Advocates Urge Appeals Court to Maintain “Compensatory Education” for Students Denied Special Education Services

December 21, 2011

Advocates are raising concerns that a case now before the U.S. Court of Appeals for the Third Circuit in Philadelphia would significantly undermine education rights for countless children with disabilities, especially those who are indigent.

Education Law Center (ELC), represented by global law firm White & Case LLP, recently filed an amicus (or “friend of the court”) brief in D.F. v. Collingswood Public Schools. ELC argues that the Third Circuit should reverse a New Jersey District Court decision that held a child’s “compensatory education” claim was moot because the child subsequently moved from New Jersey to another state.

ELC was joined on the brief by a large number of organizations from around the country, including Advocates for Children of New Jersey, The Arc of New Jersey, Children’s Voices, Disability Rights New Jersey, Disability Rights Education and Defense Fund, Inc., New Jersey Special Education Practitioners, The Public Interest Law Center of Philadelphia, The Special Education Clinic at Rutgers University School of Law-Newark, Special Education Leadership Council of New Jersey and Statewide Parent Advocacy Network.

Guaranteed under federal law, “compensatory education” is a prospective award of special education programs or services, such as tutoring and physical therapy, to make up for a district’s failure to provide a “free and appropriate public education” (FAPE) to eligible students.

“The District Court’s decision in this case has disastrous implications for the many children with disabilities who move out of district every year, often because the districts failed to deliver needed services,” said ELC Senior Attorney Ruth Lowenkron. “For students with disabilities, especially those who are indigent, compensatory education is often the sole remedy available to cure past violations.”

ELC urges the court to uphold prospective compensatory education awards to children who leave school districts that have previously denied them special education programs and services.

“If a school district fails to provide a child with FAPE, courts must award compensatory education to make the child educationally whole, even if the child later leaves the offending school district,” said John Rue, the White & Case lawyer who served as lead counsel for ELC in this matter. “School districts should not benefit financially from denying a child necessary special education services, nor should they receive a windfall because a child’s family leaves the district. The law requires districts to remedy their past violations of the law.” 


Press Contact:

Ruth Deale Lowenkron, Esq.
Senior Attorney
973-624-1815, x 21

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Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
973-624-1815, x240