1、1A FREE APPROPRIATE PUBLIC EDUCATION(FAPE)and FAPE REVISITED Sherrie BrownSpecial Education and the LawFebruary 2,20092IDEA requires thatnSchool Districts provide a FAPE to students who meet eligibility criteria:nChildren ages 3-21;nHave one of 13 disabilities or a child ages 3-9 who experiences dev
2、elopmental delays;and nRequire special education and related services in order to benefit from public education.3But what is FAPE?nSpecial education and related services that:nAre provided at public expense(FREE)nMeet the standards of the SEAnInclude an appropriate educationnAre provided in conformi
3、ty with the IEPnIndividually designed to meet the unique needs of each childnNo specific further statutory or regulatory definition.4Bd.of Education of Hendrick Hudson Central SD v.Rowley,458 U.S.176(1982)nFACTSnAll about Amy.nCourts below:nDistrict Court said IDEA required that program maximize pot
4、ential of the studentn2nd Circuit Court of Appeals said IDEA required child to have an opportunity to achieve her full potential commensurate with the opportunity offered other children.nISSUESnWhat is the standard for judging whether a students education is in fact appropriate for him or her?nWhat
5、is the standard for judicial review of lower court decision?5Rowley majority held thatnIDEA does not require that schools maximize a childs potential.nBasic floor of opportunity required by IDEA means access to specialized instruction and related services.nThere must be personalized instruction with
6、 sufficient support to permit the child to benefit educationally.nTwo-part test is to be used by courts to determine compliance:nHas the State compiled with the procedures?nIs the IEP reasonably calculated to allow the child to benefit from the program?6Measuring Educational BenefitnWhat is the stud
7、ents present skill?nWhat is the potential of the student?nHas the student made progress towards potential?nFootnote in Rowley passing from grade to grade.nLook at whole experiencesocial,emotional,educational.nBalancing benefitsweighing everything in determining FAPE.7Subsequent court decisionsnHighe
8、r State StandardnSeveral states,such as NJ,have state FAPE standards that require more than Rowley.nMore than de Minimus Educational BenefitnStandard applied by five circuit courts(not in 9th).nMeaningful Benefitn9th Circuit(M.L.v.Federal Way SD,387 F.3d 1101(9th Cir.2004).8FAPE Standard 25 years la
9、tern1997 amendments focused on educational(in regular education curriculum)results not just accesse.g.,state goals and indicators for performance required.n1997 amendments include goals of independence and economic self-sufficiency.n2004 amendments include goals of preparing students for further edu
10、cation,improving academic achievement and functional performance,etc.n2004 amendments changed slightly to align with NCLBi.e.,state must establish goals for performance that 9nPromote the purposes of the IDEA,nAre the same as the states definition of AYP,nAddress graduation rates and dropout rates,n
11、Are consistent with any other goals and standards,nStates must adopt performance indicators and measurable annual objectives for progress of children under NCLB,and nState must report annually to DOE.10Is FAPE(substantive benefit standard)evolving?nWhat does this mean?nA characterization of the leve
12、l of educational benefit requiredin 9th Circuit this is meaningful(great significance or meaning).nThe breadth of the concept of educationwell established that it is comprehensive.nHow or by what criteria the requisite level of educational benefit should be measured(i.e.,graduation,grades,test score
13、s,etc.)individualized or case-by-case approach?11J.L.&M.L.v.MI School District,(W.D.Wa 2006)*nFederal District court held that ALJ was relying on old law i.e.,Rowley standard in determining adequacy of the IEP for the student.nThat the standard,in fact,has changed to reflect evolving goals of IDEAi.
14、e.,self-sufficiency,independent living and had ignored the students goals of higher education.nRemanded although language clearly indicates that under new standard,MI loses.*On appeal and argued at 9th Circuit in December 200812Conclusion from the courtnThe IDEA calls for disability education progra
15、ms which guide the student toward post-education independence and self-sufficiency.nIn pursuit of that goal,students such as K.L.must receive educational opportunities which significantly advance them towards that end.nThe IEPs developed in accordance with this statutory scheme must specifically nde
16、lineate the methodologies to be used to achieve these goals,nthe time to be allotted to each of the services employed to that end,and nfurther must be geared toward the achievement of enumerated goals.nWhere a previous years IEP has fallen short of the marks it set,the succeeding IEPs must identify
17、the means to advance the student further.13How can NCLB be used modify FAPE?nAll students are to be included in the accountability that NCLB mandatesi.e,meet standardsis that the Rowley standard?nNCLB requires schools to use“scientifically based research”to support program decisionsfor students with
18、 disabilities also.nNCLB requires minimum qualifications for paraprofessionalsfor students with disabilities also.14FAPE and specific issuesnExtended school day or yearnMethodology in relation to FAPEnFAPE and Lovaas TreatmentnLRE and FAPEnSeattle School District v.B.S.15So,please consider thesenCan
19、 parents waive rights to FAPE?nDoes FAPE guarantee a certain level of achievement?nDoes passing from grade to grade in regular education necessarily mean child is achieving FAPE?nIf child with behavioral disabilities is achieving adequately in school,but not at homeis it FAPE?nAre procedural violations always the kiss of death?nMust school district provide nonacademic services/extracurricular activities in order to meet FAPE?
