FAYETTEVILLE, Ark. — While the federal law designed to protect disabled children’s right to an education gives many rights and remedies to secure an appropriate education, it gives no clear message on the issue of damages filed in lawsuits, and this question has split the courts. A University of Arkansas law professor argues that until Congress clarifies the issue, damage awards for routine violations of the act are unwarranted under the law. The drafters intended for the act to emphasize education, not litigation.

Terry Seligmann, director of legal research and writing and associate professor of law writes her findings in the winter 2002 issue of the Georgia Law Review.

The core question is: Should parents recover damages in a civil rights lawsuit that is claiming a violation of the Individuals with Disabilities Education Act (IDEA)?

"Congress was not completely clear about its intentions on this subject," said Seligmann.

She examines the arguments on both sides, including proposals that there should be remedies for wrongs committed by government entities, and that states should not be held liable in damages under federal grant programs without clear notice.

She concludes that as both a legal and policy matter, it is not wise to impose monetary damages in cases where the act has been violated.

"School districts should be encouraged to spend money on services for kids," not using resources to fight lawsuits demanding compensation, Seligmann said.

"There are already a lot of incentives in place to get schools to work with parents," whose children have special needs, Seligmann said. Under the IDEA, parents form part of a team with the schools to create Individual Education Plans (IEPs) for their children. If the parents disagree with the district’s handling of their child’s placement or plan, they have a right to get court orders and to be compensated for attorney fees. Courts have also awarded parents compensation for private school fees incurred during disputes with school districts, and ordered compensatory educational services at public expense. However, most courts have not awarded general damages such as those for lost future earnings or for emotional distress under the IDEA or in civil rights suits based on IDEA claims.

Compensation may be appropriate in cases where there has been physical or verbal abuse. There are remedies for egregious violations under the Constitution, the Rehabilitation Act, the Americans with Disabilities Act and sometimes under state tort law. Parents may use these remedies to seek damages if they have exhausted all the possibilities for remedies under the IDEA and still have not received appropriate care for their child.

"To be consistent with the IDEA’s purposes, the law should encourage school districts and parents to focus not on litigation, but on education," Seligmann concludes in her article.

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