When things go wrong in special education and a student has not received the benefit of his/her educational program, the student is awarded compensatory education for the denial of a free appropriate public education (“FAPE”).  Compensatory education is a judicially-constructed remedy that offers prospective education services designed to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA.  An award of compensatory education may extend the disabled student’s right to FAPE beyond age twenty-one.  Much of the controversy over compensatory education is over the nature and extent of the educational services.  Does a compensatory education award provide a disabled student an unfettered right to use the award proceeds for college tuition?

No.  Compensatory education should reflect that which would have accrued from special education services the school district should have supplied to the student. The authority to award compensatory education is vested in the courts authority to formulate an appropriate remedy that effectuates the purpose of IDEA.  Recently, Judge Kane, of the Middle District Court of Pennsylvania held that a hearing officer’s order for “specific developmental, remedial, or enriching educational services reasonably calculated to provide the student the educational benefits” did not include college tuition.  Stapleton v. Penns Valley Area Sch. Dist.  2017 U.S. Dist. LEXIS 204143, (M.D. Pa. December 12, 2017).  Judge Kane reasoned that a post-secondary degree does not further the purpose of compensatory education by placing the student in the “same position he/she would have occupied but for the school district’s violations of the IDEA.

In the Stapleton case, the student was awarded compensatory education hours and requested the school district to establish a fund of $75,000.00 for “educational purposes after he turns twenty-one.”  The school district refused to establish the requested fund at the rate of $75.00 per hour but informed the family that it would agree to comply with the order of the hearing officer.  Initially, the student utilized the award for tutoring services instructional support in reading.  No further request was made by the student to use the compensatory education hours until he sought to use the award to cover the costs of college tuition.  The school district requested information from the student on how the proposed use for college tuition linked to the goals of the student’s previous IEP.  The student filed an enforcement action in federal court asserting that the award contemplated a monetary payout for an unused portion of the compensatory education award to satisfy college tuition and expenses.  The Court disagreed.  “The authority to grant equitable relief is subject to the limitation that the relief is appropriate to the purpose of IDEA.”

This decision provides helpful guidance on the equitable remedy of compensatory education.  School districts must be careful in overseeing the use of compensatory education awards and/or in crafting settlement agreements to clearly define the legitimate use of compensatory education.  The MB&M education team has the expertise to assist you in reviewing and drafting compensatory education agreements.

Christina L. Lane
Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.