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Compensatory Education Case Law
from the Beginning
Through Draper in 2008
by Peter W.D. Wright, Esq.
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Compensatory education is not addressed in the United States Code, (IDEA 2004 / Section 504), the Code of Federal Regulations, or state statutes and regulations. You will not read about compensatory education in IDEA or Section 504 of The Rehabilitation Act.
Compensatory education ("comp ed") was created and developed by case law. To understand how comp ed evolved, you need to know this history.
Changes in special education law are caused, in part, by changes in the United States Code. For example, Congress revised the 1975 Education for All Handicapped Children Act in 1997 and changed the name to the Individuals with Disabilties Education Act of 1997 (known as IDEA 97). In 2004, Congress revised the law again. This revised law is referred to as IDEA 2004.
Decisions issued by the U. S. Supreme Court and the U. S. Courts of Appeal also cause the special education law to evolve and change.
The law about a child's entitlement to compensatory education was influenced by three cases from the U. S. Supreme Court (SCOTUS) - Burlington in 1985, this author's Carter case in 1993, and the recent Endrew F. case in 2017
Decisions from the U. S. Courts of Appeal also led to major changes and are the focus of this overview about the law of compensatory education.
In 1982, the Eighth Circuit in Miener v. State of Missouri 673 F.2d 969 (8th Cir.1982) held that "Congress did not create a private cause of action under the EHA for the damage relief requested, including compensatory educational services."
In 1985, the U. S. Supreme Court ruled in Burlington School Committee v. Department of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) explaining that:
"In this Court, the Town repeatedly characterizes reimbursement as 'damages,' but that simply is not the case. Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP."
In ordering tuition reimbursement to the parents, the Court held that "The statute directs the court to 'grant such relief as it determines is appropriate.' The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be 'appropriate.' Absent other reference, the only possible interpretation is that the relief is to be 'appropriate' in light of the purpose of the Act . . . [and that] means that equitable considerations are relevant in fashioning relief."
In 1986, Miener went back to the Eighth Circuit on a renewed claim for compensatory education. The Court reversed itself explaining that "However, the Supreme Court's decision in Burlington, supra, a unanimous opinion by Mr. Justice Rehnquist, has altered our understanding of what "damages" includes in the context of the EHA . . . the plaintiff is entitled to recover compensatory educational services if she prevails on her claim that the defendants denied her a free appropriate education in violation of the EHA." Miener v. State of Missouri 800 F. 2d 749 (8th Cir.1986)
Miener was the first U. S. Court of Appeals to uphold an award of compensatory education and continues to be regularly cited by other courts as the legal authority for such an award.
Two years later, in Jefferson County (Alabama) v. Breen, 853 F.2d 853 (11th Cir.1988), the Eleventh Circuit cited Burlington and Miener as authority that "Compensatory education, like retroactive reimbursement, is necessary to preserve a handicapped child's right to a free education . . . [and] providing a compensatory education should serve as a deterrent against states unnecessarily prolonging litigation in order to decrease their potential liability. We believe that the district court correctly ordered the Board to provide Alice with two years compensatory education."
In New York four months later, the Second Circuit, in Burr v. Ambach, 863 F. 2d 1071 (2d Cir.1988), cited Burlington and Miener, in holding that "Administrative and legal proceedings are often lengthy, and a person who prevails at the end of such proceedings should be able to obtain what the proceedings establish he was entitled to when they began. Clifford should not lose the education to which he was entitled at the time his parents requested a hearing under the Act because the hearing was protracted. The Institute was mistaken when it decided that its program was inappropriate for Clifford, as the administrative decisions show, and that mistake should not cost Clifford one and one-half years of education to which he was entitled." Note, after this decision, Burr went back up to the Court a year later on another issue, so that this case is known as Burr I and the other as Burr II.
In 1990, in Lester H. v. Gilhool, PA Secretary of Education 916 F.2d 865 (3d Cir.1990), the Third Circuit upheld a district court ruling that "awarded the plaintiff, Lester H., two and one half years of compensatory education beyond age 21, the statutory maximum specified in the EHA."
In Lester H. v. Gilhool, as a result of different schools and home-bound instruction, the child did not receive FAPE for two and a half years. The Third Circuit upheld the District Court, holding that "The injury has been done and although the exact contours of the appropriate remedy may not be ascertainable now, Lester's injury certainly could be, and was, ascertained. Moreover, the court left ample room for the exact contours of the remedy to be shaped by the appropriate authorities at the appropriate time. All the court did was award Lester the number of years needed to restore that which concededly had been denied him and that to which he is entitled . . ."
One month later, the Second Circuit addressed compensatory education again in Mrs. C. v. Wheaton (Comm. of Educ, CT) 916 F.2d 69 (2d. Cir.1990). This case is similar to some issues that are presently occuring nationwide related to COVID-19 with special education and related services terminated or not provided.
"In light of our determination that the Department was required to follow EHA procedures before terminating J.C.'s educational placement, the complaint clearly alleges violations of the EHA that led to J.C.'s exclusion from his educational placement. Moreover, a comparison of appellant's allegations with the violations we found in Burr I shows that compensable education is an appropriate remedy here. The 'gross violations' we found in Burr I consisted of undue delay in an agency hearing and in administrative review thereafter in violation of the EHA and applicable regulations in a situation where the handicapped child was being deprived of the benefit of the 'stay-put' provision of the EHA because his former school had closed.
Thus, in Burr I the school's failure to comply with EHA procedures deprived the student of an educational placement until he was 21. Here, appellant alleges that defendants in effect took advantage of J.C.'s mental infirmities to evade EHA procedures, resulting in J.C.'s complete exclusion from an educational placement until he was 21, with disastrous results. We believe that the complaint states a claim for compensatory educational relief."
"As we held in Burr I and Burr II and hold again today, compensatory education is a proper remedy in an appropriate situation for enforcing EHA educational rights. Since § 504 expressly allows for equitable relief, compensatory education is an appropriate remedy when it is used to enforce EHA rights."
In 1991, the Sixth Circuit in Hall v. Knott County (KY) 941 F.2d 402 (6th Cir. 1991) addressed compensatory education as a statute of limitations issue. A blind child "received home instruction from the defendant board of education beginning in 1972, when she was 11 years old. The home instruction was continued beyond her 21st birthday, and she received a high school diploma at the age of 22. This lawsuit was filed five years later, when the plaintiff was 27."
"Although the plaintiff had stated a justiciable claim for prospective compensatory education costs, she was estopped to make the claim because she and her parents had failed to assert their rights at a time when the defendants could still have complied with the Act."
"The principal issue on appeal, which is linked to the type of relief available, is whether the action was barred by the applicable statute of limitations. Concluding that it was, we shall affirm the dismissal." [Wrightslaw Note: Hall graduated on May 3, 1983. At that time all case law denied any entitlement to comp ed. This case was filed on on May 26, 1988 and Miener was the only case at that time that authorized entitlement to comp ed.]
In 1994 the Second Circuit again addressed comp ed in Garro v. Connecticut Dept. of Educ. 23 F.3d 734 (2d Cir.1994) and held that it "is unavailable to a claimant over the age of twenty-one in the absence of 'gross' procedural violations."
That same year, in a State of Washington case, the Ninth Circuit in Student v. Puyallup Sch. Dist. 31 F.3d 1489 (9th Cir.1994), found that the student "unquestionably lost time during his eighth and ninth grade years when he was not receiving special services. The plaintiffs argue that ipso facto, he is entitled to an equal amount of compensatory education, without any further analysis. But compensatory education is not a contractual remedy, but an equitable remedy, part of the court's resources in crafting 'appropriate relief.' There was no showing that a general award of unspecified one and one-half years of compensatory education was appropriate."
"There is no obligation to provide a day-for-day compensation for time missed. Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA. Student W. was able to graduate from high school, before reaching age 21, without more services than provided for in his annual IEP. The IDEA promises him no more."
"To hold that the district court abused its discretion in denying compensatory relief would be to destroy the equitable nature of the district court's charge to fashion 'appropriate relief.' It may be a rare case when compensatory education is not appropriate, but it was not an abuse of the district court's discretion to decide that this case was such a rarity."
In 1995, the Third Circuit in Carlisle Area Sch. v. Scott P. 62 F.3d 520 (3rd Cir.1995) concluded that "We have held that compensatory education is available to respond to situations where a school district flagrantly fails to comply with the requirements of IDEA."
The Third Circuit removed the "bad faith / flagrant disregard" standard. "Although we do not believe that bad faith is required, most of the cases awarding compensatory education involved quite egregious circumstances. This case does not appear to be in that category."
"The cases from other circuits which recognize compensatory education without explicitly requiring a higher degree of intent by the district have also involved more culpable conduct."
"In any event, there was no violation shown here, since the 1991-92 IEP was not challenged and was therefore presumptively appropriate. We must therefore reverse the district court's order insofar as it awarded six months of compensatory education for the purported inappropriateness of the 1991-92 IEP."
Until the Third Circuit issued Carlisle Area Sch. v. Scott P., to be entitled to an award of compensatory education, there had to be egregious facts against the school district.
In 1996, the rulings of the Courts began to shift. In M.C. v. Central Region Sch. Dist. 81 F.3d 389 (3d. Cir.1996) the Third Circuit explained that "Under IDEA, a disabled student is entitled to free, appropriate education until he or she reaches age twenty-one. A court award of compensatory education requires a school district to provide education past a child's twenty-first birthday to make up for any earlier deprivation."
"In order to define the correct standard for granting compensatory education, we must delineate the threshold of deficiency in the school board's stewardship necessary to trigger an award. Unfortunately, there is little caselaw or legal commentary to guide us. Likewise there are no New Jersey or federal regulations to direct our inquiry. While this is not the first time we have contemplated this issue, the facts of our previous cases have made our past analyses relatively straightforward."
"Our holding can be summarized as follows: a school district that knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem. We believe that this formula harmonizes the interests of the child, who is entitled to a free appropriate education under IDEA, with those of the school district, to whom special education and compensatory education is quite costly."
"Obviously the case against the school district will be stronger if the district actually knew of the educational deficiency or the parents had complained. But a child's entitlement to special education should not depend upon the vigilance of the parents (who may not be sufficiently sophisticated to comprehend the problem) nor be abridged because the district's behavior did not rise to the level of slothfulness or bad faith. Rather, it is the responsibility of the child's teachers, therapists, and administrators and of the multi-disciplinary team that annually evaluates the student's progress to ascertain the child's educational needs, respond to deficiencies, and place him or her accordingly."
"Thus, J.C.'s educational deprivation appears to have lasted a long time. On remand, the district court should determine when the Central Regional knew or should have known that J.C.'s IEP was inappropriate or that he was not receiving more than de minimis educational benefit; it should also define the reasonable time within which the district should have done something about it. Compensatory education should accrue from that point forward."
As the entitlement to compensatory education became clear, the developing issue was how much comp ed and how is it determined.
In 2000, the Eighth Circuit (of Miener fame) in Strawn v. Missouri Bd. of Ed. 210 F.3d 954 (8th Cir. 2000) affirmed the child's entitlement to compensatory education and said that "we think the determination of a remedy for a year of lost education should properly lie with a state administrative panel in the first instance."
"However, we note that Lauren may be entitled to more than just one year of compensatory education because, as the resolution conference acknowledged, 'the optimum time for language acquisition is at a younger age than Lauren's present age.' Thus, we remand to the district court with an instruction to refer the matter back to the state panel for a determination of the appropriate compensatory education remedy."
In other words, a year lost of special education could require more than a year of compensatory education.
In 2003, in Maine Sch. Admin. Dist. No. 35 v. Mr. and Mrs. R., 321 F.3d 9 (1st Cir.2003) the Court explained that "compensatory education is not an appropriate remedy for a purely procedural violation of the IDEA. In contrast, a substantive violation may give rise to a claim for compensatory relief. Here, the prospective relief that the appellants sought at the commencement of these proceedings was both procedural and substantive. Thus, a claim for compensatory education arguably lies and their case is not moot."
Due to the passage of time in a special education appeal, some cases have become moot, in that there was no longer an ongoing controversy. Once deemed moot, some pro-child decision's from the District Court have been vacated and thus the parent's entitlement to recoupment of attorney's fees has become lost. That happened twice in 2019 and the cases are discussed in our 2019 Year in Review book, scheduled for release in June, 2020.
In a case involving an Air Force family against the Dept. of Defense Education Authority G. v. Ft. Bragg Dependent Schools, 343 F.3d 295 (4th Cir.2003) the Court defined comp ed -
"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. We agree with every circuit to have addressed the question that the IDEA permits an award of such relief in some circumstances. As we explain below, because the district court's basis for rejection of G's compensatory education claim involved an erroneous legal conclusion, we reverse its rejection of that claim and remand for reconsideration."
In 2005, entitlement to comp ed was not an issue, nor did it require bad faith by a school district. However, case law was unclear as to the determination of the remedy and who should make that determination. Most decisions remanded the case back to either the District Court Judge or the Hearing Officer / Administrative Law Judge to make that determination. In some of those cases, it was then sent back to the IEP Team to calculate what was needed in the form of comp ed.
The next major landmark comp ed case was Reid v. DC 401 F.3d 516 (DC Cir.2005) which closed the door on the involvement of an IEP Team in the determination of amount of comp ed and an hour for hour calculation.
"In this case, although the hearing officer made express findings regarding DCPS's four-and-a-half-year denial of FAPE, he set forth the 810-hour award in a one-sentence ipse dixit. 'At rate of 1 hour for each day of special education services not provided,' he wrote, 'DCPS is to provide 810 hours (4.5 multiplied by 180 school days) of compensatory education services to Mathew as his IEP team directs.' The officer's order contains neither reasoning to support this hour-per-day formula nor factual findings showing that the 810- hour result satisfied Mathew's needs."
Nor, regarding the other issue in this case, could the court defer to the hearing officer's decision to delegate authority to the IEP team.
The "Rowley standard requires only that schools provide 'some educational benefit,' - a standard that looks to the child's present abilities - an IEP conforming to that standard carries no guarantee of undoing damage done by prior violations. As this case demonstrates, moreover, that damage may be quite severe: according to expert testimony, Mathew not only failed to keep pace with his peers under the school district's IEP, but actually learned 'counterproductive' compensatory techniques that he must now unlearn before he may advance. Consistent with Congress's stated aim of ensuring that the rights of children with disabilities and parents of such children are protected, we therefore join our sister circuits and hold that compensatory education awards fit comfortably within the 'broad discretion' of courts fashioning and enforcing IDEA remedies."
"Accordingly, just as IEPs focus on disabled students' individual needs, so must awards compensating past violations rely on individualized assessments."
The "amount of compensatory education appropriate in Mathew's case cannot be determined as a matter of law. Rather, designing Mathew's remedy will require a fact-specific exercise of discretion by either the district court or a hearing officer. As to the school district, although 810 hours certainly seems like a significant award, without grounds for deference to the hearing officer we may conclude at summary judgment that this remedy was correct as a matter of law only if our review of the record reveals that any greater remedy would amount to an abuse of discretion. We cannot reach that conclusion because, drawing all inferences in Mathew's favor, as we must at summary judgment, we have no basis for concluding that 810 hours - barely more than half of a single academic year â€” would suffice to make up for Mathew's four-and-a-half years without FAPE, especially considering that during that period he developed 'counterproductive' reading habits."
"As we have explained, however, whereas ordinary IEPs need only provide 'some benefit,' compensatory awards must do more - they must compensate."
"On remand, the district court may solicit additional evidence from the parties and fashion an appropriate compensatory education award based on the principles outlined in this opinion. Alternatively . . . rather than exercising their right to 'request' consideration of additional evidence, the district court may determine that the 'appropriate' relief is a remand to the hearing officer for further proceedings."
The Reids' second challenge raises a straightforward question of law: may IDEA hearing officers authorize IEP teams to 'reduce or discontinue' compensatory education awards? Disagreeing with the district court, we answer no. . . . Any modified award may not delegate authority to the IEP team to reduce or discontinue the prescribed compensatory instruction."
In 2008, compensatory education took another turn and opened the door to what became called the "Poor Man's Burlington Remedy." Jarron Draper's attorneys, Steven Wyner and Marcy Tiffany, wrote an article for Wrightslaw about the case. The URL is https://www.wrightslaw.com/law/art/draper.comped.wyner.htm
In Draper v. Atlanta Indep. Pub. Sch. 518 F.3d 1275 (11th Cir.2008) the Court ordered,as comp ed, four years of private school tuition, to extend well past the youngster's 21st birthday.
The Draper case relied on Reid and both cases are frequently cited by courts as they write decisions about unique comp ed remedies. In Draper, the District Court judge heard evidence and developed the remedy. The youngster had been misdiagnosed as being mentally retarded and placed into EMR classes when the youngster was in fact dyslexic.
At the time of the initial hearing, Draper was 18 years old and in the eleventh grade, but he was only able to read at the third-grade level.
The Court noted that "Draper had been observed writing words, letters, and numbers backwards, a classic symptom of dyslexia, and that he performed much better on verbal tasks, the evaluation performed in June 1998 was spectacularly deficient. The evaluation did not measure Draper's phonological processing levels (which are essential to reading) nor did the evaluator review Draper's receptive and expressive levels. Based on the limited evaluation performed, which essentially included an I.Q. test, the school psychologist concluded that [Draper] had a full scale I.Q. of 63 . . . The persistent refusal of the School System to acknowledge the substantial evidence of its misdiagnosis borders on incredible."
"We do not read the Act as requiring compensatory awards of prospective education to be inferior to awards of reimbursement . . . The Act instead empowers the district court to use broad discretion to fashion appropriate equitable relief . . . The Act does not foreclose a compensatory award of placement in a private school. The district court was free to award Draper a placement in a private school without regard to the remedy fashioned by the administrative law judge, and Draper was not required to prove that the School System was incapable of providing him an appropriate education."
"In our review of Draper's award, we are mindful that an award of compensation for a violation of the Act is different from the educational program ordinarily required by the Act. An educational program must be 'reasonably calculated to enable the child to receive educational benefits . . . Although ordinary educational programs need only provide some benefit, compensatory awards must do more - they must compensate.' Compensatory awards should place children in the position they would have been in but for the violation of the Act."
In addition to the article by Wyner and Tiffany, we have several other articles on Wrightslaw about Draper, including the Complaint that was filed in federal court:
Draper established that educational services to provide compensatory are greater than the services for an IEP. At the time of the Draper decision, the definition of the word "appropriate" in FAPE was based on the 1982 SCOTUS Rowley case. The standard changed to comply with the SCOTUS decision in theEndrew F. case.
M.C. v. Antelope Valley 858 F.3d 1189 (9th Cir.2017) a Ninth Circuit case issued just after Endrew F. emphasized that "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. In other words, the school must implement an IEP that is reasonably calculated to remediate and, if appropriate, accommodate the child's disabilities so that the child can make progress in the general education curriculum, taking into account the progress of his non-disabled peers, and the child's potential. We remand so the district court can consider plaintiffs' claims in light of this new guidance from the Supreme Court."
Since the 2008 Draper case, there have been a number of decisions that address comp ed, but relatively few new legal issues.
To find the most recent compensatory education cases in your jurisdiction, go to
click on "Case law," then select the Courts you wish to search, state and federal, and then enter as your search term the following, with the quotation marks:
"individuals with disabilities education act" "compensatory education"
Wrightslaw Note: This webpage was created in preparation for a May 19, 2020 webinar related to special education during the pandemic. Three other attorneys participated in the webinar - Piper Paul, Jack Robinson, and Wayne Steedman.
The webinar was hosted by Dr. Roseann and is available through her website at:
As one of four presenters, my role was to discuss the law of compensatory education. To prepare for the webinar, I created a PowerPoint presentation. I converted the PPT to a PDF. The PDF of the PowerPoint presentation is at:
Wrightslaw Note: For more about comp ed and the articles on our website, in the far upper right-hand top corner of this page is a blue box with a magnifying glass. To the left of that is a text box to enter your "Google" search term. Insert "comp ed" and you will see many more files.
Also, on July 27, 2022, the U.S. Department of Education's Office for Civil Rights (OCR) and Office of Special Education Programs (OSEP) provided a comprehensive 1.25 hour webinar about comp ed. It was recorded. Click here for the link and more information.
Date revised: 7/27/2022