Settling IDEA Cases: Making Up is Hard to Do

28 Pages Posted: 8 Aug 2009 Last revised: 4 Aug 2010

See all articles by Mark C. Weber

Mark C. Weber

DePaul University College of Law

Date Written: September 9, 2009


Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues - and unique pitfalls - that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement device termed the 'resolution session.' Special education settlement agreements may be vulnerable to attack on the ground that they undermine the purpose of IDEA. Jurisdiction under IDEA for actions to enforce settlements is uncertain, and exhaustion defenses may bar the actions. There is an administrative offer-of-settlement provision whose interpretation is open to debate, and parents who prevail in special education disputes have an entitlement to attorneys’ fees that may, or may not, apply when a case is settled.

This Article provides a comprehensive description of the law of settlement of IDEA disputes. It delves into mediation and dispute resolution, discussing what can be mediated and how. It notes the courts’ general practice of enforcing settlement agreements as written, despite arguments that departures from settlement terms are justified. It marshals the arguments and caselaw regarding jurisdiction to enforce settlement agreements and the administrative exhaustion defense. It describes the offer-of-settlement rule and discusses its interaction with the attorneys’ fees provision. It considers attorneys’ fees for settlements, discussing the circumstances under which fees might be available to parents in IDEA settlements. Although this Article is intended primarily to be descriptive, it concludes with an evaluation that advances some steps for reforming the law of IDEA case settlement: a clarification of federal jurisdiction, a bypassing of exhaustion for civil actions enforcing settlements, and greater legislative guidance as to what forms of settlement may support fees.

Keywords: education, special education, disability, civil rights

JEL Classification: I20, I28, J71

Suggested Citation

Weber, Mark C., Settling IDEA Cases: Making Up is Hard to Do (September 9, 2009). Loyola of Los Angeles Law Review, Vol. 43, p. 641, 2010, Available at SSRN:

Mark C. Weber (Contact Author)

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
312-362-8808 (Phone)
312-362-5448 (Fax)

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