A FREE APPROPRIATE PUBLIC EDUCATION (FAPE) and FAPE REVISITED

1. A FREE APPROPRIATE PUBLIC EDUCATION (FAPE) and FAPE REVISITED Sherrie Brown Special Education and the Law February 2, 2009

2. IDEA requires that • School Districts provide a FAPE to students who meet eligibility criteria: • Children ages 3-21; • Have one of 13 disabilities or a child ages 3-9 who experiences developmental delays; and • Require special education and related services in order to benefit from public education.

3. But what is FAPE? • Special education and related services that: • Are provided at public expense (FREE) • Meet the standards of the SEA • Include an appropriate education • Are provided in conformity with the IEP • Individually designed to meet the unique needs of each child • No specific further statutory or regulatory definition.

4. Bd. of Education of Hendrick Hudson Central SD v. Rowley, 458 U.S. 176 (1982) • FACTS • All about Amy…. • Courts below: • District Court said IDEA required that program maximize potential of the student • 2nd Circuit Court of Appeals said IDEA required child to have an opportunity to achieve her full potential commensurate with the opportunity offered other children. • ISSUES • What is the standard for judging whether a student’s education is in fact appropriate for him or her? • What is the standard for judicial review of lower court decision?

5. Rowley majority held that • IDEA does not require that schools maximize a child’s potential. • Basic floor of opportunity required by IDEA means access to specialized instruction and related services. • There must be personalized instruction with sufficient support to permit the child to benefit educationally. • Two-part test is to be used by courts to determine compliance: • Has the State compiled with the procedures? • Is the IEP reasonably calculated to allow the child to benefit from the program?

6. Measuring Educational Benefit • What is the student’s present skill? • What is the potential of the student? • Has the student made progress towards potential? • Footnote in Rowley – passing from grade to grade. • Look at whole experience—social, emotional, educational. • Balancing benefits—weighing everything in determining FAPE.

7. Subsequent court decisions… • Higher State Standard • Several states, such as NJ, have state FAPE standards that require more than Rowley. • More than de Minimus Educational Benefit • Standard applied by five circuit courts (not in 9th). • Meaningful Benefit • 9th Circuit (M.L. v. Federal Way SD, 387 F. 3d 1101 (9th Cir. 2004)).

8. FAPE Standard 25 years later… • 1997 amendments focused on educational (in regular education curriculum) results not just access—e.g., state goals and indicators for performance required. • 1997 amendments include goals of independence and economic self-sufficiency. • 2004 amendments include goals of preparing students for further education, improving academic achievement and functional performance, etc. • 2004 amendments changed slightly to align with NCLB—i.e., state must establish goals for performance that…

9. … • Promote the purposes of the IDEA, • Are the same as the state’s definition of AYP, • Address graduation rates and dropout rates, • Are consistent with any other goals and standards, • States must adopt performance indicators and measurable annual objectives for progress of children under NCLB, and • State must report annually to DOE.

10. Is FAPE (substantive benefit standard) evolving? • What does this mean???? • A characterization of the level of educational benefit required—in 9th Circuit this is meaningful (great significance or meaning). • The breadth of the concept of education—well established that it is comprehensive. • How or by what criteria the requisite level of educational benefit should be measured (i.e., graduation, grades, test scores, etc.)—individualized or case-by-case approach?

11. J.L. & M.L. v. MI School District, (W.D. Wa 2006)* • Federal District court held that ALJ was relying on ‘old’ law – i.e., Rowley standard– in determining adequacy of the IEP for the student. • That the standard, in fact, has changed to reflect evolving goals of IDEA—i.e., self-sufficiency, independent living and had ignored the student’s goals of higher education. • Remanded although language clearly indicates that under new standard, MI loses. * On appeal and argued at 9th Circuit in December 2008

12. Conclusion from the court… • The IDEA calls for disability education programs which guide the student toward post-education independence and self-sufficiency. • In pursuit of that goal, students such as K.L. must receive educational opportunities which significantly advance them towards that end. • The IEPs developed in accordance with this statutory scheme must specifically • delineate the methodologies to be used to achieve these goals, • the time to be allotted to each of the services employed to that end, and • further must be geared toward the achievement of enumerated goals. • Where a previous year’s IEP has fallen short of the marks it set, the succeeding IEPs must identify the means to advance the student further.

13. How can NCLB be used modify FAPE? • All students are to be included in the accountability that NCLB mandates—i.e, meet standards—is that the Rowley standard? • NCLB requires schools to use “scientifically based research” to support program decisions—for students with disabilities also. • NCLB requires minimum qualifications for paraprofessionals—for students with disabilities also.

14. FAPE and specific issues • Extended school day or year • Methodology in relation to FAPE • FAPE and Lovaas Treatment • LRE and FAPE • Seattle School District v. B.S.

15. So, please consider these… • Can parents waive rights to FAPE? • Does FAPE guarantee a certain level of achievement? • Does passing from grade to grade in regular education necessarily mean child is achieving FAPE? • If child with behavioral disabilities is achieving adequately in school, but not at home…is it FAPE? • Are procedural violations always the kiss of death? • Must school district provide nonacademic services/extracurricular activities in order to meet FAPE?