Appeals Court Upholds Four Years of Compensatory Ed

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Alert! Appeals Court Upholds Award of

Four Years of Compensatory Ed

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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.

Jarron Draper <http://www.wrightslaw.com/nltr/img/jarron.draper1.jpg>

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

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iG7ve-l_WzR5r1KmCcqV-XCuO7bhLUDfdd6Fxti6528s-ppYX86kxuToeRDl_gw_TRabz2i5YXqT

Xr9K7NBHyUs-xb5u9oMm55qhUa7o0FISgU9LCzpybXA6OLbFO3pT-OV5gg==>

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

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QEVozDYhsgIAf2BvWRalXzsvdZiAbXK3cUcJXZ_t8A1MZPcr2zguecmVnYQL_FOyJANiXHGxh-oc

MaFzAsCHSemuBFPI4KyQQ_W0j4TjdWYSy9LODFZwomD0kOFvq-7B5GU5iQ==> Jarron Draper

v. Atlanta Independent School System (11th Cir. 2008).

This Alert

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YGxiStHUbjku8_0rufqi3fQvelHj1Y8aYwVBIdXAcejGTYYKItwm-CEZZmdcdqvN9vRPKMAFaiKh

TOy2jpBL7oBPZu0agaWZcQmVaPH1nnw5zmOT> 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

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to other families, friends, and colleagues.

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Prospective Compensatory Ed in a Private School

In

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iG7ve-l_WzR5r1KmCcqV-XCuO7bhLUDfdd6Fxti6528s-ppYX86kxuToeRDl_gw_TRabz2i5YXqT

Xr9K7NBHyUs-xb5u9oMm55qhUa7o0FISgU9LCzpybXA6OLbFO3pT-OV5gg==> 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

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QOQtIc_1uFPkN_PefqBa7cPSulyGFUAUqtl2cHx8zEbSiCb0ZDq0Wlt4-Aq256qUi4owO_Q_5Jm8

_0WlQiADPyWF-dudDpvcAyDW1Ph-IBMD9L_uOdn58RQ8a7A=> Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996 (1985) and

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Lw_7GCs8kCGJsw_9QNxZ46yj70K4VAp7fzAWkJxr_jW9MUAaKBBgOCeXMBlvuyZiskrH-0Rcyhjf

AqEvbUUMOhTjelA8Gp3ItkzFdHXuYZYqO8yV> 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

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8JoCRKsBDWNg3sSn3P4OUy8uag==> and subsequent litigation.

In

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QEVozDYhsgIAf2BvWRalXzsvdZiAbXK3cUcJXZ_t8A1MZPcr2zguecmVnYQL_FOyJANiXHGxh-oc

MaFzAsCHSemuBFPI4KyQQ_W0j4TjdWYSy9LODFZwomD0kOFvq-7B5GU5iQ==> 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

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Ucx_rm9jdBw1bUFiV6HvvXjFpdO8b9li0De-xVFbwL5nMmUsarublN7MD_eHib8Wq4LkfgeZY6nf

n_ZhqFgOwQzg0EAqVuzOxesyY_HwNK-Lockegv_kaw7l8CI=> 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 Services

He 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)

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2qlQd0YtAo-B1_wK2b5bnhbH_S9tgZCc6NR2yL6Ky2wnr9Li1n-ayvmGpMoQXd09h3EOtRhg4kEH

oFTfLYQzBxCdPGGEEzM3fl5PNg==> . "

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

<http://rs6.net/tn.jsp?e=001Z_Zme2JObnmGUKP73H4gsd_aJN77_b_rks_vRsew4CfIgdI2

4hLKJg6TuDFe5cCq1ortigicasSV4COvezb2VBswRDwIQX3rKxL66pGRnoOYgHuNt2W0LOyM_Ohg

aICk6cz1ncIlaf3km8qsQYg66g0g45N9hZc9> 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 Read

Simple 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

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iG7ve-l_WzR5r1KmCcqV-XCuO7bhLUDfdd6Fxti6528s-ppYX86kxuToeRDl_gw_TRabz2i5YXqT

Xr9K7NBHyUs-xb5u9oMm55qhUa7o0FISgU9LCzpybXA6OLbFO3pT-OV5gg==> and the U. S.

Court of Appeals for the Eleventh Circuit

<http://rs6.net/tn.jsp?e=001Z_Zme2JObnmRwuoATJ1YsjpMlEpWH0aDnKD5qXmL6mgAv3AV

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MaFzAsCHSemuBFPI4KyQQ_W0j4TjdWYSy9LODFZwomD0kOFvq-7B5GU5iQ==> . 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

<http://rs6.net/tn.jsp?e=001Z_Zme2JObnnK2-UCnjNRHitd_7S-jN0IS0DcHlr7rSIXj32R

Ucx_rm9jdBw1bUFiV6HvvXjFpdO8b9li0De-xVFbwL5nMmUsarublN7MD_eHib8Wq4LkfgeZY6nf

n_ZhqFgOwQzg0EAqVuzOxesyY_HwNK-Lockegv_kaw7l8CI=> 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

<http://rs6.net/tn.jsp?e=001Z_Zme2JObnkv2UUAqFvsnvJrTsEiQMykyFDyIt76q9HtlOwZ

KWbE2-6sFFFRwvFtSI4I31KPM0y4fqSkZ-72ueQG-zp6EQb5Pp9BiBbXH6LeXwnrAKM_Niij6lPx

PHx8a1mzZz6ZJbzyyz9TmXkiBIbOQSdhi3y5> 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

<http://rs6.net/tn.jsp?e=001Z_Zme2JObnkv2UUAqFvsnvJrTsEiQMykyFDyIt76q9HtlOwZ

KWbE2-6sFFFRwvFtSI4I31KPM0y4fqSkZ-72ueQG-zp6EQb5Pp9BiBbXH6LeXwnrAKM_Niij6lPx

PHx8a1mzZz6ZJbzyyz9TmXkiBIbOQSdhi3y5> , 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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