My son graduated from high school in 2007. He was diagnosed as LD in school. The question is this: if I have him tested by OVR, and find that his disability is more than what the school lead on to believe, do I have right to take legal action against the school district? Especially if there was a misleading on the severity of his LD, or if there is mental retardation involved?
You ask whether the public school may have responsibility for your son subsequent to his graduation, if it is discovered that he was misdiagnosed (and presumably inappropriately educated) by the public schools. Some courts have held that a student may obtain relief from a school system for failing to provide appropriate services prior to graduation even after graduating. However, the courts use what is called a statute of limitations, which means that individuals may only bring complaints against the school for problems within a specific time frame prior to filing a request for a special education due process hearing.
Under federal law, unless the state school code has a different statute of limitations, there is a two year limitations period. This means that you could only bring an action relating to alleged failures within two years of the time period back from the date that you requested the impartial special education due process hearing. In order to obtain relief for failures prior to graduation, it would be necessary to show that the school failed to provide an appropriate education and that the student sustained significant disruption to their educational progress as a result.
The remedy that is generally permitted for such claims is what is called compensatory education. This generally means that at most the student may receive services designed to make up for the services they should have received if they had received a free appropriate public education. The courts overwhelmingly hold that schools are not liable for money damages, pain and suffering or other damages similar to those that might be obtained for malpractice or civil rights violations.