United States Court of Appeals, District of Columbia Circuit
Argued May 8, 2015
Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-00305).
Douglas W. Tyrka argued the cause and filed the briefs for appellant. Nicholas Ostrem entered an appearance.
Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Before: ROGERS, TATEL, and SRINIVASAN, Circuit Judges.
TATEL, Circuit Judge
In this case arising under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., plaintiff seeks an order requiring the District of Columbia Public Schools to provide her son with compensatory education to make up for the period during which the school system, allegedly in violation of the statute, failed to identify and evaluate him. The school system responded with an individualized education plan that is, by all accounts,
adequate to keep the child on track going forward, and the district court dismissed the suit as moot. But because the district court failed to address whether A.G. was entitled to compensatory education--a remedy that remains available--we reverse.
The Individuals with Disabilities Education Act aims to ensure that every child has a meaningful opportunity to benefit from public education. To serve that goal, the statute requires that public school systems provide all resident children with disabilities a " free appropriate public education," or FAPE. Id. § 1412(a)(1)(A). It also requires that school systems promptly " identif[y], locate, and evaluate" every " child with disabilities residing in the [district] . . . who [is] in need of special education and related services" --a requirement known as " child find." 20 U.S.C. § 1412(a)(3)(A). Once such a child is identified, located, and evaluated, the school system must develop an " individualized education plan," or IEP, for the child. Id. § § 1412(a)(4), 1414(d).
If a school district fails to satisfy its " child-find" duty or to offer the student an appropriate IEP, and if that failure affects the child's education, then the district has necessarily denied the student a free appropriate public education. See Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834, 371 U.S. App.D.C. 53 (D.C. Cir. 2006) (a FAPE denial is actionable if it " affect[s] the student's substantive rights" ) (emphasis omitted). And when a school district denies a child a FAPE, the courts have " broad discretion" to fashion an appropriate remedy. See Florence County School District Four v. Carter, 510 U.S. 7, 15-16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). That equitable authority, this court has held, must include the power to order " compensatory education" --that is, education services designed to make up for past deficiencies in a child's program. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 522-23, 365 U.S. App.D.C. 234 (D.C. Cir. 2005). If compensatory education were unavailable, after all, a child's access to appropriate education could depend on his parents' ability to pull him out of the deficient public program and front the cost of private instruction--a result " manifestly incompatible with IDEA's purpose of 'ensur[ing] that all children with disabilities have available to them a free appropriate public education.'" Id. at 522-23 (quoting 20 U.S.C. § 1400(d)(1)(A)); see also School Committee of the Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (compelling reimbursement for private instruction to avoid the same harm). Worse yet, " students who remained in public school [without an appropriate plan] would lack any effective redress for FAPE denials, even those extending over many years." Reid, 401 F.3d at 523. To be sure, such students could seek a satisfactory IEP. But because the Supreme Court has held that IEPs need do no more than provide " some educational benefit" going forward, Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), an education plan conforming to that standard will speak only to " the child's present abilities," Reid, 401 F.3d at 523. Unlike compensatory education, therefore, an IEP " carries no guarantee of undoing damage done by prior violations," id., and that plan alone cannot take the place of adequate compensatory education.
Latonya Boose, the plaintiff in this case, seeks compensatory education for her son, A.G. Now ...