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News & Press: Amicus

IDEA Places Ultimate Responsibility for Ensuring That Students get FAPE on the States

Monday, February 4, 2019   (0 Comments)
Posted by: Denise Marshall

COPAA and Education Law Center (ELC) filed an amicus brief in the Third Circuit case: LeJeune G., v. Pennsylvania Department of Education, et. al. Catherine Merino Reisman wrote and filed the brief for COPAA, Selene Almazan, Ellen Saideman and Jessica Salonus assisted with the editing.  David Berney and Kevin Golembiewski, COPAA members represent the family in this matter. They appealed the District Court decision.

IDEA places ultimate responsibility for ensuring that students get FAPE on the states, which are responsible for having in effect policies and procedures that make FAPE available to all children with disabilities between the ages of 3 and 21.  20 U.S.C. § 1412(a)(1). States are responsible for general supervision of educational programs in the state. 20 U.S.C. § 1411. States may provide for charter schools to be free-standing Local Educational Agencies (LEAs) or for charter schools to be operated by Local Educational Agencies.  See 20 U.S.C. § 1401(19) (defining Local Educational Agency). 

In this case, Pennsylvania has provided for charter schools to be free-standing LEAs.  Because Khepera Charter School (Khepera)was not able to provide T.T. with FAPE, his parent pursued procedural remedies and initiated due process proceedings pursuant to 20 U.S.C. § 1415(f).

A family of limited economic means presented with a resolution agreement in which a charter school is obligated to fund private school tuition faces an untenable choice. The decision below requires litigation to create an obligation enforceable against PDE if the charter school becomes unable to fund the placement. While hindsight is always 20/20, parents and their attorneys lack the clairvoyance needed to know in advance whether a charter school will eventually default on its obligations. At the same time, the fact that a charter school might be unable to meet its obligations at a future date is unlikely to serve as a substantial justification for rejecting a settlement offer. Accordingly, fees for continued litigation against the charter school would not be compensable if the school had offered the placement in a resolution agreement, notwithstanding the fact that the resolution agreement would be meaningless if the charter school ultimately could not comply with the agreement. The decision below places parents in an impossible position when presented, in a resolution session, with a reasonable settlement offer by a charter school. In this manner, the decision below discourages students in charter schools from settling their claims and also discourages private attorneys from representing children of limited economic means against charter schools. Importantly, this is an issue which will continue to arise for low-income parents of children with disabilities in the charter school context. The median poverty rate for children attending traditional charter schools like Khepera in Philadelphia is 70.9%[1] and many parents simply cannot afford to pay private school tuition.

Congress specifically required parents to participate in a resolution session with the goal of resolving the dispute prior to the hearing.  20 U.S.C. § 1415(1)(B).  Written agreements obtained at resolution sessions are legally binding agreements.  20 U.S.C. § 1415(1)(B)(iii). Here, Khepera and the parent entered into a resolution agreement that provided for the charter school to place T.T. at a private school for children with disabilities, the Y.A.L.E. School (Y.A.L.E.) for the 2015-2016 school Pennsylvania’s most heavily chartered communities – Philadelphia, Pittsburgh, Chester-Upland, York City, and Erie City – all have large populations of limited economic means. See ELC Analysis: Inequities in Pennsylvania’s Charter Sector: Segregation by Disability (February 2017) available at   https://www.elc-pa.org/wp-content/uploads/2017/02/ELC-Analysis-Inequities-in-PA-Charter-Schools-Segregation-by-Disability.pdf. Thus, this ruling will detrimentally affect the neediest of Pennsylvania’s students by undermining their access to tuition reimbursement.

Again, this holding disadvantages families of limited economic means by discouraging settlements with charter schools and requiring litigation to secure a binding promise to fund a private placement. In order to encourage early settlement, IDEA provides that written agreements entered into at resolution sessions are legally binding agreements, enforceable in federal district court. 20 U.S.C. § 1415(1)(B)(iii)(II). Further, IDEA strongly encourages parents to accept settlement offers by prohibiting attorneys’ fees for services performed subsequent to a written offer of settlement unless the parent obtains more favorable relief or is substantially justified in rejecting the settlement offer.  20 U.S.C. § 1415(i)(3)(D)(i).

Read the COPAA and ELC brief.

Read the parents’ brief.



[1]  See charter school data source on economic disadvantage available at https://futurereadypa.org/#.



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