Poor Man's Remedy

Poor Man's Remedy to Move Child with Special Needs to Private School

The harsh reality is that most families cannot afford to remove their child from an inappropriate public school program and pay tuition for a private placement, while also incurring the expenses of a due process hearing and subsequent litigation.

In Jarron Draper vs. Atlanta Independent School District (N.D. GA 2007), the 11th Circuit fashioned a "poor man's Burlington remedy" for these families. The Act does not relegate families who lack the resources to place their children in private schools to shoulder the burden of proving that the public school cannot adequately educate their child before those parents can obtain a placement in a private school. The Act instead empowers the district court to use broad discretion to fashion appropriate relief.

This decision should help special needs families and their counsel in negotiating settlements that provide quality educational remediation when their child has been denied a free appropriate public education (FAPE).

When the school system fails to provide FAPE, the family can and should ask for compensatory education from a non public agency or school.

Public schools often offer to provide compensatory education in the form of supplemental educational services provided by their staff. Since the public school failed to provide FAPE previously, compensatory educational services provided in the future (prospectively) by school district staff is generally an ineffective remedy. The same teachers who previously failed to educate the child would be responsible for remediating their past failures.

Simple themes win cases. In Jarron's case, the themes included the following: the school system failed to appropriately evaluate him, misdiagnosed him as mentally retarded when he had dyslexia, and failed to teach him to read.

If schools don't teach children the basic skills of reading, writing and math, these children will not have an opportunity to become productive, self sufficient members of society, as envisioned by the IDEA.