Part 1 – The IDEA
FAPE means “Free Appropriate Public Education.” It is the cornerstone of special education law and the core obligation that schools owe to students with disabilities. There are two definitions of FAPE in disabilities law. The IDEA requires that students with disabilities who qualify for special education receive a FAPE. Section 504 of the Rehabilitation Act of 1973, which applies to students with disabilities who receive regular or special education, also has its own FAPE requirement. The two are sufficiently different that they each deserve their own post. This post will address FAPE for students receiving special education under the IDEA.
The “free” part of FAPE is usually not a major area of dispute. Sometimes disagreements arise when schools want to charge a student fees, and the rule is that students with disabilities can only be required to pay a fee if the other students also have to pay the same fee. For example, if the school requires a fee of all of its students to go on a field trip, then the students with disabilities can be assessed the same fee. Students with disabilities cannot be assessed a larger fee than the other students, and they cannot be charged for services required by their IEPs.
The “public” part of FAPE is usually clear, and so is “education.” But what does “appropriate” mean? This is by far the most common area of dispute in special education law. Has a school deprived a student of a FAPE by denying him or her an appropriate education?
In the IDEA, Congress defined a FAPE as follows:
The term “free appropriate public education” means special education and related services that—
- (A) have been provided at public expense, under public supervision and direction, and without charge;
- (B) meet the standards of the State educational agency;
- (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
- (D) are provided in conformity with the individualized education program …
This definition has a frustrating flaw. In section (C), Congress unhelpfully defined a free appropriate public education in terms of an education that includes an appropriate preschool, elementary school, or secondary education in the State involved. This is circular, and it doesn’t provide much clarity on what an appropriate education actually entails.
The courts haven’t been much more helpful in terms of providing a clear and informative standard. In the seminal case of Board of Ed. v Rowley, the U.S. Supreme Court said that an appropriate education is one that confers meaningful benefit. In his dissent, Justice White rightly pointed out that meaningful is “no more enlightening than appropriate,” but the majority apparently did not agree. The Third Circuit Court of Appeals, which hears cases in Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands, elaborated on Rowley by saying that an appropriate education is one that conveys ” significant learning and meaningful benefit.”
More recently, the U.S. Supreme Court revisited the FAPE issue in Endrew F. v. Douglas County Sch. Bd. and purported to clarify itself by saying that an educational program that confers benefits that are merely “more than de minimus” is not meaningful and hence not appropriate. It also said that IEPs should contain goals that are appropriately ambitious. Clear now?
So what does this mean for parents? It means that there is no concise formula for what constitutes an appropriate educational program. What is appropriate will vary depending upon the particular student’s disability, strengths, and weaknesses. I tell parents to trust their own experience with their child. Are you seeing actual learning taking place, or does he or she seem stuck and to be making little progress? If progress is stalled or limited, it may be because the educational program is not appropriate. If the school is telling you otherwise, and purports to have data to show it, you may need some independently assessed data to either confirm or refute what the school is saying. To get started on understanding independent educational evaluations, take a look at one of my blogs on IEEs.
Rowley is still a good place to start. It’s an older case, but the U.S. Supreme Court recently reaffirmed much of its main thrust in Endrew F., which should definitely be read alongside Rowley.