Academic journal article Exceptional Children

Is It Time for Elevating the Standard for FAPE under IDEA?

Academic journal article Exceptional Children

Is It Time for Elevating the Standard for FAPE under IDEA?

Article excerpt

The cornerstone of the Individuals With Disabilities Education Act (IDEA) is the child's entitlement to "free appropriate public education" (FAPE), as documented in an individualized education program (IEP). Ever since the inception of the original version of IDEA in 1975, the key question has been the operational meaning of FAPE, that is, what is the extent of the child's entitlement (or, conversely, the district's obligation)? The FAPE issue, including the high-stakes remedies of tuition reimbursement and compensatory education, accounts for the vast majority of the litigation under IDEA (e.g., Zirkel, 2012). It is also of central significance to various stakeholders in both general and special education--including practitioners, professors, and parents--in addressing the needs of individual children with disabilities in the context of school system resources and responsibilities.

Thus far, the special education community has not been prominent in answering this question. Other voices, including advocacy groups and legal commentators, have dominated the deliberations in Congress and in the courts. Yet, scholars and practitioners in special education have both the advancing knowledge and continuing obligation to address FAPE under IDEA.

Reviewing the successive sources that have addressed the FAPE question to the critical, present time facilitates the informed consideration and active participation of the broad special education community. Since the Supreme Court's landmark decision in Board of Education v. Rowley (1982), the scholarly commentary addressing the FAPE question has been primarily but not exclusively from the legal rather than the special education community. During the same time period, lower courts have interpreted Rowley restrictively rather than expansively. Although Congress, in its 2004 amendments to the IDEA, added a qualified standard of peer-reviewed research (PRR) to the IEP provision for FAPE, recent case law has continued its district-deferential trend, It is apparent that the time is ripe for Congress to determine a heightened substantive or at least procedural standard FAPE, thus at least restoring Rowley or adjusting it in line with the three decades of post-Rowley maturation of the special education field.

THE ROWLEY DECISION

In Rowley (1982), the Supreme Court provided an initial answer to the question of the operational meaning of FAPE. The child in this case, Amy Rowley, was a deaf student in first grade. The proposed IEP included placement in a general education class, the use of an FM hearing aid, 1 hr per day of instruction from a tutor for the deaf, and speech therapy for 3 hr per week. Amy was doing well with these services, but her parents pointed out the notable disparity between her performance and potential due to her disability. To provide her with an opportunity commensurate with her peers, Amy's parents sought the addition of interpreter services for all of Amy's academic subjects.

The Supreme Court focused on the definition of FAPE in what was then the original version of IDEA, finding it to be helpful but not sufficiently specific to reveal Congressional intent. Against the historical backdrop of exclusion of children with disabilities, the majority opinion viewed the various provisions of the Act as emphasizing access via procedures, such as the prescribed parental notices, IEP team members, IEP format specifications, and dispute resolution mechanisms. As a result, the Court used a clarifying metaphor to conclude that the purpose of the legislation was to "open the door" (Rowley, 1982, p. 192) rather than provide a high substantive floor. Thus, the Rowley Court concluded that the measure for FAPE is a two-pronged standard: (a) Did the district comply with the various applicable procedures? and (b) Is the IEP "reasonably calculated to enable the child to receive educational benefits?" (1982, pp. 206-207). The emphasis was on the first, procedural prong. …

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