What options are available if a school district is not implementing your child's IEP? Some parents find themselves in the unfortunate situation of having fought for their child's educational rights and obtained appropriate services for their child, only to have the school subsequently fail to implement those services.
Even though parents of children with special needs may suffer severe emotional distress due to stress involved when advocating for their child's educational needs, they are not entitled to a money award for their reported pain and suffering. In fact, a recent case has clarified this point by explaining parents are not even entitled to nominal damages in the amount of $1.00. On May 14, 2012, the Ninth Circuit Court reversed an Oregon District's Court's decision to award a family nominal damages in the amount of $1.00. The District's Court rationale for such an order was awards of nominal damages would promote compliance with mandates under the IDEA. The Ninth's Circuit rejected this argument stating a proper remedy for noncompliance of IDEA requirements is a loss of federal funds. It is well established that parents cannot recover compensatory or punitive damages under the IDEA. This case shows nominal damages, or small monetary sums awarded to recognize school district legal violations are also unavailable under the IDEA. As such, the IDEA's directive that courts grant "appropriate" relief did not justify a monetary award even in the amount of $1.00.
The general rule regarding claims under IDEA provides a parent must first file any actions in administrative court before they can move forward into federal court. This doctrine is referred to as "exhaustion of administrative remedies ." The most talked about special education ruling of 2011 dealt specifically with this doctrine and how it relates when a parent is not alleging a claim under IDEA but rather a claim under Section 1983 (discrimination) for their disabled child. Payne v. Peninsula School District, 57 IDELR 31 (9th Cir. 2011). This case will not be reviewed by the U.S. Supreme Court as certiorari was denied on February 21, 2012. This case centered on the misuse of a time-out room for a child with disabilities. The Parents claimed the child's rights under section 1983 were violated and filed in federal court. The case was dismissed at the district court level as the court indicated Parents should have filed with the CA Office of Administrative Hearings rather than federal court. The 9th Circuit held that the District court erred in dismissing a properly pleaded Section 1983 claim. The court reasoned that the application of the IDEA's exhaustion requirement turns on the relief sought rather than the injury alleged. Specifically, the 9th Circuit observed that exhaustion is required when a parent seeks: 1) an IDEA remedy such as tuition reimbursement; 2) a change in student's program or placement; and 3) the enforcement of rights arising from a denial of FAPE.