EXTENDED SCHOOL YEAR
appears by kind permission of the author. Additional emphasis in
bold italics has been added by Roger N. Meyer. References to
cases italicized by name is found towards the end of this article]
FYI - It's getting
time to schedule those meetings with your schools to discuss ESY. Do
not let the schools jump past the ESY portion in your IEP meeting and
merely tell you your child doesn't qualify (no regression), so no need
for ESY. Regression is NOT the only requirement for ESY, I've bolded
important information below.
Also, don't let the
school tell you ESY is traditional summer school, it is not, although it
can be if it is appropriate to meet the child's IEP goals.
I often use ESY
services to negotiate additional services for children where the school
has "Failed to Identify", appropriately remediate a child's learning
problem, and/or failed to provide identified spec. ed. support or
related services. I've used it to give the school one more chance to
teach a child to read or to teach a child appropriate social skills,
before pulling out and privately placing the child at public expense.
The school system can pay for traditional summer school classes as ESY
services for instance, if a school failed to identify a child with a
disability, and the child failed the first semester of High School, and
now needs to make up courses during Summer School.
Extended School Year
can look at many things. Don't let the schools tell you no
automatically, and don't let them tell you it is only for the severely
disabled. NOT TRUE! Talk with an advocate, attorney, or disability
organization to find out more information.
GA Advocacy Office
PLSP I Graduate
1105 Rock Pointe Look
Woodstock, GA 30188
in this.orgmunication...is not meant to represent legal or medical
advice, but rather advice given based on my knowledge as a trained
Parent Advocate by the GA Advocacy Office, Council of Parent Advocates &
Attorneys, CHADD, LDA, and the GA DOE Parent Mentor program as an
invited guest. Please do not forward without my permission.
School Year (ESY
The Individuals with
Disabilities Education Act (IDEA) regulations requirethat ESY services
be considered annually for every child with a disability. An ESY Program
of services in the summer or weekends, must be provided if needed to
make a student's education program appropriate. "Under the law, a
school district may not limit ESY services for children with particular
categories of disabilities, and may not limit the type, amount or
duration of ESY." (Ed Law Center - PA)
A school system cannot
use a "lack ofavailable funds" argument to deny ESY services to a child
with a disability. School districts must look at issues beyond
regression or recoupment when determining ESY eligibility.
ESY is NOT traditional
summer school, but rather an extension of an individual child's
The following is taken
It is a summary of
judicial decisions regarding ESY.
by Rose Kraft
Since the precedent
for extended school year programming was set in the Armstrong v.
Kline case in Philadelphia, in a large number of instances the
courts have been asked to determine the eligibility of individual
children for extended school year services. This summary looks at the
judicial decisions that have been rendered regarding this issue.
Judges and lawmakers
have made significant decisions during the last 20 years, which define
extended school year (ESY) services for childen with disabilities.
Several district court cases, beginning with Armstrong v. Kline
(1979) and culminating with Reusch v. Fountain (1994), shaped
thecurrent federal regulations. For the first time in the history of
the Individuals with Disabilities Education Act (IDEA), these
regulations require that ESY services be considered annually for every
child with a disability. Each team that develops an individual
education plan (IEP) for achild must decide if ESY services are
necessary so that the child can avoid regression, a lengthy recoupment
of lost skills, or other difficulties that could interfere with the
The first significant
case in this arena was the Armstrong case, in which the judge ruled that
a mandated 180-day school year violated a child's right to a free
appropriate public education (FAPE), specifically in reference to
children with severe and profound impairments or severe emotional
disturbances. The court stated that, "By its terms, the Act (meaning
the Education for All Handicapped Children Act) appears to demand that
the state supply instruction designed to meet all of the handicapped
child's "unique needs" without limitation." The court also required
state and local school districts "to provide an education to handicapped
children in excess of 180 days," as determined by each child's needs.
This case defined that
a school system's goal for these severely affected children should
be self-sufficiency, which could require providing more thanthe
same 180 days to disabled children that is provided to non disabled
children. This case was upheld on appeal by the circuit court, which
agreed that, "For some, but not all, SPI and SED children, standing in
the way of the attainment of some of these objectives (for
self-sufficiency) is the effect of breaks in the educational program
which are created, at least inpart, by the 180 day rule." The court
also noted that recoupment time for lost skills is "usually much
greater" for children with disabilities.
Once the courts
ordered state and local school systems to provide more than 180 days of
school per year to some children with disabilities, families across the
nation began taking their school systems to court. In Stacey G.v.
Pasadena Independent School District (1982), a 12-month program
without major breaks was ruled necessary for a child with autism and
severe mental retardation. In Georgia Association for Retarded
Citizens v. McDaniel (1983), the court ruled that a school system
cannot use a "lack of available funds" argument to deny ESY services to
a child with a disability. A school system must look at the
child's needs, rather than at its budget, when determining summer
services for a child. The judge in Alamo Heights Independent
School District v. State Board of Education (1986) noted that
transportation services must be part of the ESY package for a child,
even if the bus must get that child from a babysitter's out-of-district
The case of Bucks
County Public Schools v. Commonwealth of Pennsylvania (1987) showed
that academic regression isn't the only qualification for ESY
eligibility. The judge in the Bucks County case stated that regression
in emotional development for severely emotionally disturbed children is
often "caused by interruptions in the educational programming," and
ordered that prediction of regression in emotional development qualifies
as a need for ESY. Holmes v. Sobol (1988) was a significant case
because it found that physical therapy was a related service that could
be provided for ESY, and further ruled that a related service can be a
sole special education program. This case stated that without the
maintenance of physical strength through therapy, the child would not be
able to benefit from his general education. In Williams v. Gering
Public Schools (1990), the parents of a child with multiple
disabilities believed that a 12-month program could only be provided for
their child in a residential placement. This court agreed that the child
needed a 12-month school program in order to receive a free appropriate
public education, but did not require that it be provided in a
residential facility. The court ordered the school district to provide
the12-month program at a local facility for multi handicapped children,
specifying that an interruption from one school to another just for a
summer program would provide an unacceptable level of regression for the
Reusch v. Fountain
(1994) blasted a Maryland school district for deceptive and
purposeful policies which sought to deprive children of ESY services .
The school district had (a) refused to notify parents of a child's
eligibility for ESY services, (b) written misleading letters
r.orgmending asummer program that required tuition from the parents, (c)
told school administrators to refer parents to central administration
when they asked for ESY services, (d) purposely didn't mention ESY
services until it was too late to deliver them, and (e) never told
parents they had a right to request ESY services. The judge
used strong language as he set the parameters for ESY policies for
children with disabilities. "The MCPS practice of inadequate and
untimely ESY notice must cease. Notice of ESY designed to fully explain
such services must be provided to parents of disabled childrenin a
timely fashion before annual review meetings. The notice must not
disguise or downplay the true nature of ESY or attempt to confuse
parents between free extended year services and tuition-charging summer
The court went further and required that additional criteria be
considered in addition to regression and recoupment time when
considering achild for ESY services. The court decided that "emerging
skills" and"breakthrough opportunities" (as when a child is on the brink
of learning to read) -- can and should be incorporated into the
eligibility analysis." A fixed-length program was also ruled illegal by
this court, which ordered the school district to "make individualized
determinations of the number of weeks, days per week, and hours per day
that each student receiving ESYshould be provided."
continued in courtrooms across the country, the Office of Special
Education Programs and the Office of Special Education and
Rehabilitative Services wrote policy letters, which provided
interpretation of the federal regulations for school districts. The
Office of Civil Rights wrote letters of finding which defined when the
denial of ESY services violated a person's civil rights. Together these
letters provided parallel support for the court decisions by
(a) defining ESY criteria and related services in
an ESY program, (b) requiring school districts to look at issues beyond
regression or recoupment when determining ESY eligibility, (c)
emphasizing the need to set higher ESY standards than simply working
toward self-sufficiency, (d) refusing to allow school districts to offer
ESYprograms that were available only to the most severely disabled
children,and (e) requiring that integration with nondisabled peers be
provided in ESYprograms if required by the IEP.
The result of the
court cases and substantive letters has led to the written federal
regulations, which describe how ESY services are to be implemented
according to IDEA. The regulations define ESY as "special education and
related services" which (a) go beyond the normal school year, (b) are
addressed and mandated by the IEP, and (c) are free to the parents. The
regulations also require that ESY services are available to each child
with a disability and, "The determination of whether a child with a
disability needs extended school year services must be made on an
individual basis by the child's IEP team." 34 CFR §300.309 (1997)
The regulations also
add two notes clarifying these definitions. The first note states that
school districts cannot limit ESY services to "particular categories of
disability or unilaterally limit the duration of services." The second
note gives states the authority to set standards for use in determining
ESY eligibility "on an individual basis," suggesting the consideration
of factors such as the "likelihood of regression, slow recoupment, and
predictive data based on the opinion of professionals."
Independent School District v. State Board of Education,
Education for the
Handicapped Law Report 554:315 (5th Cir. 1986).
Armstrong v. Kline,
Education for the Handicapped Law Report 551:195 (E.D.Pa. 1979).
Baltimore (MD) City Public Schools (1986).
Office of Civil Rights
Letter of Finding, Education for the Handicapped Law Review
352:185.Battle v. Commonwealth, Education for the Handicapped Law Report
551:647(3rd Cir. 1980).
Bucks County Public
Schools v. Commonwealth of Pennsylvania, Education forthe Handicapped
Law Report 559:153 (Commonwealth Ct. of Pa. 1987).
Davila, R. R. (1990,
Office of Special
Education and RehabilitativeServices Policy Letter, 17 Education for the
Handicapped Law Review 41.
for Retarded Citizens v. McDaniel, Education for theHandicapped Law
Report 555:251 (11th Cir. 1983).
Holmes v. Sobol,
Education of the Handicapped Law Report 559:463 (W.D. Ny.1988).
Mesa (AZ) Public
Office of Civil Rights
Letter of Finding,16 Education for the Handicapped Law Review 316.
Reusch v. Fountain, 21
Individuals with Disabilities Education Law Report 1107 (D. Md. 1994).
Schrag, J. A. (1989,
Aug.). Office of Special Education Programs PolicyLetter, Education for
the Handicapped Law Review 213:255.
Stacey G. v. Pasadena
Independent School District, Education for theHandicapped Law Report
554:206 (S.D. Tx. 1982).
Turnbull, H.R. III, &
Turnbull, A.P. (1998).
public education: The law and children with disabilities (5th ed.).
Publishing Company.Will, M. (1987, Aug.).
Office of Special
Education and Rehabilitative Services Policy Letter, Education for the
Handicapped Law Review 211:481.
Williams v. Gering
Public Schools, 17 Education of the Handicapped Law Report 427 (Ne. S.
School Year Services (ESY)
- Info from
Many parents have
questions about extended school year services. If you have questions
about a legal issue, you should do your own legal research. Do
not accept legal advice from school personnel. While they may
tell you what they believe is true, in many cases, they have not read
the law and regulations for themselves. You need to know what
the law and regulations say
Read what the IDEA
statute says about your issue. Next read the federal regulations and
your state special ed regulations about your issue. ( The IDEA statute
and regulations are in Wrightslaw: Special Education Law and in the
Statute and Regs section of the Wrightslaw site).
Next read a case or
two about your issue (check the Caselaw Library). If you take these
steps, you will have a clear understanding of the issues and variables.
You will find that
extended school year (ESY) is not mentioned in the IDEA statute, but is
in the IDEA regulations. Read the IDEA regulation about ESYat 34 CFR
Section 300.309 (page 165, Wrightslaw: Special Education Law).
We selected two cases
about ESY to help you understand these issues: Daniel Lawyer v.
Chesterfield and Reusch v. Fountain. For more information, check the
Topics Pages - especially the FAPE and IEP pages.
Lawyer v. Chesterfield School Board (1993) Danny Lawyer is a
young child with autism. At age six, he had expressive language and
phonological processing problems. The experts who evaluated and treated
Danny advised his parents that his ability to be self-sufficient and
independent later in life would depend on his ability t.orgmunicate.
During the summer, Danny regressed in his ability to.orgmunicate. His
behavior deteriorated. His school district refused to provide any
speech language therapy during the summer months - and refused to
reimburse his parents for the services they purchased for their son.
The parents requested a special education due process hearing and
prevailed. The school district appealed. The Review Officer
overturned the Hearing Officer's decision. The case was appealed to
After reviewing the
record and hearing new testimony, Judge Spencer concluded,
"Regression is not the only factor" in deciding if a child
needs ESY services. The judge listed
several additional factors that IEP teams should consider in making ESY
behavioral or physical problems;
of alternative resources;
Areas of the
child's curriculum that need continuous attention;
In "Lawyer," Judge
Spencer discussed regression and recoupment. He also discussed the need
to take advantage of "windows of opportunity" in educating children with
disabilities: " Danny's regression in the summer, coupled with nominal
recoupment, severely limits the educational benefits he receives from
instruction during the school year. His rate of progress is minimized
by the interplay of continuous regression and recoupment." "Moreover,
Danny's behavioral problems are.orgpounded by his severe language
deficit. His inability to effectively.orgmunicate triggers unacceptable
behavior. Therefore, it is critical that Danny be provided with
continuous speech and.orgmunication services." "Finally, the evidence
provided by expert witnesses indicates that for children who suffer from
moderate to severe childhood autism, there is a small, but vital,
window of opportunity in which they can effectively learn. Such
period is generally between the ages of five and eight years old"....The
Court concludes that it is extremely important that at this critical
stage of development, Danny receive uninterrupted speech language
Read the decision in
Lawyer v. Chesterfield.
Reusch v. Fountain (1994) In Reusch v. Fountain, 872 F.Supp.
1421 (D. MD 1994), a federal court addressed the school districts
"hostility to providing ESY." In this case,the court found that parents
were prevented from advocating for their children by the
district's refusal to provide parents with notice about their right to
request these services. The district also engaged in
delaying tactics by requiring parents to attend futile
meetings. The court found that, in this district, administrative
convenience took precedence over providing FAPE to children with
disabilities. Educational decisions were not individualized according to
the needs of the child.
for IEP Teams to Consider
In Reusch v.
Fountain, the court listed six factors that the IEP team should
consider in deciding if the child is eligible for ESY as a related
and recoupment - is the child likely to lose critical skills or fail to
recover these skills within in a reasonable time;
2. Degree of
progress toward IEP goals and objectives;
skills/breakthrough opportunities - Will a lengthy summer break cause
significant problems for a child who is learning a key skill, like
Behavior - does the childs behavior interfere with his or her ability to
benefit from special education;
and/or severity of disability;
circumstances that interfere with childs ability to benefit from special
Citing Pete's case,
Florence County School District Four v. Shannon Carter, the District
Court found that: "In any contest between systematic efficiency and the
provision of FAPE to a disabled child, Congress and the Supreme Court
have made it clear that the child must prevail."
- The importance of making a decision about ESY early enough in the
school year to allow the parents adequate time to exercisetheir rights
administrative review or appeal in a timely fashion. That the
explanation about ESY contained in a brochure distributed to all
studentswas not sufficient and ordered that the student's eligibility
for ESY be considered at each annual review meeting, and the parents
sign a form acknowledging their receipt of this information. The
district must documentthe discussion and the decision reached after
consideration of ESYeligibilty at each annual review meeting.
- The content of child's ESY program must be determined on an individual
basis. The duration is also based on individualized determinations of
the number of weeks, days per week,and hours per day that each student
receiving ESY should be provided.
Peter W. D. Wright and Pamela Darr Wright.
All rights reserved.
Carol Sadler to
IEPadvocate4You at 3/14/2005 05:59:00 AM