Future Reflections Winter/Spring 2000, Vol. 19 No. 1


Extended School Year Services (ESY)—What the Courts Have Said

by Rose Kraft

Reprinted from ParenTalk, Winter 1999, a publication of The Parent’s Place of Maryland.

Editor’s Note: Following this article are some brief descriptions of blind kids who have received ESY services in the state of Maryland. The descriptions of these children, the reasons they received ESY, and the services they received may help you understand how the ESY guidelines described below are applied to real-life situations.


Some school districts have become very comfortable and familiar with ESY services and routinely include it in timely IEP discussions. Others resist providing it, and still others are simply uninformed. If you believe that your child may need ESY services, you will need to request an IEP meeting to discuss it. Be sure that there is sufficient time between the meeting and the end of the school year so that, if services are denied, you can file a due process complaint and get a decision before the school year ends. Here now, is the description of the evolution of ESY services through the court system:

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 children with disabilities. Several district court cases, beginning with Armstrong v. Kline (1979) and culminating with Reusch v. Fountain (1994), shaped the current 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 a child 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 education plan.

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 than the 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, Severely and Profoundly Impaired and Severely Emotionally Disturbed 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 in part, 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 home.

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 the 12-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 child.

Reusch v. Fountain (1994) found a Maryland school district to have 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 recommending a summer 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 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 children in 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 enrichment programs.”

The court went further and required that additional criteria be considered in addition to regression and recoupment time when considering a child 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 ESY should be provided.”

While litigation 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 ESY programs that were available only to the most severely disabled children, and (e) requiring that integration with nondisabled peers be provided in ESY programs 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.”


Alamo Heights 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 for the Handicapped Law Report 559:153 (Commonwealth Ct. of Pa. 1987).

Davila, R.R. (1990, Nov.). Office of Special Education and Rehabilitative Services Policy Letter 17, Education for the Handicapped Law Review 419.

Georgia Association for Retarded Citizens v. McDaniel, Education for the Handicapped 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 Schools (1989). 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 Policy Letter, Education for the Handicapped Law Review 213:255.

Stacey G. v. Pasadena Independent School District, Education for the Handicapped Law Report 554:206 (S.D. TX. 1982).