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Alert! Appeals Court Upholds Award of Four Years of Compensatory Ed

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March 10, 2008

ISSN: 1538-3202 Issue: 426Subscribers: 58,760

In This Issue:

Prospective Compensatory Ed in a Private School "Poor Man's Burlington Remedy" by Steve Wyner, Esq.

What is the Significance of Draper?

"A Lesser Spirit Would Have Been Crushed Years Ago"

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On March 20, 2007, the District Court of Georgia ordered the Atlanta Independent School System to pay Jarron Draper's tuition at a private special education school for four years, or until he graduated with a diploma from high school, as prospective compensatory education for their persistent failure to educate him.The Judge ruled that "Compensatory awards should compensate, and this means that they must do more than provide 'some benefit' as required by ordinary IEPs ..." Decision

The Atlanta Independent School System and Jarron appealed to the U.S. Court of Appeals for the Eleventh Circuit to resolve different legal issues. On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008). This Alert describes the case and how it will help other families and their attorneys negotiate better settlements with school districts. The Alert includes additional information about Jarron and the legal issues in these decisions.

Don't hesitate to forward this Alert to other families, friends, and colleagues.

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Prospective Compensatory Ed in a Private School

In Jarron Draper v. Atlanta Independent School District (N.D. GA 2007), the District Court held that: "Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student ... "Compensatory awards should compensate, and this means that they must do more than provide 'some benefit' as required by ordinary IEPs ... compensatory education is necessary to preserve a handicapped child's right to a free education."

The U. S. Court of Appeals for the Eleventh Circuit upheld the District Court's award of compensatory education that required the school system to pay prospective educational services provided by a private school. The Court specifically rejected the notion that the student had to prove that the public school system was incapable of providing the compensatory education.

The Court relied on the Supreme Court decisions in Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996 (1985) and Florence County Sch. Dist. Four v. ex rel. , 510 U.S. 7, 114 S.Ct. (1993), which held that school districts are required to reimburse parents for the costs of private placements in nonpublic schools when the public school failed to provide the child with an appropriate education.Relying on these decisions, the Court reasoned that the District Court had the authority to require a public school to pay the cost of prospective compensatory education that would be provided by a private school.

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"Poor Man's Burlington Remedy"

The harsh reality is that most families cannot afford to remove their child from an inappropriate public school program and pay tuition for a private placement, while also incurring the expenses of a due process hearing and subsequent litigation.

In Draper, the 11th Circuit fashioned a "poor man's Burlington remedy" for these families:"The Act does not relegate families who lack the resources to place their children unilaterally in private schools to shouldering the burden of proving that the public school cannot adequately educate their child before those parents can obtain a placement in a private school. The Act instead empowers the district court to use broad discretion to fashion appropriate relief."Read more in Poor Man's Burlington Remedy by Steve Wyner, one of Jarron's attorneys.

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What is the Significance of Draper?

In an interview with Steve Wyner, we asked what he saw as the significance of the case. He mentioned three issues.Tool to Negotiate for Quality Compensatory ServicesHe said, "this decision should help special needs families and their counsel in negotiating settlements that provide quality educational remediation when their child has been denied a free appropriate public education (FAPE)." Accordiing to Wyner, "When the school system fails to provide FAPE, the family can and should ask for compensatory education from a non public agency or school."

"Public schools often offer to provide compensatory education in the form of supplemental educational services provided by their staff. Since the public school failed to provide FAPE previously, compensatory educational services provided in the future (prospectively) by school district staff is generally an ineffective remedy. The same teachers who previously failed to educate the child would be responsible for remediating their past failures." Compensatory Education Requires More"While the Supreme Court decision in Rowley requires school districts to provide special needs students with a "basic floor of opportunity" that provides "some educational benefit," the 11th Circuit held that compensatory awards must do more, and "should place children in the position that they would have been in but for the violation of the Act." Simple Themes Win Cases: Teaching Children to ReadSimple themes win cases. In Jarron's case, the themes included the following: the school system failed to appropriately evaluate him, misdiagnosed him as mentally retarded when he had dyslexia, and failed to teach him to read. If schools don't teach children the basic skills of reading, writing and math, these children will never have an opportunity to become productive, self sufficient members of society, which is the purpose of the IDEA.

Read the decisions from the U. S. District Court and the U. S. Court of Appeals for the Eleventh Circuit. You will see this theme repeated over and over - that Jarron's reading skills were at the 3rd grade level, year after year after year, until he finally left school.Read Steve Wyner's analysis of the significance of the case and how it may benefit you.

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"A Lesser Spirit Would Have Been Crushed Years Ago"

A Lesser Spirit Would Have Been Crushed Years Ago is a more personal "inside story" of Jarron Draper's case.When the Judge issued the favorable decision in 2007, Jarron was 20 years old. He couldn't read, earn a high school diploma, or fulfill his dream of attending college. He was stocking shelves at Target and working as a security guard.In A Lesser Spirit, you'll learn about the battles his family fought, how school employees failed to fulfill their responsibilities, and who stepped up to the plate to represent him in the due process hearing. You'll learn about legal issues - burden of proof, statute of limitations, and remedies for the failure to provide a child with a free appropriate education including compensatory education.You'll meet the dedicated and talented attorneys who also stepped up to the plate to help Jarron and his family when their case went to federal court.

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