Compensatory Education under the Individuals with Disabilities Education Act: The Third Circuit's Partially Mis-Leading Position

Abstract:     
This Article evaluates and proposes revisions for the Third Circuit's approach to remedies under the federal special education statute, the Individuals with Disabilities Education Act (IDEA). The Third Circuit has been a leader in interpreting the IDEA, including its broad equitable grant of "appropriate relief." Its interpretations concerning tuition reimbursement, which is the high-stakes remedy when a parent elects to unilaterally place the child with a disability outside the public schools, have generally been well reasoned and in line with the primary purpose of the IDEA, which is to promptly provide "free appropriate public education" to children with disabilities. However, the court's criteria for compensatory education, which has become the primary remedy under the IDEA, are inconsistent with its framework for tuition reimbursement. Moreover, its view that money damages are available under the IDEA, via §1983, is at odds with both the purpose of the Act and the case law elsewhere. This Article suggests various revisions in the approach to compensatory education based on the underlying analogy to tuition reimbursement and also recommends reversing the court's position regarding money damages. The result would be a much more coherent and defensible position that would fully establish the leading role of the Third Circuit in the important area of education law.

Number of Pages in PDF File: 24

Accepted Paper Series