During what time period will compensatory education be provided? One year? Five weeks? Three months? Until all of it is provided?
When compensatory education is proposed, you might face a school district that wants to provide it within a set period of time. Consider, instead, asking that it be provided until each minute owed has been provided in full.
Early 2020, I sat in an IEP meeting with a friend, listening to Fairfax County Public Schools (FCPS) staff discuss its proposal for providing compensatory education it owed her son. FCPS wanted to provide the compensatory education during the few remaining months of the school year and during the summer.
I suggested FCPS instead provide the compensatory education until each minute owed had been provided to the student. This way, if the student had to miss sessions due to being sick, or on vacation, or for any other reason, he wouldn’t miss out on services owed simply because time ran out. My friend had to push hard for it, but FCPS eventually agreed.
COVID hit soon after.
Had my friend consented to the firm end date originally proposed, her son would have lost all compensatory education.
At the time, FCPS’s IEPs stated that FCPS would not provide or compensate for services missed when schools were closed (weather, holidays, etc). After in-person school was shuttered for COVID, FCPS used COVID closures to deny compensatory education. Office for Civil Rights (OCR) eventually found FCPS in noncompliance, but it took over two years for that finding to come down—and almost three years later, FCPS continues to refuse compensatory education.
She flew to a state that provided in-person school during COVID and FCPS remained on the hook for compensatory education owed. While families back in FCPS were refused compensatory education and services, her student received them in another state, simply because of the timeline (and the fact FCPS had been in noncompliance in the first place).
Deciding Your Timeline
Determine what works best for your student and your schedule. If the school insists on trying to provide compensatory education right after school, ask for its data indicating that it is appropriate to 1) extend your child’s school day without a break and/or 2) strip your child of the opportunity to be involved in after-school activities.
If the compensatory education takes place over the summer, and the district insists on holding it during a week your family is on vacation, ask the school district for the federal and/or state regulation stating schools can force through compensatory education without taking into consideration the availability of the student.
At the end of the day, the compensatory education is being provided to remedy any educational or other deficits that resulted from your student (with a disability) not receiving the evaluations or services to which your child is entitled.
USDOE Office for Civil Rights itself cited 34 C.F.R. § 104.6(a) and Barnes v. Gorman, 536 U.S. 181, 189 (2002) as evidence of compensatory education being a remedy.
Barnes v. Gorman, 536 U.S. 181, 189 states the following:
When a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is “made good” when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure.
Public schools are federal-funds recipients and, as such, have certain contractual obligations. Provision of a Free Appropriate Public Education (FAPE) is one obligation. Failure to provide FAPE equates to failure to “provide what the contractual obligation requires”. Hence, the remedy for such a failure, as supported by OCR, is compensatory damages.
- The Problem with Compensatory Education? Too Often, Comp Ed Steals Music, Sports, Auto Tech, and Everything that Brings Happiness
- Compensatory Education, Part I: What is Compensatory Education?