Q: What is compensatory education?
A: Compensatory education is designed to get a student to the place they would have been had they not been deprived of special education and related services. The content of a compensatory education program should be based on a student’s individual level of performance. The IDEA requires school districts to provide a free appropriate public education (FAPE) to students with a disability by providing each eligible student with an Individual Educational Program (IEP) designed to meet that student’s unique needs [20 U.S.C. § 1412(a)(1)]. Compensatory education is an equitable remedy to remediate the loss of a FAPE for a period of time. It aims to provide “services prospectively to compensate for a past deficient program” [Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir. 2008)]. Such awards “should place children in the position they would have been in but for the violation of the Act” [id. at 1289, citing Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)].
Q: Must there be a finding of negligence or fault?
A: No. An award of compensatory education does not require a finding of negligence or fault on the part of a school district. Instead, compensatory education merely remedies a loss of special education services without regard to the cause of that loss. So, the loss of special education services due to a COVID-19 forced school closure entitles students to compensatory education, as the U.S. Department of Education has made clear.
Q: How is the amount of compensatory education awarded?
A: There are two different measures courts have used, a quantitative approach and a qualitative approach.
With a quantitative approach, the court provides an hour-for-hour replacement of services lost. In 1996, the Third Circuit articulated the standard: “a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem” [M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3d Cir. 1996)].
But recently, courts have called the quantitative measure a“cookie-cutter approach” that “runs counter to both the ‘broad discretion’ afforded by IDEA’s remedial provision and the substantive FAPE standards that provision is meant to enforce.”
Now, many courts rely on a qualitative approach, first articulated in 2005 by the D.C. Circuit Court in Reid v District of Columbia. Click here for the decision. Instead of looking at services lost, the qualitative approach looks to the educational benefit lost. Using a qualitative approach, awards for comp ed are based on individualized assessments, leading to different results depending on the differing needs of students.
The court concluded, “The inquiry must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” (id. at 524). The court reasoned that there must be evidence regarding the child’s specific education deficits and the specific compensatory measures required to correct them (id. at 526). Incontrast to ordinary education programs, which need only provide “some benefit,” compensatory education awards “must do more – they must compensate” (id. at 518). The award should be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” (id. at 524).
Students have received awards of compensatory education based on their individual circumstances. Here are three recent decisions:
- Somberg v. Utica Cmty. Schs., 908 F.3d 162, 167 (6th Cir. 2018) (school district ordered to pay for 1,200 hours of tutoring and one year of transition planning); https://law.justia.com/cases/federal/appellate-courts/ca6/17-2195/17-2195-2018-11-05.html
- Ferren C. v. Sch. Dist. of Phil., 612 F.3d 712, 179-20 (3rd Cir. 2010) (funding a trust fund and providing an IEP beyond age 21); https://casetext.com/case/ferren-c-v-school-dist-of-philadelphia
- Draper v. Atlanta Indep. Pub. Sch, 518 F.3d at 1283, 1285 (provision of a private school placement to last until the student received a high school diploma or until a specific date extending the time for eligible services, whichever came first). https://www.wrightslaw.com/law/caselaw/08/11th.jdraper.atlanta.htm
For a summary of case law, click here >>
Regardless of whether courts take a quantitative approach or a qualitative approach, they agree that, when students are deprived of FAPE because school districts have violated or were unable to comply with the substantive requirements of IDEA, including Child Find, students are entitled to an award of compensatory education.
