holdings of those cases.55 Congress amended Public Law 94-142 several times and its name
changed to the Individuals with Disabilities in Education Act in the 1990 amendments.56
The basic guarantees of the law have remained constant since the initial enactment in
1975 to the present.57 Funding under the IDEA, like its predecessor, is dependent upon
satisfaction of three requirements: (1) identification of all children entitled to classification under
the Act,58 (2) providing qualified children with an individualized and “Free Appropriate Public
Education,”59 and (3) delivered in the LRE.60 The IDEA confers procedural guarantees assuring
parents of an active role in the process of deciding the components of their child’s individualized
education program (“IEP”).61 The Act also provides an administrative process with direct appeal
to federal or state court.62
The 1997 amendments to the IDEA added a provision permitting parents to seek private
school tuition reimbursement if their school district has failed to make a FAPE available.63 That
provision is titled “[p]ayment for education of children enrolled in private schools without
consent of or referral by the public agency” and states:
;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;
55 “The Education Amendments of 1974 . . . added important new provisions to the [EHA, requiring] States to: establish a goal of
providing full educational opportunities to all handicapped children; provide procedures for insuring that handicapped children and
their parents or guardians are guaranteed procedural safeguards in decision regarding identification, evaluation, and educational
placement of handicapped children; establish procedures to insure that, to the maximum extent appropriate, handicapped children,
including children in public or private institutions or other care facilities, are educated with children who are not handicapped; and that
special classes, separate schooling, or other removal of handicapped children from the regular education environment occurs only
when the nature of severity of the handicapped is such that education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily . . . .” 1975 U.S.C.C.A.N. 1425, 1430, 1432, 1975 WL 12452, at *8 (Leg. Hist.); see Pub. L.
No. 94-142, sec. 3, § 601(b)(8), 89 Stat. 773, 775; see also Pub. L. No. 94-142, sec. 3, § 601(b)(9), 89 Stat. 773, 775 (“[I]t is in the
national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of
handicapped children in order to assure equal protection of the law . . . .”).
56 Education of the Handicapped Act Amendments of 1990, Pub. L. No. 101-476, 104 Stat. 1103; 1990 U.S.C.C.A.N. 1723, 1784
(1990). The IDEA was further amended in 1991, Pub. L. No. 102-119, 105 Stat. 587 (1994), in 1997, Pub. L. No. 105-17 (1997), and
in 2004, Pub. L. No. 108-446 (2004).
57 Saba, supra note 54, at 138; Gordon, supra note 26, at 194–96. The 1997 amendments included greater specification of the IEP
team, Pub. L. No. 105-17, § 614(d)(1)(B), 111 Stat. 37, 85 (1997), and expanded the contents of the IEP, making it a comprehensive
document with the objective of enabling a child “to be involved and progress in the general curriculum.” Pub. L. No. 105-17,
§ 614(d)(1)(A)( ii)–( iii), 111 Stat. 37, 84–85.
58 20 U.S.C. § 1412(a)(3) (2012) (describing the “child find” requirement).
59 20 U.S.C. § 1412(a)(1)(A) (requiring a state to submit a plan to the Secretary of Education reflecting policies guaranteeing
availability of a FAPE “to all children with disabilities residing in the State between the ages of [three] and [twenty-one], inclusive,
including children with disabilities who have been suspended or expelled from school”).
60 20 U.S.C. § 1412(a)(5)(A).
61 20 U.S.C. § 1414(d) (2012) (providing for the development of an IEP for each child classified as disabled under the IDEA that
specifies the setting in which a child is to be educated, the supplemental services and modifications, as well as annual goals).
62 20 U.S.C. § 1415(b)(6)(A) (2012); see also N. Y.S. Ed. Law § 4404(1), 8 N.Y.C.R.R. 200.5(h)–(l) (setting forth requirements for
mediation or the impartial due process hearing procedure). New York has a two-tiered administrative procedure. The initial complaint
is heard by an Officer (“IHO”). N. Y.S. Ed. Law § 4404(1); 8 N. Y.C.R.R. 200.5( i), (j). An appeal may be taken to the second level for
review by a State Review Officer (“SRO”). N. Y.S. Ed. Law § 4404(2); 8 N. Y.C.R.R. 200.5(k). Final determinations of the SRO may
be appealed to either the state supreme or federal district court. N. Y.S. Ed. Law § 4404(3); 8 N. Y.C.R.R. 200.5(l).
63 20 U.S.C. § 1412(10)(C)( ii); see Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, §
612(a)(10)(C)( ii), 111 Stat. 39, 63; C.B. ex rel. B.B. v. Special Sch. Dist. No. 1, 636 F.3d 981, 988 (8th Cir. 2011); see also Katie
Harrison, Direct Tuition Payments Under the Individuals with Disabilities in Education Act: Equal Remedies For Equal Harm, 25 J.
CIV. RTS. & ECON. DEV. 873, 880–81 (2011) (arguing that the statute should explicitly allow for prospective reimbursement for
unilateral private school enrollment where a public school district has failed to make a FAPE available). Exception is taken to Ms.
Harris’s suggested language to the extent that it would require a child to have “received special education and related services under
the authority of a public agency . . . .” Id. at 902. This is antithetical to Forest Grove School District v. T.A., which justified tuition
reimbursement after finding a FAPE deprivation where parents provided the school district with independent evaluations and the
school district refused to provide an IEP and special education services were never delivered within the public school. Forest Grove
Sch. Dist. v. T.A., 557 U.S. 230, 240 (2009).