On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in favor of our client in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008).
In 2007, the District Court had ordered the Atlanta Independent School System to pay Jarron's tuition at a private special education school for four years, or until he graduated with a regular high school diploma, as prospective compensatory education for their persistent failure to educate him.
Prospective Compensatory Education in a Non-Public School
The U.S. Court of Appeals for the Eleventh Circuit approved the District Court's award of compensatory education requiring the School System to fund 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. Carter ex rel. Carter, 510 U.S. 7, 16, 114 S.Ct. 361, 366 (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 an appropriate education.
IDEA Does Not Provide Wealthier Parents with Greater Benefits Than Poorer Parents
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.
The 11th Circuit fashioned a "poor man's Burlington remedy" for families that cannot afford to unilaterally remove their child from a public school and pay the cost of educating a child in a private school after the public school failed to provide a FAPE, while also incurring the expense of a due process hearing and subsequent litigation before they can recover the cost of tuition for the private placement.
Significance of Decision in Draper
Negotiating for Quality Compensatory Education Services
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).
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
School officials are fond of interpreting Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. (1982) as requiring that they provide the educational equivalent of a Chevrolet and not a Cadillac.
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." Jarron Draper v. Atlanta Independent School System (11th Cir. 2008)Simple Themes: Teaching a Child 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 not have an opportunity to become productive, self sufficient members of society, as envisioned by the IDEA.
When you read the decisions from the U. S. District Court and the U. S. Court of Appeals for the Eleventh Circuit, you see this theme repeated over and over - that Jarron's reading skills were at the 3rd grade level, year after year, until he finally left school.
Resources: Draper v. Atlanta Independent School System
"A Lesser Spirit Would Have Been Crushed Long Ago" is the "inside story" of Jarron Draper's case. When the Judge issued a favorable decision in 2007, Jarron was 20 years old, stocking shelves at Target and working as a security guard. He couldn't read, earn a high school diploma, or fulfill his dream of attending college.
Jones Day Obtains Pro Bono Eleventh Circuit Win for Special Education Student - Jones Day represented Jarron Draper, against the Atlanta Public Schools (APS) in an appeal of last year's order from U.S. District Court Judge Shoob that APS pay up to $156,000 in future private school tuition, plus transportation costs, because of APS' multiple violations of federal law. The Firm worked with California-based Wyner & Tiffany, a nationally-recognized firm in the area of special education law. (Jones Day, 03/08)
Reading at Wrightslaw - Includes information about learning to read, teaching children to read and write, free publications, service providers who use structured, multisensory, alphabetic techniques. and where to receive training in Multisensory Structured Language (MSL) approaches.
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