For these students, the courts have utilized the equitable remedy (meaning that it was created by judges to right a wrong) of compensatory education. Compensatory education for younger students, who are still subject to the IDEA, comes into play when a school district has seriously deprived a student of the educational services he or she should have received. For example, a student with a learning disability whose district consistently refused to evaluate him could be awarded compensatory educational services by a hearing officer or court -- services such as summer tutoring, additional supports during the school year, or placement in a specialized school -- which are designed to "make up" for the school's failure to properly identify the student as one who needed IDEA services.
But what about students who have already graduated from high school or aged out of eligibility for IDEA services? As the U.S. Court of Appeals for the First Circuit has noted, “In order to give meaning to a disabled student’s right to an education between the ages of three and twenty-one, compensatory education must be available beyond a student’s twenty-first birthday. Otherwise, school districts simply could stop providing required services to older teenagers, relying on the Act's time-consuming review process to protect them from further obligations.”1
Federal Courts have found that the age of the student seeking "post graduation" compensatory services does not make a student ineligible for such services. As a federal court in Indiana noted, the fact that the student was “now 24 years old does not moot his case. The Court may award adult compensatory education if it is necessary and appropriate to cure a past violation of the IDEA.”2
The courts that first crafted this use of compensatory education built on the reasoning in cases that provided for tuition reimbursement under the predecessor statute to the IDEA, noting that, like retroactive tuition reimbursement, compensatory education required school districts to “belatedly pay expenses that [they] should have paid all along.”3
For students no longer covered by the IDEA - because they have graduated or have aged out of eligibility - compensatory education can take the form of post-secondary education, requiring payment for a student who had already graduated high school to attend a reading program at a college for students with learning disabilities. It has also been used to require a school district to provide annual reevaluations and annual IEPs for a student over the age of 21. However, it is generally available only where there has been a gross deprivation of a student's rights. It is not an easy remedy to obtain and cannot really compensate for having an appropriate education during the years prior to graduation.
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 Phil v. Mass. Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993)
 Brett v. Goshen Community Sch. Corp., 161 F. Supp. 2d 930 (N.D. Ind. 2001)
 800 F.2d 749, 754 (8th Cir. 1986).