The Individuals with Disabilities Education Act (IDEA): Selected Judicial Developments Following the 2004 Reauthorization
Released: 2011-05-04T00:00:00

Introduction

The Individuals with Disabilities Education Act (IDEA) is the major federal statute for the education of children with disabilities. IDEA both authorizes federal funding for special education and related services and, for states that accept these funds, sets out principles under which special education and related services are to be provided. The requirements are detailed, especially when the regulatory interpretations are considered. The major principles include the following requirements:

States and school districts make available a free appropriate public education (FAPE) to all children with disabilities, generally between the ages of 3 and 21. States and school districts identify, locate, and evaluate all children with disabilities, regardless of the severity of their disability, to determine which children are eligible for special education and related services. Each child receiving services has an individual education program (IEP) spelling out the specific special education and related services to be provided to meet his or her needs. The parent must be a partner in planning and overseeing the child's special education and related services as a member of the IEP team. "To the maximum extent appropriate," children with disabilities must be educated with children who are not disabled; and states and school districts provide procedural safeguards to children with disabilities and their parents, including a right to a due process hearing, the right to appeal to federal district court, and, in some cases, the right to receive attorneys' fees.

IDEA was originally enacted in 1975 in response to judicial decisions holding that when states provide an education for children without disabilities, they must also provide an education for children with disabilities. IDEA has been the subject of numerous reauthorizations; the most recent reauthorization was P.L. 108-446 in 2004. P.L. 108-446 included specific authorizations for appropriations through 2011. Congress is currently beginning the process of identifying potential issues for the next reauthorization. This report examines the Supreme Court decisions, and selected lower court decisions since July 1, 2005, the effective date of P.L. 108-446 .

Definition of Disability

A key component of IDEA is the definition of a child with a disability. Unlike the definitions of disability in the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, the IDEA definition is categorical, not functional, and contains a requirement that the child needs special education and related services. The IDEA definition states the following:

CHILD WITH A DISABILITY.—''(A) IN GENERAL.—The term 'child with a disability' means a child—''(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title as 'emotional disturbance'), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and ''(ii) who, by reason thereof, needs special education and related services.

In Hansen v. Republic R-III School District , the court examined whether a child who had been diagnosed with conduct disorder, bipolar disorder, and attention deficit hyperactivity disorder (ADHD) was a child with a disability under IDEA. Finding that the child met the IDEA definitional categories of serious emotional disturbance and other health impairments, the court noted that the child was not "merely socially maladjusted" but struggled to pass his classes and standardized tests. Similarly, the child was found to have a diagnosis of ADHD and his educational performance was affected by the condition.

The need for special education and related services was key in other court decisions. Several courts of appeal decisions have examined whether a child who falls within one of the categories of disabilities but whose disability may have a minimal effect on education is a child with a disability and thus covered by IDEA. In L.I. v. Maine School Administrative District No. 55 , the First Circuit Court of Appeals found that a child with Asperger's Syndrome and an adjustment disorder with depressed mood was a child with a disability under IDEA even though she had high grades, generally non-disruptive behavior, and "undisputed intellectual ability." The court rejected the argument that IDEA is limited to children whose disabilities "significantly impact educational performance," noting that neither the statute nor its regulations contain this limiting language. Similarly, in Board of Education of Montgomery County v. S.G. the school argued that a child with schizophrenia was not a child with a disability because the disability did not adversely affect her school performance. The Fourth Circuit Court of Appeals rejected this argument after finding that the child had missed a substantial amount of school due to hospitalizations, failed to complete many of her assignments, and, if returned to the public school environment, would most likely be hearing voices again.

On the other hand, the Ninth Circuit in R.B. v. Napa Valley Unified School District held that a child with ADHD, depression, reactive attachment disorder, and post traumatic stress disorder who exhibited violent tendencies was not eligible for IDEA services since her inappropriate behavior did not adversely affect her educational performance. The fact that the child received a Section 504 plan and behavioral supports did not make her eligible under IDEA. In Alvin Independent School District v. AD , the Fifth Circuit also found no adverse educational effect from the child's ADHD. Mr. and Mrs. N.C. v. Bedford Central School District examined whether a child with dysthymic disorder met the requirements of the IDEA regulations for seriously emotionally disturbed and found that the child's behavior fell short of the requirements for seriously emotionally disturbed. The Second Circuit also noted that even if the child qualified as seriously emotionally disturbed, there was insufficient evidence that his educational performance was adversely affected.

Child Find

IDEA requires that in order to receive funds under the statute, a state must submit a plan to the Secretary of Education indicating that a state has certain policies and procedures in effect. Among these is the requirement that all children with disabilities and who are in need of special education, are identified, located, and evaluated. This requirement is referred to as child find. Although this requirement has not been heavily litigated, the ninth circuit held in Compton Unified School District v. Addison that a school district who failed to evaluate a ninth grader who failed all her classes, colored with crayons and played with dolls in class failed to meet IDEA's child find requirement and that such a failure could be the subject of a due process complaint. Although the Supreme Court has not yet made a determination regarding whether the case will be heard, the Court did ask the Department of Justice for its views on the issue. The issue as presented to the Court is whether the parent of a child with a disability has a right to a due process hearing alleging negligence because of school officials' failure to arrange an educational program for the child, or if due process suits are only allowed when the school district makes an intentional decision.

Free Appropriate Public Education (FAPE)

Statutory Provision

The core requirement of IDEA is that a state must provide children with disabilities a free appropriate public education in order to receive federal funding under the act. FAPE is defined in the statute as meaning "special education and related services that—(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 614(d)."

Supreme Court Decision in Rowley

A seminal decision on the requirements of FAPE , Board of Education of the Hendrick Hudson Central School District v. Rowley , decided in 1982, was the first IDEA case to reach the Supreme Court. The Supreme Court noted that there was no substantive language in IDEA regarding the level of education to be accorded to children with disabilities and observed that "(i)mplicit in the congressional purpose of providing access to a 'free appropriate public education' is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child." The Court concluded that "the 'basic floor of opportunity' provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." The Court held that the requirement of FAPE is met when a child is provided with personalized instruction with sufficient support services to benefit educationally from that instruction. This instruction must be provided at public expense, meet the state's educational standards, must approximate the grade levels used in the state's regular education, and must comport with the child's IEP. The Court found that when a child with a disability is mainstreamed, "the system itself monitors the educational progress of the child.... The grading and advancement system thus constitutes an important factor in determining educational benefit." Therefore, the IEP "should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." However, the states are not required to "maximize" each child's potential. If the child is progressing from grade to grade and making measurable and adequate gains, the FAPE requirement is met.

The Supreme Court also stated that in ensuring that the requirements of the statute have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the states. The primary responsibility for formulating the education provided was left by IDEA to state and local educational agencies. As the Court noted, determining when children with disabilities are "receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem" than complying with requirements for access to education. Because of the wide spectrum of disabilities, the Court did not attempt to establish any one test for determining the adequacy of educational benefits and confined its analysis to the facts of the case.

Lower Court Decisions

Rowley remains a key decision under IDEA and is often cited by courts attempting to determine the parameters of a free appropriate public education. However, the lower courts have varied in how expansively they have interpreted Rowley , with some courts interpreting Rowley to support schools' IEPs if the procedural requirements have been met, even if the educational progress is minimal. For example, in Fort Zumwalt School District v. Clynes , the Eighth Circuit emphasized Rowley's "access to education" requirement and held that the IEP was adequate. The court noted that the child was making progress, earning passing marks and advancing to the next grade, despite reading proficiency scores in the second to ninth percentile. However, the dissenting opinion described the child's achievement as "trivial" and argued that "(t)his cannot be the sort of education Congress had in mind when it enacted IDEA." Some courts have emphasized that IDEA requires the provision of educational services and medical services, particularly mental health needs, are not covered.

Other courts have read Rowley more expansively. For example, in Polk v. Cent. Susquehanna Intermediate Unit 16 , the Third Circuit examined the "some educational benefit" language in Rowley and held that it required an IEP to provide more than de minimis educational benefit. Similarly, the Fifth Circuit, in Cypress-Fairbanks Indep. School District v. Michael F ., quoted from Rowley and concluded that "the educational benefit that an IEP is designed to achieve must be meaningful." In order to determine whether an IEP meets this standard, the Cypress-Fairbanks court identified four factors: (1) the program is individualized; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner; and (4) positive academic and nonacademic benefits are demonstrated. Other courts have looked at academic achievement testing, as well as grades, to measure educational benefit. For example, in Falzett v. Pocono Mountain School District, the court found that, despite allegations of missed days and limited curriculum, a student whose SAT scores improved and who received excellent grades, qualifying him for the Junior National Honor Society, had received FAPE under IDEA. However, in Ringwood Board of Education v. K.H.J. , the Third Circuit found that when a child has above average intellectual ability IDEA requires more than a negligible benefit, and noted that "expecting a child with 'above average' intelligence to perform in the 'average' range hardly qualifies as 'maximizing' that child's potential."

Procedural or other violations do not always give rise to a violation of FAPE. Generally, procedural violations must affect the child's substantive rights. For example, FAPE has been found to require that services mandated by an IEP be implemented as soon as possible after the IEP development, not immediately or within 30 days. Similarly, inaccessible facilities do not necessarily violate FAPE if there is general program accessibility. In addition, FAPE has been found not to be violated when a resolution session is improperly convened if there was not substantial effect on the child's educational opportunities. However, certain procedural violations may be significant enough to be a denial of FAPE. In N.B. and C.B. v. Hellgate Elementary School District, the Ninth Circuit held that the school's failure to evaluate a child in all areas of suspected disability was a procedural error that denied FAPE. A denial of FAPE was also found when the LEA unilaterally scheduled an IEP meeting without attempting to reach a mutually agreed upon time with the parents.

Educational Standards and the No Child Left Behind Act (NCLBA)

The application of the Supreme Court's analysis in Rowley to current controversies is somewhat confused by the change in the usage of the term "educational standards." Although the Supreme Court in Rowley required that the instruction given to a child with a disability meet the state's educational standards, the term "educational standards" has taken on a different meaning in recent years. Currently, the term "educational standards" is likely to refer to specific content-based standards that delineate what a child should know and be able to perform at various points in his or her educational career.

The 1997 Amendments to IDEA reflected the standards-based education movement. P.L. 105-17 significantly changed the IEP requirements and required that the IEP include, among others, a statement of the child's present levels of educational performance, including the effect of the child's disability on the child's involvement and progress in the general curriculum, and a statement of measurable annual goals designed to enable the child to progress in the general curriculum. In addition, in the statement of findings for the 2004 reauthorization, P.L. 108-446 states that "[a]lmost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by—(A) having high expectations for such children and ensuring their access to the general curriculum in the regular classroom to the maximum extent possible."

Given the fact that the standards-based education movement, as reflected in IDEA and the No Child Left Behind Act (NCLBA), has changed the standards from what was required in the version of the law the Supreme Court interpreted in Rowley , questions have been raised concerning the current application of Rowley . Parents of students with disabilities have argued that FAPE requirements have been changed by NCLBA in several cases but have not been successful. Similarly, an unsuccessful argument has been made that there is an inherent conflict between IDEA and NCLBA.

Peer-Reviewed Research

The 2004 Amendments to IDEA include a requirement that specially designed instruction and related services be "based on peer-reviewed research to the extent practicable." Commentary to the final regulations indicates that peer-reviewed research "generally refers to research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published." Similar to the educational standards issue discussed above, it could be argued that the peer-reviewed research requirement is difficult to reconcile with Rowley's some educational benefit requirement.

At least one court of appeals has addressed this issue. In Joshua A. v. Rocklin U nified School District, the student argued that his IEP violated IDEA because it was not based on peer-reviewed research. The court rejected this argument finding that the school's "eclectic approach" was sufficient and noted that "[w]e need not decide whether District made the best decision or a correct decision, only whether its decision satisfied the requirements of the IDEA." The court also emphasized that courts must be careful to avoid imposing their view of preferable educational methods upon the states.

The Individualized Education Program (IEP)

Statutory Provisions

After a child has been identified as a child with a disability under IDEA, an Individualized Education Team is formed to write an individualized education program for the child. IDEA contains detailed requirements for the IEP. The IEP must include a statement of the child's present levels of academic achievement and functional performance; a statement of measurable annual goals; a description of how these goals are to be met; a statement of the special education and related services to be provided; and an explanation of the extent to which the child is to be educated with children without disabilities. Since the IEP is the way FAPE is implemented, it is a key component of IDEA and has been the subject of numerous judicial decisions. Generally, these cases have adopted the Rowley two-part inquiry: first, the court determines whether IDEA's procedures have been complied with; second, the court determines whether the IEP is reasonably calculated to provide the child with educational benefits.

Lower Court Decisions

The exact parameters of an IEP have been the subject of several decisions. Generally, an IEP does not have to be "perfect" to be in compliance with IDEA, but must be "reasonably calculated to enable the child to receive educational benefits." In School Board of Independent School District No. 11 v. Joshua Renollett, the Eighth Circuit court of appeals found that although there were some flaws in the child's IEP, since these flaws did not compromise his right to an appropriate education or deprive him of educational benefits, there was no violation of IDEA. Similarly, the Second Circuit in Cabouli v. Chappaqua Central School District found that the evidence supporting the adequacy of the IEP, including the child's recent social progress, indicated that the child would likely make educational progress under the IEP and, therefore, there was no violation of IDEA. The lack of a functional behavioral assessment in an IEP does not necessarily mean that the IEP is invalid. The Sixth Circuit in Nack v. Orange City School District found that procedural violations that did not cause the student any substantive harm were not a violation of IDEA. In addition, the court in Nack also held that a lack of progress during one school year does not necessarily indicate an IDEA violation since IDEA does not guarantee success, but requires that a student receive sufficient specialized services to benefit from his or her education.

On the other hand, courts have found that an IEP which does not provide the child with educational benefits violates IDEA. In A.K. v. Alexandria City School Board, the Fourth Circuit held that an IEP which stated that the child should be placed at an unidentified private day school was not reasonably calculated to provide educational benefits and, therefore, was a violation of IDEA. And in M.L. v. Federal Way School District , the Ninth Circuit found that not including a regular education teacher on the IEP team resulted in a "loss of educational opportunity" that amounted to a denial of FAPE. However, in R.B. v. Napa Valley Unified School District , the Ninth Circuit held that IDEA did not require the participation of the child's current special education teacher as long as a special education teacher who has actually taught the child was present.

The input of parents in an IEP has been the subject of several recent decisions. Generally, courts have held that "the right of parents to control the content of the IEP is limited." For example, in Shelby S. v. Conroe Independent School District , the Fifth Circuit found that in order to develop an appropriate IEP, the school could perform an independent medical evaluation despite a lack of parental consent. And in Lessard and Lessard v. Wilton-Lyndeborough Cooperative School District and New Hampshire Department of Education, the First Circuit held that an IEP was not procedurally deficient due to incompleteness and noted, "[l]ine-drawing is often difficult, and in the IEP context it is impossible to draw a precise line separating healthy requests for parental input from impermissible demands that parents do the school system's work."

Despite the limited control of parents over the IEP, courts have found for the parents in IEP cases. For example, in County School Board of York County v. A.L. , the Fourth Circuit found that a lack of prior notice to a proposed IEP change and a failure to inform the parents of their due process rights violated IDEA. Similarly, a finding that the school district determined the child's placement before the IEP meeting was found to violate IDEA's procedural requirements. A school's scheduling of an IEP meeting without first inquiring about the parents' availability and the school's denial of the parents' request to reschedule was found to deny the student FAPE.

Related Services

As noted above, IDEA's requirement of a free appropriate public education is the cornerstone of the act. FAPE is defined in part as requiring "special education and related services." Related services are defined as meaning

transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposed only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

Two Supreme Court decisions under IDEA have involved the concept of related services, and both have involved the issue of what is a medical service. In Irving Independent School District v. Tatro , the Court examined the case of an eight-year-old girl with spina bifida who required clean intermittent catheterization (CIC), and held that the school must provide the service. The Court held that services affecting both the medical and educational needs of a child must be provided under IDEA if (1) the child has a disability so as to require special education; (2) the service is necessary to help a child with a disability benefit from special education; and (3) a nurse or other qualified person who is not a physician can provide the service. Services that could be provided outside the school day would not need to be provided. Tatro drew a bright line between services that had to be provided by a doctor and those that could be provided by a person who was not a physician. However, after Tatro , some courts of appeal did not apply this bright line but used other factors, such as the nature and extent of services. This set the stage for another Supreme Court decision in 1999, Cedar Rapids Community School District v. Garret F .

Garret F. involved a child who was paralyzed from the neck down as a result of a motorcycle accident when he was four years old. Since the child was ventilator dependent, he required substantial services including providing suction on his tracheotomy tube and manually pumping air through an air bag when suction is being provided. The school denied the parents' request for services, and proposed a test for related services in which the outcome would depend on a series of factors, such as whether the care was continuous and the cost of the services. The Court rejected this proposed test and used the same reasoning it had used in Tatro, finding that the medical services exclusion from the definition was limited to the services of physician or a hospital. This holding, the Court stated, was in keeping with the overarching purpose of IDEA "to open the door of public education to all qualified children."

The 2004 reauthorization dealt with this issue by establishing risk pools for high-need children with disabilities. States are permitted to reserve 10% of the funds reserved for other state activities (or 1% to 1.05% of the overall state grant) to establish and maintain a risk pool to assist LEAs serving high-need children with disabilities. Related services have not given rise to a large number of recent IDEA cases. Generally, the cases have emphasized the broad discretion of a federal court to define what services are required to enable a child with a disability to benefit from special education, and have applied the Tatro analysis.

Least Restrictive Environment

IDEA requires that children with disabilities, to the maximum extent appropriate, be educated with children who are not disabled and that separate schooling or special classes occur only when the nature or severity of the disability is such that "education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."

Several recent courts of appeal decisions have followed a two-pronged approach, first enunciated in Daniel R.R. v. State Board of Education , to determine whether an IEP places a student in the least restrictive environment. First, a court must consider whether education in the regular classroom with the use of supplementary services can be achieved satisfactorily. Second, if such placement cannot be achieved satisfactorily, the court must consider whether the school has mainstreamed the child to the maximum extent appropriate. The first prong includes several factors: whether the school district has made reasonable efforts to accommodate the child in the regular classroom; the educational benefits available to the child in the regular classroom as compared to those in a special education classroom; and the possible negative effects of the inclusion of the child on other students in the regular classroom. In A.G. v. Durtan, the Third Circuit examined the effect of the child with a disability on other students, noting the student's frequent, loud vocalizations, combined with removal of shoes and socks, inappropriately clapping and grinding her teeth, having difficulty toileting, and inappropriately touching other students. Although these disruptions were not considered dispositive, the court considered them notable and upheld the district court decision that the student could not be satisfactorily educated full time in a regular classroom.

Stay Put

In enacting P.L. 94-142 , the original version of IDEA, Congress provided grants to the states to help pay for education for children with disabilities, and also delineated specific requirements the states must follow to receive these federal funds. This public law contained a requirement that if there is a dispute between the school and the parents of a child with a disability, the child "stays put" in his or her current educational placement until the dispute is resolved using the due process procedures set forth in the statute. The concept of "stay put" was placed in the statute to help eliminate the then common discriminatory practice of expelling children with disabilities from school. A revised "stay put" provision remains as law in the current version of IDEA.

In 1988, the question of whether there was an implied exception to the "stay put" rule was presented to the Supreme Court in Honig v. Doe . Honig involved emotionally disturbed children, one of whom had choked another student with sufficient force to leave abrasions on the child's neck and who had kicked out a window while he was being escorted to the principal's office. The other child in the Honig case had been involved in stealing, extorting money, and making lewd comments. The school had sought expulsion, but the Supreme Court disagreed finding that "Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school." However, the Court observed that this holding did "not leave educators hamstrung.... Where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days.... And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under section 1415(e)(2), which empowers courts to grant any appropriate relief." This statement about the school's right to seek judicial relief has come to be know as a Honig injunction.

The Supreme Court's interpretation of IDEA in Honig did not quell all concerns about discipline and children with disabilities. In 1994, Congress amended IDEA's "stay put" provision to give schools the unilateral authority to remove a child with a disability to an interim alternative educational setting if the child was determined to have brought a firearm to school. This provision was expanded in the IDEA Amendments of 1997 to include weapons (not just firearms) and drugs, and was further expanded in the 2004 reauthorization to include situations where a student has inflicted serious bodily injury upon another person while at school.

Not all issues regarding the stay put provisions have involved disciplinary actions. Several courts have addressed the issue of whether the stay put requirement applies when a child is transitioning from Part C of IDEA to Part B. Part B of IDEA applies to school-aged children and requires the provision of FAPE as delineated in an IEP; Part C of IDEA applies to infants and toddlers and requires the provision of appropriate early intervention services as set forth in an individualized family service plan (IFSP). Rejecting an opinion by the Office of Special Education Programs (OSEP) of the Department of Education, the Third Circuit in Pardini v. Allegheny Intermediate Unit held that the stay put provision requires the child "to continue to receive conductive education until the dispute over its appropriateness for inclusion in her IEP was resolved." However, the Eleventh Circuit in D.P. v. School Board of Broward County disagreed, finding that the children in that case were applying for initial admission to a public school program and that they were not entitled to continue to receive services pursuant to their IFSPs.

Other issues regarding the stay put provision have involved mediation, private school placement, a move from a resource room to a classroom, and the appeals process in the courts. Sammons v. Polk C ounty School Board raised the issue of whether a request for mediation invokes the stay put provision. The Eleventh Circuit held that the IDEA regulations limited the application of the stay put provision to the pendency of administrative or judicial proceedings and, therefore, it was not applicable to a request for mediation. In L.M. v. Capistrano Unified School District , the Ninth Circuit held that a child who had not had an implemented IEP, and had never been placed in a public school, but was unilaterally placed in a private school by his parents, could not use the stay put provision to continue private school placement. Similarly, although the IEP team recommended that a child be placed in a private school in the fall, when the district contested the IEP teams recommendation, the court in E.Y. v. Elysian Charter School of Hoboken held that the placement where the child was to "stay put" was the placement for the preceding school year. A child's relocation from a resource room to an inclusion classroom was not found to constitute a change in placement within the meaning of the stay put provision. In Joshua A. v. Rocklin Unified School District , the Ninth Circuit held that the stay put provision applied throughout the appeals process in the courts.

An attempt to apply a novel application of the stay put provision failed in N.D. v. State of Hawaii . Due to major fiscal concerns, the state of Hawaii decided to furlough teachers and shut down the public schools for 17 Fridays in the 2009-2010 school year. Since this meant an approximate reduction of 10% in instruction days, plaintiffs filed suit, alleging that this reduction violated the stay put provision of IDEA. The Ninth Circuit found no violation, holding that the stay put provision was not intended to cover system-wide changes in public schools that affect children with and without disabilities.

Seclusion and Restraints

The use of seclusion and restraints has been the subject of increased congressional interest, and on March 3, 2010, the House passed H.R. 4247 , the "Keeping all Students Safe Act." A similar bill, S. 2860 , was introduced in the Senate. IDEA provides that when the behavior of a child with a disability impedes the child's learning or the learning of others, the IEP team must consider "the use of positive behavioral interventions and supports, and other strategies, to address that behavior." Nothing in IDEA specifically addresses the use of seclusion and restraints, and the Department of Education has stated that "[w]hile IDEA emphasizes the use of positive behavioral interventions and supports to address behavior that impedes learning, IDEA does not flatly prohibit the use of mechanical restraints or other aversive behavioral techniques for children with disabilities." The Department also noted that state law may address whether restraints may be used and, if restraints are allowed, the "critical inquiry is whether the use of such restraints or techniques can be implemented consistent with the child's IEP and the requirement that IEP Teams consider the use of positive behavioral interventions and supports when the child's behavior impedes the child's learning or that of others."

The Supreme Court has not specifically addressed the use of seclusion or restraints under IDEA; however, in Honig v. Doe, the Court examined IDEA's requirements for children who exhibited violent or inappropriate behavior, and held that a suspension longer than ten days violated IDEA's "stay-put" provision. In Honig , the Court observed that this decision "does not leave educators hamstrung" and that educators may utilize "normal procedures" which "may include the use of study carrels, timeouts, detention, or the restriction of privileges" as well as a ten-day suspension.

Despite the lack of specific language in IDEA regarding the use of restraints and seclusion, cases have been brought alleging that their use violates a child's right to a free appropriate public education. Generally, courts have not found violations of IDEA where the seclusion or restraint was deemed necessary to keep the child from hurting himself or others, or where the child was progressing academically and the school had tailored the child's IEP to address behavioral issues. Courts have examined whether the administrative exhaustion requirements of IDEA apply in situations involving the use of seclusion and restraint. In C.N. v. Willmar Public Schools, the child's IEP and behavior intervention plan allowed for the use of seclusion and restraint procedures when the child was a danger to herself or others; however, the parents alleged that these procedures were used improperly and excessively. The parents withdrew their daughter from the school and placed her in another school. After her withdrawal, the parents requested a due process hearing, challenging the adequacy of the educational services. The Eighth Circuit affirmed the district court's dismissal of the case, finding that if the parent was dissatisfied with the child's education, she must follow the IDEA due process procedures and file for a due process hearing while the child was still in the school district against which the complaint was made.

In contrast, IDEA has been used by parents in an attempt to enjoin enforcement of a New York State regulation that banned the use of "aversive interventions." Parents argued in part that "some students' IEP's were being revised without parental consent or simply not revised for the new school year, the effect of which was to deprive those students of aversive therapies." The Second Circuit vacated the district court's injunction against the regulation and remanded for further findings. On remand, the district court upheld the regulations finding that "the regulations represent an informed, rational choice between two opposing schools of thought on the use of aversives…. [T]he regulations are neither arbitrary nor capricious, and are consistent with the purposes of the IDEA."

Retaliation and Harassment

Although harassment is not explicitly prohibited in IDEA, the Department of Education has stated that disability harassment may result in a denial of FAPE. Several courts have held that harassment may be so severe that the child with a disability is denied access to educational benefits and that, therefore, IDEA is violated. However, at least one court has found that the claim of harassment must be tied to IDEA and should clearly state that the harassment has denied the child FAPE. In addition, another court held that claims regarding retaliation are subject to IDEA's requirements for exhaustion of administrative remedies.

The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act may also give rise to actions alleging retaliation for advocacy alleging violations of IDEA. Several circuits have held that "attempting to protect the rights of special education students constitutes protected activity under the Rehabilitation Act."

Due Process Procedures

Overview

Section 615 of IDEA provides detailed procedural safeguards for children with disabilities and their parents. Procedural safeguards are provisions protecting the rights of parents and children with disabilities regarding a free appropriate public education (FAPE) and include notice of rights, mediation, resolution sessions, and due process procedures. Parents of a child with a disability or a school may file a due process complaint. This complaint may only be presented concerning violations that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action. The 2004 reauthorization added the provision allowing schools to also file complaints and there have been several instances where a school district has used this authority. After an administrative decision, any party aggrieved by the findings may file suit in district court but must do so within 90 days.

Resolution Sessions and Mediation

In an attempt to resolve issues before the more confrontational due process proceedings, the 2004 reauthorization of IDEA added a requirement for a resolution session prior to a due process hearing. This preliminary meeting involves the parents, the relevant members of the IEP team, and a representative of the local educational agency who has decision making authority. The LEA may not include its attorney unless the parent is accompanied by an attorney. Provisions allowing for mediation of disputes under IDEA were added in the 1997 reauthorization and retained in the current law. In addition, the 2004 IDEA reauthorization provided for judicial enforcement of agreements reached through a resolution session or mediation.

Several judicial decisions have addressed issues regarding the resolution session. One court held that the information disclosed during the resolution session is not confidential since the statute does not specifically confer confidentiality and the resolution session discussions are not settlement discussions. Another decision examined the inclusion of a school board attorney when a parent did not have an attorney present, and found that the limitation on the presence of an attorney is only for the preliminary meeting, not for the writing of a settlement decision. As noted previously, procedural violations in a resolution session do not violate FAPE if there was not a substantial effect on the child's educational opportunities.

Several courts have examined the question of whether all settlement agreements are enforceable in federal court or whether judicial enforcement is limited to agreements reached through dispute resolution or mediation. Generally, the courts have held that the statutory language limits judicial enforcement to those agreements reached through dispute resolution or mediation.

In Amy S. v. Danbur y , the Sixth Circuit held that mediation agreements signed by the parents, who were represented by counsel, precluded a claim. The parents had alleged that the school had breached the mediation agreement since the agreed upon tutor could no longer transport the child in his car. The court rejected this argument, noting that tutoring services were still available. Similarly, in Ballard v. Philadelphia School District , the court rejected an argument by a parent that a settlement agreement was invalid.

Review of Complaint's Sufficiency

IDEA requires that a due process complaint include, in addition to other information, a description of the nature and the problem, the relevant facts, and a proposed resolution of the problem. In Knight v. Washington School District , a district court addressed issues relating to the review of the hearing officer's determination that a due process complaint did not meet IDEA's pleading requirements. The district court quoted from the Senate report language which stated in part that the determination of whether the due process complaint notice met the statutory requirements "shall be made on the face of the complaint" and "[t]here should be no hearing or appeal in regard to the hearing officer's determination." Although finding that it had no jurisdiction to determine the adequacy of the complaint notice, the court noted that this was "an unsatisfying outcome for Plaintiffs" and found it "troubling that a state official's summary dismissal of a complaint founded on federal law, for which federal law provides that applicable standard, appears to be unreviewable in federal court." The Eighth Circuit affirmed the district court's dismissal of the action but modified the dismissal to be without prejudice.

LEA Suits Against the State

Several courts of appeal have addressed the issue of whether an LEA may bring an action against an SEA for its failure to comply with IDEA and found that IDEA does not allow such a private right of action. In Traverse Bay Area Intermediate School District v. Michigan Department of Education, the Sixth Circuit held that LEAs did not have statutory authority to challenge a state agency's alleged noncompliance with IDEA's procedural safeguards. Noting that a right to bring suit is created by the text of a statute, the court found that IDEA limited complaints to matters relating to the identifications, evaluation, or educational placement of a child. Similarly, the Ninth Circuit in Lake Washington School District No. 414 v. Washington State Office of Administrative Hearings, held that an LEA has no private right of action under IDEA to litigate any issue other than the issues raised by the parents on behalf of their child.

Parental Rights

In Winkelman v. Parma City School District , the Supreme Court examined the issue of whether IDEA permits parents who are not attorneys to bring suit in court, either on their own behalf or as representatives of their child. The Court held that such pro se suits were permitted for parents suing with regard to their own rights. In an opinion written by Justice Kennedy, the Court concluded that IDEA grants parents independent, enforceable rights that encompass a child's entitlement to a free appropriate public education, and that these rights are not limited to procedural or reimbursement issues.

In arriving at this holding, Justice Kennedy observed that "a proper interpretation of the Act requires a consideration of the entire statutory scheme." The Court examined IDEA's statutory language, noting that one of the purposes of IDEA is "to ensure that the rights of children with disabilities and parents of such children are protected." This language was found to refer to rights for both parents and children with disabilities. Similarly, the Court found that the establishment of procedural rights was required "to ensure that the rights of children with disabilities and parents of such children are protected." These provisions were found to support the finding that the parents of a child with a disability have "a particular and personal interest" in the goals of IDEA and that "IDEA includes provisions conveying rights to parents as well as to children."

The rights that IDEA provides for parents were found to encompass not only procedural but also substantive rights. Justice Kennedy observed, "IDEA does not differentiate, through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents." It was argued that granting these rights would increase the costs to the states because parents may bring more lawsuits if they do not have the financial constraint of paying for an attorney. However, the Court found that these concerns were not sufficient to support an argument under the Constitution's Spending Clause that IDEA failed to provide clear notice before a new condition or obligation was placed on a recipient of funds. In addition, Justice Kennedy observed that IDEA specifically allows courts to award attorneys' fees to a prevailing educational agency when a parent has brought an action for an "improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation."

The Supreme Court's emphasis on a parent's own rights has led courts to conclude that, although a non-attorney parent cannot pursue claims on behalf of his child, he may amend the complaint to assert his own claims. In addition, a parent was found to have "personal rights to enforce FAPE" and, thus, survived an attempt to dismiss her claim. However, a parent may not use his or her rights in order to circumvent an existing consent decree involving the same issues. In addition, the mere assertion that the rights are those of the parents may not be sufficient. In Woodruff v. Hamilton Township Public Schools, the Third Circuit found that although the parents had filed an amended compliant purporting to assert their claims only, the claims asserted were not personal to the parents and, therefore, the parents' complaint was properly dismissed.

Parental rights, as determined by Winkelman , have been extended by some courts to cases brought under Section 504 and the ADA as well as IDEA. However, not all courts have agreed with this interpretation. In D.A. and M.A. v. Pleasantville School District , the court found that Winkelman reflected the specific language and structure of IDEA with its emphasis on parental involvement and was, therefore, not applicable to Section 504 and the ADA.

Other parental rights issues are not as directly tied to the Winkelman decision. The issue of whether a parent could recover damages under IDEA for lost earnings and suffering incurred while successfully pursuing her child's IDEA claim was raised in Blanchard v. Morton School District. The Ninth Circuit noted that money damages were not available for a child with a disability, and that "IDEA does not contemplate the remedy Blanchard seeks and in that regard creates no right enforceable under §1983." The Second Circuit addressed the issue of the rights of a noncustodial parent in Fuentes v. Board of Education of New York City . IDEA defines the term "parent," and the IDEA regulations expand upon the statutory language stating that a parent is presumed to be the parent unless he or she does not have legal authority to make educational decisions for the child. The Fuentes court emphasized the regulatory language and found that the noncustodial biological parent did not have the legal authority to make educational decisions.

Section 504 and the Americans with Disabilities Act (ADA)

IDEA is not the only federal statute to address the education of children with disabilities, although it is the most detailed in its provisions. Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) address the rights of individuals with disabilities to education. Although there is overlap, particularly with Section 504 and the ADA, each statute plays a significant part in the education of individuals with disabilities. IDEA, enacted in 1975, is both a grants statute and civil rights statute and requires programs for children with disabilities that are in addition to those available to children without disabilities. Section 504, enacted in 1973, and the ADA, enacted in 1990, are civil rights statutes that prohibit discrimination against individuals with disabilities. Their coverage is similar, and the ADA was modeled on Section 504 and its regulations; however, Section 504 only applies to entities that receive federal financial assistance, while the ADA has broader coverage, not tied to the receipt of federal funds. As noted in D.A. v. Houston Independent School District, "[e]xactly what remedies remain under 504 and the ADA for children whose parents are dissatisfied with the school's determinations under IDEA are unclear." Although a detailed analysis of the educational coverage of these statutes is beyond the scope of this report, it should be noted that several courts have examined issues presented by the interaction of the statutes, noting differences in coverage.

Burden of Proof

IDEA contains detailed due process requirements to ensure the provision of FAPE. These include the opportunity for an impartial due process hearing. However, the statute contains no specific provision relating to which party has the burden of proof in a due process hearing, and the courts of appeal, prior to the Supreme Court's decision in Schaffer v. Weast , were split in their interpretations of who bore the burden of proof.

The Supreme Court in the 2005 case of Schaffer v. Weast held that the burden of proof regarding an allegedly inadequate IEP in an IDEA due process hearing rests with the party seeking the relief. The Supreme Court, in an opinion by Justice O'Connor, first observed that "absent some reason to believe that Congress intended otherwise, ... we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief." Justice O'Connor then examined, and rejected, various reasons advanced to support the argument that the burden of proof should be on the school system. The Supreme Court noted that the most plausible argument advanced by the parents was that, in the interest of fairness, the burden of proof should not be placed on a party when the facts are "peculiarly within the knowledge of his adversary." School districts were seen as having a "natural advantage" regarding the information, but Justice O'Connor did not find this to be determinative because "Congress addressed this when it obliged schools to safeguard the procedural rights of parents and to share information with them." The Court noted that IDEA provides parents with the right to review records; to have an independent educational evaluation; to have details about options considered by the school district as well as disclosure of evaluations and recommendations; and to receive attorneys' fees in the discretion of a court if they prevail. Justice O'Connor concluded that "[t]hese protections ensure that the school bears no unique informational advantage."

Remedies

Private Schools

Issues concerning what services are required for children with disabilities placed in private schools, and who is to pay for these services, have been a continuing source of controversy under IDEA. Under current law, a child with a disability may be placed in a private school by the local educational agency (LEA) or state educational agency (SEA) as a means of fulfilling the FAPE requirement for the child. In this situation, the full cost is paid for by the LEA or the SEA. A child with a disability may also be unilaterally placed in a private school by his or her parents. In this situation, the cost of the private school placement is not paid by the LEA unless a hearing officer or a court makes certain findings. However, IDEA does require some services for children in private schools, even if they are unilaterally placed there by their parents. IDEA, as amended, states in part,

(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT.—If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of the enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

The current statutory provisions regarding private schools are the result of several major amendments, and the majority of the Supreme Court decisions on private schools were decided prior to the statutory changes. However, two recent Supreme Court cases have addressed the question of whether IDEA allows for tuition reimbursement for parents who placed their child in a private school without ever having received special education from the public school. In the 2007 decision Board of Education of the City School District of the City of New York v. Tom F. , the Court, dividing 4-4, allowed an appeals court ruling on private school reimbursement to stand. The court of appeals had held that parents of a child with a disability are entitled to private school reimbursement even though the student had never received special education services from the school district. The Court's per curiam decision did not set a precedent for lower courts, and therefore the issue about whether reimbursement for private school tuition may be made when the child has not received public special education services remained unsettled. On October 15, 2007, the Supreme Court denied certiorari in another case presenting the same issue. However, on June 22, 2009, the Supreme Court held in Forest Grove School District v. T.A . that IDEA authorized reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school.

Recent lower court decisions have held that if the child is making some educational progress and the public school has provided an IEP calculated to provide for continued progress, the requirements of FAPE are met and the child is not entitled to a private school placement. For example, in M .H. and J.H. v. Monroe-Woodbury Central School District , the court found that the child's IEP was adequate and, therefore, the parents were not entitled to tuition reimbursement for a private school placement. These same standards have been applied when parents seek to place their child in a private school different from the private school where the school district has placed the child. In addition, if a private school does not adequately address the child's educational needs, the court may not require private school tuition reimbursement. However, the mere fact that the private school contains a large percentage of children with disabilities does not make it an inappropriate placement despite IDEA's preference for educating children with disabilities in the least restrictive environment.

Courts have held that reimbursement for private school tuition is barred if parents arrange for private school educational services without notifying the LEA of their problems with their child's IDEA services. Reimbursement is also barred if the parents act unreasonably in their relations with the school or if the allegation concerns procedural violations that do rise to a level of substantive harm. The parents are not barred from private school tuition reimbursement, however, if the child has not previously received special education services.

Compensatory Education

If a school district is found to have deprived a child with a disability of FAPE, the child may be entitled to private school reimbursement, as was discussed previously, or the child may be entitled to receive compensatory education. Essentially, compensatory education is the award of prospective educational services designed to compensate for a previous inadequate program, and is derived from the 1985 Supreme Court's private school ruling in School Committee of the Town of Burlington v. Department of Education of Massachusetts. In Burlington , the Court held that parents who place a child in a private school when the public school program violates FAPE may obtain reimbursement for the private school tuition. Lower courts have used this holding to find that if financial reimbursement is allowed, compensatory services must also be allowed.

However, allowing such a remedy is not without some ambiguity. Courts have differed in how the award of compensatory education is to be made. Some courts have found that the child is entitled to compensatory education for the same amount of time that appropriate services were withheld. Other courts have adopted an "equitable focus" which rejects a day for day approach and emphasizes the need of the student to be appropriately educated under IDEA. In addition, the IEP applicable to children receiving compensatory education may also need to provide more services than might be required in a general IEP since the IEP for children receiving a compensatory education must be created to compensate for the denial of appropriate education.

Section 1983 Actions

Section 1983 authorizes suits against state officials and others acting "under color" of state law for deprivation of rights derived from the "Constitution and laws" of the United States. Generally, courts have found that the IDEA procedural remedies must be exhausted prior to the filing of a §1983 action. The application of section 1983 with its damages for pain and suffering to IDEA is unclear. Some courts have held that IDEA's statutory scheme does not allow for damages. However, other courts have allowed damages.

Attorneys' Fees

Background

Although the original version of IDEA, P.L. 94-142 , contained no specific provision for attorneys' fees, prevailing parties used section 505 of the Rehabilitation Act of 1973, or section 1988 of the Civil Rights Attorneys' Fees Award Act, to seek fees. However, the Supreme Court in Smith v. Robinson held that the only remedies for prevailing parties under IDEA were those contained in that statute. The statute was described as "a comprehensive scheme set up by Congress to aid the States in complying with their constitutional obligations to provide public education for handicapped children." The Court further noted that allowing the use of other statutes to provide for attorneys' fees would "be inconsistent with Congress' carefully tailored scheme."

The Court's decision in Smith v. Robinson was controversial. In response, Congress in 1986 enacted the Handicapped Children's Protection Act, which provided for attorneys' fees under IDEA. These provisions were amended in 1997. The P.L. 105-17 amendments allowed the reduction of attorneys' fees if the attorney representing the parents did not provide the LEA with timely and specific information about the child and the basis of the dispute, and specifically excluded the payment of attorneys' fees for most individualized education plan (IEP) meetings. The 2004 IDEA reauthorization, P.L. 108-446 , kept many of the previous provisions on attorneys' fees but also made several additions. These include allowing attorneys' fees for the state educational agency (SEA) or the local educational agency (LEA) against the parent or the parent's attorney in certain situations.

The ADA allows a court, in its discretion, to award attorneys' fees to a prevailing party. In Buckhannon Board and Care Home, Inc., v. West Virginia Department of Human Resources , the Supreme Court addressed the "catalyst theory" of attorneys' fees which posits that a plaintiff is a prevailing party if the lawsuit brings about a voluntary change in the defendant's conduct. The Court rejected this theory finding that attorneys' fees are only available where there is a judicially sanctioned change in the legal relationship of the parties.

Lower Court Decisions

Courts have consistently applied Buckhannon to the attorneys' fees provision in IDEA. In several cases, attorneys' fees have been given to the party who prevailed in administrative proceedings, provided that result was legally enforceable, although attorneys' fees have not been awarded for resolution sessions. Additionally, attorneys' fees have been given to the prevailing party in judicial proceedings, even if the party prevails because of a dismissal on the merits. Attorney fees have also been awarded without a finding of a denial of FAPE when an LEA has misclassified the child's disability. However, where a child has not yet been determined to be a child with a disability under IDEA, attorneys' fees have not been awarded, even where the fees were sought for a failure to refer for assessments to determine eligibility and failure to identify the child as a child with a disability.

Courts will only award attorneys' fees for relief obtained through a settlement agreement if that agreement received judicial approval. Attorneys' fees will not be awarded for voluntary settlements or purely private settlement agreements that are not judicially sanctioned or do not require judicial approval to take effect. Also, in Drennan v. Pulaski County Special School District , a party was not awarded attorneys' fees when it had not performed certain duties that were ordered by the court as a precondition of receiving relief from the school district. Attorneys' fees also will not be awarded to parties for representation by consultants or by parent-attorneys. However, attorneys' fees may be awarded to relatives other than parents, such as a grandparent.

Courts have great discretion when deciding the amount of attorneys' fees to award to a prevailing party. Based on the degree of success that is achieved by a party, a court may decide to award less than the full amount of attorneys' fees requested by the party. Courts have denied or reduced the party's attorneys' fees because the party rejected a settlement offer from the school district but accomplished little more in court than was offered in the proposed settlement. However, the Fifth Circuit has held that refusal to attend a meeting when a proposed settlement has not been offered does not mean that the award should be reduced because the plaintiff unreasonably protracted the proceedings. Additionally, Congress first imposed a fee cap on IDEA cases brought in the District of Columbia in FY1999 through a provision in the annual District of Columbia Appropriations Act, and a cap has been part of every subsequent D.C. appropriations act since that time.

The 2004 IDEA reauthorization added a provision stating that in "any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees ... to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation.... " In El Paso Independent School District v. Berry , the Fifth Circuit found that the award of attorneys' fees to the LEA was permissible against a lawyer who refused to accept all offered relief, and used stonewalling tactics to refuse to allow the district to evaluate the student. However, the sixth circuit found that this fee-shifting provision did not apply to private schools. The mere fact that the parents do not prevail in court does not make the parents' action frivolous. The Ninth Circuit noted that "[l]awyers would be improperly discouraged from taking on potentially meritorious IDEA cases if they risked being saddled with a six-figure judgment for bringing a suit where they have a plausible, though ultimately unsuccessful, argument…."

Several of the cases discussing the fee-shifting provision have examined whether the LEA was the prevailing party. In El Paso Independent School District v. Richard R, the Fifth Circuit held that although the school district prevailed in successfully arguing for a reduction in the attorneys' fees awarded to the plaintiff, the school district did not prevail on the educational issues and thus was not entitled to attorneys' fees. Similarly, in District of Columbia v. Straus, the D.C. Court of Appeals refused to award fees for the school district because the school district was not found to be a prevailing party. The hearing officer had dismissed the case after the school district had agreed to pay for the requested evaluation, and the court noted that "[i]f the District were considered a prevailing party under these circumstances, then DCPS could ignore its legal obligations until parents sue, voluntarily comply quickly, file for and receive a dismissal with prejudice for mootness, and then recover attorney's fees from the parents' lawyers."

Expert Witness Fees

Although there is no specific provision allowing a court to award to expert witness fees to prevailing parents, the language regarding attorneys' fees has been interpreted by some lower courts to allow such an award. IDEA's statutory language states in relevant part: "in any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs—(I) to a prevailing party who is the parent of a child with a disability."

The parents in Arlington Central School District v. Murphy argued that the language on costs encompassed the payment of expert witness fees. To support this argument, they pointed to the legislative history of the Handicapped Children's Protection Act, which stated that "[t]he conferees intend that the term 'attorneys' fees as part of the costs' include reasonable expenses and fees of expert witnesses." The Supreme Court, in a decision written by Justice Alito, held that IDEA does not authorize prevailing parents to recover fees they have paid to experts. The majority opinion first observed that the holding was "guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause." This was seen as significant because if Congress attaches conditions to a state's acceptance of funds, the conditions must be unambiguous and provide clear notice. The majority concluded that IDEA's statutory language did not provide this clear notice and that the legislative history was unconvincing and "simply not enough" under these circumstances.

H.R. 1208 and S. 613 were introduced in the 112 th Congress to amend IDEA to include the fees of expert witnesses. They specifically provided that "the term 'attorneys' fees' shall include the fees of expert witnesses, including the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian's case in the action or proceeding."

Systemic Compliance Complaints

IDEA has two separate means of resolving disputes: (1) the impartial due process procedures and (2) the state complaint resolution system, and the state complaint regulations specifically allow complaints by "any organization or individual." In addition, the Department of Education is responsible for monitoring implementation of IDEA. At least one court of appeals decision has addressed a systemic complaint under IDEA's due process procedures. In addition, the Ninth Circuit in Lake Washington School District No. 414 v. Washington State Office of Administrative Hearings, rejected an LEA's suit against the SEA finding that it had no private right of action to challenge a state's "systematic violation of the IDEA."

In 1975, Congress established a protection and advocacy system (P & A's) to advocate and protect the rights of individuals with developmental disabilities. Many of the court cases filed by P & A's are class action lawsuits aimed at systemic violations of the rights of an individual and a number of these cases have involved special education students. These cases have often involved issues concerning the P & A's access to student records.