Thursday, July 13, 2006

Two New by Zirkel on IDEA Remedies

Perry Zirkel has two new pieces on Westlaw. The first is The Remedial Authority of Hearing and Review Officers Under the Individuals with Disabilities Education Act, 58 Admin. L. Rev. 401 (2006). From the introduction:

The purpose of this Article is to demarcate the extent of H/ROs' remedial authority under the IDEA and correlative state special education laws. The sources for this synthesis are pertinent court decisions, published H/RO decisions, and interpretations of the Department of Education's Office of Special Education Programs (OSEP) to date. The boundaries of this Article, however, do not extend to the related issues of the deference accorded to or by H/ROs under the IDEA; H/ROs' impartiality or, to the extent that it does not directly intertwine with remedial authority, H/ROs' jurisdiction under the IDEA; the statute of limitations for filing for a first- or second-tier administrative proceeding under the IDEA; or hearing officers' remedial authority under ยง 504. Moreover, the boundaries of this Article are limited to the scope of the H/ROs' remedial authority, not to the standards they use to reach remedies. Finally, this Article only addresses H/ROs' remedial authority as a result of, not during, the prehearing and hearing process.

To a large extent, the pertinent legal authorities treat the remedial authority of H/ROs as derived from and largely commensurate with the remedial authority of the courts. The following Parts of this Article delineate the specific boundaries of this derived remedial authority in special education cases with respect to each of the major categories of relief--declaratory, injunctive, and monetary--in this order of approximately ascending strength. When the applicable source--court, H/RO, or OSEP-- addresses multiple forms of relief, I categorize the decision as the strongest relief except when there is separate treatment of each remedy.

The second is Compensatory Education Under the Individuals with Disabilities Education Act: The Third Circuit's Partially Mis-Leading Position,
110 Penn St. L. Rev. 879 (2006). From the introduction:

The purpose of this Article is to describe, evaluate, and propose revisions for the Third Circuit's approach to remedies under the IDEA, with primary attention to compensatory education. The first part of the Article summarizes the United States Supreme Court's two foundational decisions, which established the availability of and criteria for the remedy of tuition reimbursement under the IDEA. The second part of the Article addresses the Third Circuit's IDEA interpretations with regard to IDEA remedies, particularly compensatory education. The third part of the Article traces the relevant Congressional provisions in the successive reauthorizations of the IDEA, which focus on tuition reimbursement. Finally, the fourth part of the Article illustrates the confusion in the Third Circuit's approach and suggests a more coherent and consistent approach for compensatory education, which is informed by the Congressional and judicial development of tuition reimbursement.


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