Extended School Year
What Do the Courts Say?

I. The Bixby Case [1]

In this case, the school district held rigidly to a regression/recoupment theory to determine eligibility for Extended School Year (“ESY”) services.  The district won all the way through the U.S. District Court level but lost on appeal.  The Appellate Court in Oklahoma held that the following factors, other than regression/recoupment, can and must also be considered: [2]

  1. Degree of regression suffered in the past;
  2. Exact time of past regression;
  3. Ability of the child’s parents to provide educational structure at home;
  4. Child’s rate of progress;
  5. Child’s behavioral and physical problems;
  6. Availability of alternative resources;
  7. Ability of the child to interact with non-handicapped children;
  8. Areas of the child’s curriculum which need continuous attention;       
  9. Child’s vocational needs;
  10. Whether the requested services are “extraordinary” for the child’s condition, as opposed to an integral part of a program for populations with the same condition.

The court was also careful to point out that the above constitute only factors that they could think of offhand, and that this is not necessarily an exclusive list.  It was further stated that four other federal circuits have held that the states must provide continuous educational experience through the summer under the child’s IEP if that is the “appropriate” educational experience for the child’s individual situation.[3]   A footnote in the case does cite one district court that has limited the provision of summer educational programs to those children who can prove “irreparable regression.[4]

This court, however, indicated a clear preference to adopt the 5th Circuit’s broad premise as articulated in the Alamo Heights case.[5]  In that case, the court stated that:

…The issue is whether the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months.   This is, of course, a general standard, but it must be applied to the individual by [those drafting and approving the IEP] in the same way that juries apply other general legal standards such as negligence and reasonableness.

In individual cases, analysis should proceed by applying not only retrospective data, such as past regression and rate of recoupment, but also should include predictive data,[6]based on the opinion of professionals in consultation with the child’s parents, as well as circumstantial considerations of the child’s individual situation at home and in his or her neighborhood and community.  As indicated above, the regression/recoupment analysis, then, is not the only measure used to determine the necessity of structured summer programs.  Under the Act, documentation concerning both past regression and predictions of future regression should be considered, an analysis which requires investigation into many aspects of the child’s educational, home, and community life.

In 1995 the federal Office of Special Education Programs (“OSEP”) considered an written inquiry regarding individual states adopting the Bixby standard for ESY determinations. Specifically, OSEP stated:

States may establish their own policies and procedures on ESY so long as they are consistent with Part B of IDEA, and thus a 10th Circuit Court decision in the case of Johnson v. Bixby, which calls for predictive data in addition to past regression and recoupment to factor into the ESY eligibility determination, may be used. The ruling is consistent with Part B’s requirement for individualized ESY determinations, and thus it would not be permissible for a state to adopt a policy of refusing to consider information, such as predictive data, that may be relevant to the determination of whether a [] child needs ESY services.

Letter to Anonymous, 22 IDELR 980 (OSEP 1995)

II.  Reusch v. Fountain, 21 IDELR 1107 (U.S. District Court-M.D. – 12/29/94)

The Maryland Disability Law Center brought an action against the District for failing to provide individualized ESY services.  This case was tried before the judge, not a jury.  He said:

1. ESY would appropriately be a part of FAPE for a relatively small number of pupils;

2. The District had “acted affirmatively to avoid” its legal obligations to provide ESY to disabled children.  This was done by:

a.) Giving parents inadequate notice and creating excessive delays in processing requests;

b.) Creating obstacles to parents and teachers who wish to advocate ESY for a particular child;

c.) Applying an overly restrictive eligibility standard;

d.) Failing to individualize ESY in the few cases it agrees to eligibility.

The court, as do all courts, begins with Rowley’s two questions then says that failure to get a passing grade on Question #1 (Has the District complied with the procedural requirements of IDEA?) is enough for a court in the Fourth Federal Appellate Circuit to determine there has been no FAPE conferred.  Again, the District decisions are suspect when they do not follow procedures!  The court then says:

De-individualized placements expressly violate the regulations and impact negatively on parental rights.

Moreover, systematic or unreasonable delays in formulation and implementation of IEP’s violate IDEA.  The court then reviewed decisions in Circuits 3, 6, 11, 5, and likeminded OCR policy.  (The court missed the Bixby case! > 10th Circuit).

Here is what this District did (or didn’t) do:

1. The superintendent wrote a 1979 “smoking gun” memo saying Maryland was going to take a “hard line” against ESY.

2. Provided no ESY to anyone from the time Armstrong v. Kline was decided (1979) for ten years.

3. Gave parents a choice of paying for “summer enrichment” themselves or fighting the bureaucracy; these alternatives are neither individualized nor free.

4. Omitting – by policy and in violation of a specific state law – any discussion of ESY at annual reviews.

5. Creating a two-tiered eligibility system that was so complicated no parent could get through it.  Also, the second tier never overruled the first in cases where the first tier rejected ESY!

6. Rigidly used regression/recoupment for eligibility, and applied even this in an inconsistent and arbitrary manner.

Needless to say, this case involved an abundant number of “Rowley Refusals” to which this Court did not take kindly.  The district, of course, lost.

III.  Extended School Year and Attorney’s Fees

Beard v. Teska, 21 IDELR 440 (10th Cir./1994/Oklahoma/Judge Shadur)

This case stems from a 1985 civil rights class action against a treatment center in Oklahoma.  The court[7] severed the education issues, and in 1990, a settlement agreement was signed which effectively resolving these issues.  Essentially, the State Department of Education is appealing a fee award by the District Court, in favor of class plaintiff’s attorney, for efforts which culminated in the settlement agreement.  They claim they should not have to pay for three maters they say are unrelated to the settlement, plus they complain that the $200 across-the-board hourly rate is too high.  There was a detailed evidentiary hearing establishing that there were only about six educational law specialist in the whole state, charging between $75-125/ per hour and a national survey was introduced which concluded the ‘average’ hourly rate for these cases at that time was $125.


1. Activities to enforce the settlement agreement are recoverable under the Protection Act;

2. Settlement of an action is enough to confer “prevailing party” status;

3. The legal standard for fee awards is a “prevailing market value” test – i.e., that customarily paid in the community for like services. And “the uncontradicted evidence pegs that at $125/hour.”[8]


Illinois defines extended school year services as “special education and related services that are provided to a child with a disability beyond the normal school year of the public agency in accordance with the child’s IEP and at no cost to the parents of the child and meet the requirements of Section 226.750 (c).”  23 Ill.Admin.Code 226.75. Both the 1999 IDEA Federal Regulations and the 2000 Illinois Special Education Regulations state that school districts may not:

1. Limit extended school year services to particular categories of disability;

2. Unilaterally limit the type, amount, or duration of those services.

34 C.F.R. 300.309 and 23 Ill.Admin.Code  226.750 (c)

In the past many school districts did have policies of categorically limiting their provision of extended school year services to students in certain disability categories or to certain severity levels within the categories. The new regulations make it quite clear that such policies or practices are not permissible. Moreover, all extended school year programming decisions must be made on a case-by-case basis, based on the individual needs of the students.


At the present time, the 7th Circuit has not, on the appellate level, issued a clear articulation of its position on ESY.  A significant number of circuits in the federal system favor a flexible approach, and only one has adopted an analysis based on singular considerations.  To follow an inflexible policy of determining ESY eligibility places districts in an unacceptable liability exposure position. While the new Illinois Special Education Regulations mirror the Federal Regulations by  precluding school districts from unilaterally limiting ESY services, the State Regulations do not articulate a standard for determining when ESY services should be provided.

We recommend that, on reviewing students’ eligibility for extended school year or extended school day programs, consideration of whether the child’s individual needs merit such a program should be similar to those enunciated in the Bixby case.  Remember, the case law analysis in this area is flexible and is done on a case-by-case basis, within the context of meeting all of the child’s individual needs.  To use a method of analysis adopted by only one Federal circuit is to tempt fate.


[1]Natalie Johnson, by Fred and Jennifer Johnson v. Independent School District No. 4 by Bixby, Tulsa County, Oklahoma, 921 F.2d 1022 (10th Cir. 1990).


[2]  A Hawaii District Court in Lee v. Thompson,  EHLR 554:429 (D.Haw.1983) had held earlier that other factors besides regression/recoupment should be considered. In this case the court stated that the nature of the disability, areas of learning crucial to the goals of self sufficiency and independence, extent of regression caused by the interruption and the rate of recoupment should all be considered.

[3]Georgia Ass’n of Retarded Citizens v. McDaniel, 716 F.2d 1565 (11th Cir. 1983), modified on other grounds, 740 F.2d 902 (1984), cert. Denied 469 U.S. 1228, q05 S.Ct. 1228, 84 L.Ed.2d 365 (1985); Crawford, 708 F.2d at 1034; Yaris, 558 F.Supp. at 559; Battle, 629 F.2d at 281.

[4]Bales v. Clarke, 523 F.Supp. 1366 (E.D. Va. 1981).

[5]Alamo Heights Independent School District  v. State Board of Education, 790 F.2d. 1153 (5th Cir. 1986).

[6]Cordrey v. Euckert, 917 F.2d 1460 (6th Cir. 1990), ruled that regression in the past does not need to be shown to justify the need for ESY programs, because predictive data may be used. In addition, courts have held that regression does not need to be in academic areas only but that regression in emotional functioning, communication skills, or physical skills may be sufficient reasons for an ESY program. See Cremeans v. Fairland Local School Dist., 91 Ohio App.3d 668 (1993) and Birmingham and Lamphere School District v. Superintendent of Public Instruction, 120 Mich.App.465 (1982).

[7] The Honorable Milton Shadur sitting by designation.

[8] A more recent Minnesota case supported a $300 hourly rate