1400(d)(1)(A), 1414(d)(1)(A)(i) (IV). Ariel B. v Fort Bend Indep. Sch. Dist. (2006,SD Tex) 428 F Supp 2d 640.

Student with Down Syndrome was granted relief in his Individuals with Disabilities Education Act (IDEA), 20USCS 1400 et seq., suit because administrative record showed clear violation of 20 USCS 1414(b)(2)(B), arisingfrom public high school's failure to individually assess student's needs prior to assigning him to self-contained specialeducation program: (1) student had successfully progressed under prior, inclusion-based individualized educationprogram (IEP); (2) record showed that high school offered, to its disabled students, only unassisted classroomplacement or placement in its separate, special needs program and that it placed student in special needs program afterconcluding that his disabilities precluded him from participating in regular classes on his own; and (3) pursuant to 20USCS 1414(b)(2)(B), high school could not use any single procedure as sole criteria for determining appropriate IEPfor student, it was required to assess student's individual needs in developing IEP for him, and pursuant to 20 USCS 1400(c)(5)(D) it was required to include him in general curriculum, to maximum extent possible, by providing him aidsand other support as necessary. John M. v Bd. of Educ. of Evanston Twp. High Sch. Dist. 202 (2006, ND Ill) 450 F Supp2d 880.

Under Individuals with Disabilities Education Act (IDEA), 20 USCS 1400 et seq., parents were entitled totuition reimbursement after unilaterally placing their autistic child in private school for students with

Page 2120 USCS 1400

neurodevelopmental disorders because (1) department of education did not dispute that it failed to offer child freeappropriate public education in recommending that she be placed at public school for children with disabilities; (2)private school was appropriate placement for child because she was provided education instruction specifically designedto meet her unique academic and therapeutic needs, program paralleled state curriculum standards, school providedextensive support services, and child was making progress at school; and (3) equitable considerations supported parents'claim, as parents cooperated with school district and followed proper procedures before enrolling student at privateschool; however, parents were not entitled to reimbursement for tuition incurred in July and August because under N.Y.Educ. Law 2(15), school year was defined as 12-month period from July 1 and to June 30 of following year, andparents failed to demonstrate that they exhausted their statutory remedies as required by IDEA. A.D. & M.D. v Bd. ofEduc. of City Sch. Dist. (2010, SD NY) 690 F Supp 2d 193.

N.Y. Comp. Codes R. & Regs. tit. 8, 200.22 represent permissible educational policy choice for variety ofreasons; regulations' limitation and gradual phasing out of aversives is consistent with focus in Individuals WithDisabilities Education Act, 20 USCS 1400 et seq., on positive behavioral modification methods. Alleyne v New YorkState Educ. Dep't (2010, ND NY) 691 F Supp 2d 322.

Unpublished Opinions

Unpublished: Plaintiff parents' claims against defendant school district for declaratory and injunctive relief underIndividuals with Disabilities in Education Act, 20 USCS 1400 et seq., were not rendered moot by child's graduationfrom high school. C.M. v Bd. of Educ. (2005, CA3 NJ) 128 Fed Appx 876.

Unpublished: School district did not violate Individuals with Disabilities Education Act (IDEA), 20 USCS 1400et seq., because individualized educational plan (IEP) was directed to all areas of child's educational development, notjust his reading and comprehension and findings that educational and non-academic benefits to be derived frommainstream program were minimal and blended program would be better suited to meet child's unique abilities andneeds were sufficient to overcome preference for mainstreaming. B. S. v Placentia-Yorba Linda Unified Sch. Dist.(2009, CA9 Cal) 2009 US App LEXIS 155.

8. Miscellaneous

Requirement of waiver under 20 USCS 1403 of Individuals with Disabilities in Education Act (IDEA), 20 USCS 1400 et seq., clearly promotes interests found in 20 USCS 1400(d)(1)(A), (B) in free appropriate public educationfor all disabled children and protection of rights of children and parents by ensuring full accountability in federal courtfor statutory violations committed by state educational authorities who receive federal financial assistance under IDEA.A.W. v Jersey City Pub. Schs. (2003, CA3 NJ) 341 F3d 234 (criticized in Sacca v Buffalo State College (2004, WD NY)2004 US Dist LEXIS 9134).

Where parents transferred student to private residential treatment program without prior notice or objections and