Siblings May Recover Damages for School’s Failure to Provide FAPE

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In a unanimous decision, the Court of Appeals for the Ninth Circuit held that parents of two siblings with autism may seek monetary damages for the school’s failure to provide them with a free appropriate public education.

The parents alleged that the department of education failed to provide the children with appropriate services during their formative years. The “window of opportunity” to learn to speak and interact with people closed…

… because of the department’s “deliberate indifference.”

The parents’ Complaint alleges that:

“Hawaii DOE denied Michelle and Natalie meaningful access to the benefits of a public education in two key ways:

(1) by failing to provide the girls with reasonable accommodations for their disabilities through autism-specific special education services, and
(2) by failing to design the girls’ Individualized Education Programs (“IEPs”) to meet the girls’ needs as adequately as the needs of non-disabled students were met.

“The H. Family alleged that these failures were the result of the Hawaii DOE’s deliberate indifference and therefore violated the Rehabilitation Act § 504, giving rise to a private cause of action for damages.” (Mark H. et al v. Patricia Hamamoto and Hawaii Department of Education).

The Court of Appeals reversed earlier District Court rulings that dismissed the parents’ case and remanded the case to a different judge “for further proceedings consistent with this opinion.”

The family is represented by lead attorney Stanley Levin, Michael Livingston, and Keith H.S. Peck.

Parent attorneys said the decision allows parents to seek recovery under Section 504 of the Rehabilitation Act when children are damaged by “deliberate indifference.”

Susan Dorsey, managing attorney of the Levin Education Access Project, said “This is a very far-ranging decision that clearly articulates the standards and opens the door to recover damages.”

Read the decision in Mark H:

More special education caselaw at


Suit against state over autism case is reinstated (Honolulu Star Advisor) at

  1. Laura,
    Check your state board of education I think they have to provide an education until your child is 21. There might be something there about athletics as well and maybe PL94-142. Hope this helps I am going through the same thing only mine is younger and was dx with dyslexia in 1st grade.

  2. What rights are there for a child with a specific ld if they don’t make an athletic team they tried out for which is school sponsored.

  3. I need help, my son has dyslexia, specified learning disabilities, add, and type 1 diabetes. He has an IEP and 504. It is going to take him an extra year to graduate. He loves to play basketball, due to his disabilities he is going to be denied an opportunity to play his senior year. He is on the right track to graduation and also has a michigan merit personal curriculum for math. He will get a diploma in 2 years. Can the school take away this right if he is only 18 his senior year. This will cost him a scholarship to a division 1 school and have a great impact on his diabetes. The exercise he gets is doing his body a great favor, help.

  4. Sherri – It is great that the parents were able to prevail in this case but they will never get back the years they lost. My son is dyslexic and was not taught to read when he was young and instead after proving to the school that they failed to teach him to read & were not providing FAPE they hired & paid for an outside tutor that did teach him to read but he started to learn in 9th grade and just finished last year two years after his “real” graduation date. The school was smart enough to know they failed him so we did not have to go due process. They just went ahead and hired this lady 5 hours per week at $75.00 per hour. Wouldn’t it be more cost effective to hire this person to teach some of the teachers and help more children? They never did that, we suggested.

  5. I am so glad to hear that the Court of Appeals found in favor of the parents. I am the parent of three children on the autism spectrum, and these school districts really need a wake-up call like this one. Deliberate indifference is only the tip of the iceburg! My heart just breaks for this family.

    I think some of these school officials should start losing their jobs if they are deliberately withholding services from children. There needs to be a much higher level of accountability for these highly educated, highly paid officials!

    Even though the parents can seek monetary damages now, no amount of money can replace what they have lost.

  6. I feel that my grandson should be awarded monetary damages because his needs were not met to satisfy his exceptionality. The school was aware of his learning disability.

  7. It is unfortunate that these children missed out on important interventions and instruction during a critical developmental stage in their lives before decisions began being made in their favor.

    When a school district is found to be negligent or not in compliance with the ADA or IDEA safeguards, the law firm representing the school district should have to forfeit any and all fees paid to the firm for representation against the child in question. Tax payers never hear about the dollar amounts that have been and will be paid to the law firm prolonged justice for the child. The IDEA was never intended to guarantee wealth to law firms that represent school districts who choose not to follow safeguards that would otherwise protect our kids’ right to a FAPE.

    This would bring immediate change to educational discrimination.

  8. Hopefully, this will put School Department’s on notice to follow the law. In Rochester, NH a parent attended an IEP meeting and was told that her children, who are both autistic, no longer needed services because they no longer had autism. Students are being denied basic services. Depending on the school your child attends here there is only one aid per classroom half a day. If your child is supposed to have a one-on-one that does not happen. Administrators can run the schools anyway they wish. The entire situation is frustrating, but one battle at a time.

  9. As an early elementary special education teacher I find this decision to be absolutely what was needed. There are far too many children who, for whatever reason, are being systematically denied the services that they need. All too often it comes under the banner of inclusion and is spoken with all the right words but to chose to hold a student to the model a school has in place, rather than providing the education they need, though expedient, is shameful.

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