Not a Bad Idea: The Increasing Need to Clarify Free Appropriate Public Education Provisions under the Individuals with Disabilities Education Act

Article excerpt

"[I]t is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education." (1)

I. Introduction

The Supreme Court has long stressed the importance of providing equal education opportunities to children. (2) Additionally, the Court has emphasized that the Due Process Clause prohibits school personnel from removing a student for violating its code of conduct "absent fundamentally fair procedures to determine whether the misconduct has occurred." (3) The rights of disabled children to receive an equal education, including fundamental procedural-due-process rights, have developed considerably in the past three decades. (4)

Efforts to ensure disabled students receive the same opportunities as their nondisabled peers are reflected in both federal and state laws. (5) The first congressional breakthrough occurred with the passage of the Education for All Handicapped Children Act of 1975 (EHA). (6) Over time, amendments improving the EHA were made, and it is now better known as the Individuals with Disabilities Education Act (IDEA). (7)

The central tenet of the IDEA mandates a "free appropriate public education" (FAPE) for students with disabilities. (8) Under its provisions, the IDEA sets forth both procedural and substantive mandates regarding the rights of both children and parents to receive an individualized education program (IEP), as well as a process for challenging placement changes. (9) While the IDEA is intended to protect disabled students' rights not to be excluded or denied from the benefits of a public education, the litigious nature of its unclear provisions--and lack of Supreme Court guidance--has created continuous controversy. (10) The most notable and frequent disputes arise over two issues: the statute's procedural safeguards, and what constitutes an "appropriate" education. (11) Recently, the Supreme Court declined the opportunity to clarify and resolve both major issues by denying certiorari to Doe ex rel. Doe v. Todd County School District. (12)

This Note argues that in Todd County, the Eighth Circuit erred by holding that disabled students are limited to procedural-due-process rights under the IDEA when they are placed in an alternative setting during a disciplinary suspension. (13) Specifically, by limiting disabled students who seek to challenge a suspension that triggered an interim placement change to the safeguards under the IDEA, the result contradictorily affects their fundamental procedural-due-process rights and guaranteed right to a FAPE. (14) Part II.A of this Note explores the historical development of special education, focusing on the IDEA and its evolution. (15) Part II.B discusses FAPE, as well as the various standards that have been developed to attempt to determine what is an "appropriate" education. (16) Part II.C explores student due-process rights, primarily by looking at those contained in the IDEA and their connection to FAPE, and also provides an overview of the Eighth Circuit's decision in Todd County. (17)

Part III analyzes the potential underlying impact of the Eighth Circuit's decision, focusing on how inadequate procedural safeguards correlate to a negative impact on an "appropriate" education. (18) Part III.A analyzes the Eighth Circuit's decision--specifically, whether it incorrectly determined that Doe's procedural-due-process rights were limited to those under the IDEA. (19) Further, Part III.B analyzes the implications of that decision on FAPE. (20) Part III.C highlights the repercussions of the Eighth Circuit's holding, and exposes how the court could have used this case to provide more comprehensive, coherent procedural-due-process rights to students, while simultaneously setting forth a less ambiguous definition of what constitutes an "appropriate" education. (21) Lastly, Part IV concludes by urging the Supreme Court to intervene and resolve these recurring issues by correcting the Eighth Circuit's limitation on procedural-due-process rights and providing a heightened, unambiguous FAPE standard. …