The Individuals with Disabilities Education Act (IDEA) provides procedural and substantive educational rights to ensure a free appropriate public education (FAPE) to qualified people with disabilities. IDEA imposes strict procedural requirements on educators to ensure that a student's substantive right to FAPE is met (Honig v. Doe, 1988). Defining the parameters of what constitutes FAPE, however, has often been an elusive and controversial issue. In Board of Education of the Hendrick Hudson Central School District v. Rowley (1982), the U.S. Supreme Court held that IDEA's requirement of FAPE is satisfied when the state provides personalized instruction with sufficient support services to permit the student to benefit educationally from instruction (458 U.S. at 181). The child must receive "some educational benefit" from the education provided; although the best possible education is not required (458 U.S. at 201, 202). Under Kowley, when challenges to a student's individualized education program (IEP) are made, courts undertake a two-part inquiry: (a) whether the procedural mandates of the Act were followed and (b) whether the student received individualized educational services designed to confer some educational benefit. IDEA procedural protections are in effect even if a child has not been classified, provided the process of being evaluated has been initiated (Babb v. Knox County School System, 1992). Further, the Supreme Court, in Zobrest v. Catalina Foothills School District (1993), concluded that it was appropriate to make an argument for a student's claim for reimbursement for services even though the student had graduated from high school and, consequently, was not eligible under IDEA. Procedural noncompliance with IDEA, however, does not constitute an automatic denial of FAPE. Procedural noncompliance will be deemed in violation of IDEA only if it results in substantial deprivation of a student's right to appropriate education (Cordrey v. Euckert, 1990).
Courts have consistently upheld the right of parents to receive relief for violations that inhibit a student's right to FAPE. Traditionally, such relief included the reimbursement for the cost of residential placements, recovery of legal fees, and reimbursement for the cost of related services. Recent judiciary rulings have also established the award of compensatory education as a remedy within the legal parameters of IDEA and Section 504 of the Rehabilitation Act of 1973. We define compensatory education as the award of additional educational services to a student, of en in the form of educational services beyond the age of eligibility, for past violations to a student's right to an appropriate education.
The previously described solutions are commonly referred to as "equitable" remedies because the intent of the courts is to restore benefits that have been withheld in violation of applicable law (e.g., tuition reimbursement for a residential placement when the public school failed to provide an appropriate program). In contrast, monetary damages, often referred to as "remedies at law," are intended to provide relief to an individual for injuries such as "mental distress" or "pain and suffering." Courts have increasingly considered monetary damages as a potential remedy for people with disabilities.
Because compensatory education currently is being established as a remedy for IDEA violations and the potential for the award of monetary damages is increasing, school professionals should intensify their efforts to ensure the provision of FAPE for qualified students with disabilities and to avoid all procedures that put students at any risk. Therefore, the purposes of this article are threefold: (a) to provide an overview of traditional remedies afforded to parents of children with disabilities, (b) to address issues associated with the provision of compensatory education, and (c) to investigate the potential of monetary damages within the legal parameters of IDEA and Section 504 of the Rehabilitation Act of 1973. …