White & Case and ELC Advocate for Children with Disabilities at Risk of Losing Federal Right to Compensatory Education | White & Case LLP International Law Firm, Global Law Practice
White & Case and ELC Advocate for Children with Disabilities at Risk of Losing Federal Right to Compensatory Education

White & Case and ELC Advocate for Children with Disabilities at Risk of Losing Federal Right to Compensatory Education

Global law firm White & Case LLP recently represented the Education Law Center (ELC), a New Jersey non-profit legal advocacy organization, in a case before the US Court of Appeals for the Third Circuit with sweeping implications for countless children with disabilities, especially those raised in low-income families.

ELC retained White & Case to prepare its amicus curiae, or "friend of the court," brief, which argued that the Third Circuit should reverse a New Jersey District Court decision that held a child's compensatory education claim was moot because the child subsequently moved from New Jersey to another state. In addition to ELC, 11 other public interest organizations formally joined in the amicus filing.

Guaranteed under federal law, compensatory education is a prospective award of special education programs or services, such as tutoring, physical therapy, or any other special education resource that may compensate a child with a disability for a previous period where the school district deprived him or her of a free and appropriate public education (FAPE). Compensatory education provides a means by which children with disabilities who were denied critical special education resources, and whose parents cannot pay for such services privately, might remedy the harm caused by the denial of FAPE. Compensatory education is often the sole remedy available to cure school district past violations of a child's federal educational rights.

"If a school district fails to provide a child with FAPE, courts award compensatory education to make the child whole for the lost educational opportunity, even if the child later leaves the offending school district," said John Rue, the White & Case lawyer who served as lead counsel for ELC in this matter. "School districts should not benefit financially from denying a child necessary special education services, nor should they receive a windfall because a child's family subsequently decides to move. The law requires that school districts remedy their past violations of the law."

Children with disabilities often move to other districts when that child's existing school district deprives them of needed special education programs and services.

"The District Court's decision has disastrous implications for the many children with disabilities who move out of their school districts every year," said Ruth Lowenkron, ELC's senior attorney responsible for the amicus filing, who solicited other educational advocacy organizations to join the amicus brief. "Especially in these difficult economic times, low-income children and children with disabilities need compensatory education awards to help them obtain appropriate educations."

A favorable outcome in this case would uphold prospective compensatory education awards to children that leave offending school districts and are able to prove the past denial of special education programs and services.

White & Case has previously collaborated with ELC in numerous educational advocacy matters, most recently assisting in the representation of the plaintiff class of children in Abbott v. Burke, the landmark school funding case before the New Jersey Supreme Court. The White & Case team on this matter was led by associate John Rue, supervised by partner Jack Pace and supported by associate Rafael Rosario, law clerk Lauren Giudice and legal assistant Gregg Fish, all of the Firm's New York office. The case is D.F. v. Collingswood Public Schools, No. 11-2410.

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