Free Appropriate Public Education

Free Appropriate Public Education (FAPE) is an educational right of children with disabilities in the United States that is guaranteed by the Rehabilitation Act of 1973[1] and the Individuals with Disabilities Education Act (IDEA). Under Section 504, FAPE is defined as “the provision of regular or special education and related aids and services that are designed to meet individual needs of handicapped persons as well as the needs of non-handicapped persons are met and based on adherence to procedural safeguards outlined in the law.” Under the IDEA, FAPE is defined as an educational program that is individualized to a specific child, designed to meet that child's unique needs, provides access to the general curriculum, meets the grade-level standards established by the state, and from which the child receives educational benefit.[2] The United States Department of Education issues regulations that define[3] and govern[4] the provision of FAPE.

To provide FAPE to a child with a disability, schools must provide students with an education, including specialized instruction and related services, that prepares the child for further education, employment, and independent living.[5]

Origins of a Free Appropriate Public Education

The 1958 The Captioned Films Act, Public Law 85-905[6] and the Professional Personnel Act of 1959, Public Law 86-158,[7] increased the types and amount of training individuals received in learning how to educate children with mental retardation. The Elementary and Secondary Education Act, PL 92-424,[7] and State School’s Act, PL 89- 313,[7] were both passed by Congress in 1965 which gave states grant assistance for educating children with disabilities.

In the 1971 court case Pennsylvania Association for Retarded Children (PARC), 343 Fed. Supp. 279, v. Commonwealth of Pennsylvania the court decided that a state could not deny, put off, or end any intellectually disabled student's access to a public education.[8] The decision was reached after the Commonwealth of Pennsylvania was sued by The Pennsylvania Board of Education, thirteen school districts, and the state’s secretaries of education and public welfare. The ruling determined that education should be viewed as a continuous process, focused not only on academics, but on teaching individuals how to handle their surroundings.

In Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 n a group of students labeled mentally retarded, emotionally disturbed, and hyperactive by DC public schools filed a civil action suit against DC public schools after being denied admission into the public school system without due process, as entitled to them within the Equal Protection Clause of the Fourteenth Amendment.[9] The courts reversed the school’s ruling and declared that all children, regardless of their physical, mental, or emotional disability within the District of Columbia were entitled to a free and publicly sanctioned education.[10]

FAPE as originally outlined in PL 94-142

In 1975 Congress passed Public Law 94-142, also known as the Education for All Handicapped Children Act, which defined and outlined that all public schools should provide all students with a free appropriate public education at public expense, without additional charges to parents or students, and must be under public supervision, as well as appropriate for the child’s needs.[11]

PL 94-142 also included the following points:

• Special education and the specific services tailored to meet the unique needs of students with disabilities.[12]

• The rights of the students and their parents are to be protected by the law, under the Equal Protection Clause of the 14th amendment.

• Schools are not required to find students with disabilities within their settings and refer those students for service eligibility.[11]

• Students with disabilities are required to have an individualized education plan.

• Students with disabilities should receive instruction in a least restrictive environment along with nondisabled peers.

• Student must be assessed before being labeled with a disability.

• If a student is identified as having a disability appropriate services for their disability must be provided by the state.

• Students are entitled to a due process rights of notice and consent.

• Students with disabilities are entitled to a free and appropriate public education.

• Congress would fund up to 40% of excess costs of educating students with disabilities.

Changes over the years

Public Law 94-142 has been amended and reauthorized several times since 1975. In 1986 was amended to Public Law 99-457. One of the amendments required states to provide disability services starting from birth. The 1990 Amendment, Public Law 101-476, renamed PL 94-142 to the Individuals with Disabilities Education Act. The 1997 amendments of Public Law 105-17 focused on providing transitional services for individuals with disabilities exiting from high school and entering into adulthood. The amendments articulate that transitional services should look into connecting the students to appropriate employment opportunities and, or community resources. It also outlined that individualized education plans needed to have short-term goals. The Individuals with Disabilities Education Act was reauthorized in 2004 and underwent several changes.[13] Some of the bigger mandates include special education teachers needed to become Highly Qualified Teachers. In providing free appropriate public education, states also need to create a plan and set targets for students to meet. Failure to do so will result in federal sanctions such as the loss of funds.[14]

Varying implementations of FAPE

Changes within the act have affected the local and federal implementations of FAPE. FAPE is regarded as being met if the child is making educational progress. However, inconsistent Supreme Court rulings regarding FAPE have brought attention to the varying implementations of FAPE across the United States. In the first FAPE or IDEA case to make it to the Supreme Court, Board of Education of the Hendrick Hudson Central School District v. Rowley, the Supreme Court voted against hiring an interpreter for a deaf student. The student and her parents argued that without an interpreter the student was being denied a free appropriate public education. The courts voted that a free appropriate public education should provide access to specialized instruction and if the child is passing on to the next grade within an inclusion classroom then FAPE is being met and the state does not need to “maximize each child’s potential”.[15] The case brought to the surface the question of how far do the parameters of FAPE extend.

Criteria for FAPE today

The "free" public education means educational services must be provided at public expense, under public supervision and direction, and without charge to parents except for fees that are charged for all students.[16] In Board of Education v. Rowley the United States Supreme Court set forth a two-part inquiry for determining whether a school district has satisfied the FAPE requirement.[17] First, the state must have "complied with the procedures set forth in the Act."[18] These procedures enable parents of a disabled child to examine school records, participate in meetings, and present complaints.[19] Parents must also be given notice of any proposals to change the educational placement of a child, and they are entitled to an independent educational evaluation. They can initiate an impartial due process hearing for failure to comply with the Act and bring a subsequent civil action challenging an adverse determination at the hearing.[20] Second, the IEP that is developed must be "reasonably calculated to enable the child to receive educational benefits."[21] Therefore, if the child is being educated in the general education classrooms of the public education system the IEP must be designed to enable the child to achieve passing marks and advance from grade to grade.[22]

Definition of an appropriate education

Some of the criteria specified in various sections of the IDEA statute includes requirements that schools provide each (disabled) student an education that:

The free appropriate public education proffered in an IEP need not be the best possible one, nor one that will maximize the child's educational potential; rather, it need only be an education that is specifically designed to meet the child's unique needs, supported by services that will permit him to benefit from the instruction. The IDEA guarantees only a basic floor of opportunity, consisting of specialized instruction and related services which are individually designed to provide educational benefit.[23] Thus, Rowley says, the IDEA "cannot be read as imposing any particular substantive educational standard upon the States."

Definition of educational benefit

Since the statute is silent as to what constitutes educational benefit, the standard is defined federal regulations and by ongoing case law. Most courts to address the issue have found that in order to show a FAPE is being provided, the child must make some educational progress. A number of courts have struggled with the question of how much progress is sufficient, yet the standards are still somewhat vague.

In Board of Education v. Rowley, the U.S. Supreme Court ruled that IDEA does not require states to develop IEPs that "maximize the potential of handicapped children."[24] Another important ruling established by a case called Walczak v. Florida Union Free School District in 1998 asserts that children are not entitled to the best education that money can buy; they are only entitled to an appropriate education. Some courts have required that the progress the child receives be meaningful or more than de minimis.

Legal basis and relevant statutes

Three existing federal statutes address the rights of children with disabilities to receive a free and appropriate public education (FAPE): Section 504 of the 1973 Rehabilitation Act, Individuals with Disabilities Education Act (IDEA), and Americans with Disabilities Act (ADA). FAPE is a civil right rooted in the Fourteenth Amendment of the United States Constitution which includes Equal Protection and Due Process clauses.

IDEA 2004 excerpts

Public Law 94-142 (IDEA) defines FAPE as special educational and related services at public expense (i.e. without charge), meeting the standards of approximate grade levels of the State education agency within the context of an individualized education program written with parental participation; and due process, including access to judicial review to determine that the State has complied with the Act and that the written individualized educational program is "reasonably calculated to enable the child to receive educational benefits," e.g. achieving passing marks and grade advancement.

Americans with Disabilities Act (ADA) excerpts

Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by state and local governmental entities, including public school districts. Under Title III the ADA also prohibits discrimination against students with disabilities in private schools that are considered public accommodations.

While private schools are not required to provide a free or appropriate education to students with disabilities (and by definition a private school cannot provide a public education), under the ADA they must take reasonable steps to ensure that students with disabilities have equal access to the private school's educational program. Many times this means changes to school rules, such as allowing a medically fragile child to carry a cell phone, permitting the use of tape recorders or laptop computers in class, or allowing a student with a movement disability extra time to walk between classrooms. A school might also provide auxiliary aids and services such as computer-aided transcription services, assistive listening devices for auditorium-based lectures, closed captioned decoders, open and closed captioning, TDDs, and videotext displays. A private school is not required to provide an auxiliary aid or service if the school can show that providing the service would fundamentally alter the program or require significant difficulty or expense, and under some circumstances they may charge extra for additional services. For example, if a school offers after-school tutoring to all students for an additional fee, they may charge the same fees to a disabled student who wants after-school tutoring.

Section 504 of the Rehabilitation Act of 1973

The Rehabilitation Act of 1973 established non-discrimination requirements for federal agencies and for State and local programs receiving federal assistance. The Act does not directly bar discrimination by individuals (as does the Americans with Disability Act, ADA), but rather operates indirectly and bars discrimination by the state and local recipients of federal assistance. Section 504 states that no otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." As a result of section 504, state public education programs began to be subject to federal non-discrimination requirements. Section 504 only requires that the school develop a plan for the child (unlike an IEP, which is a legally binding contact).

See also

References

  1. ↑ "Free Appropriate Public Education under Section 504". Ed.gov. 2007-09-01. Retrieved 2010-09-11.
  2. ↑ 2.0 2.1 2.2 "20 U.S.C. §1401(9)". Cornell Law School. Retrieved 2008-07-21.
  3. ↑ "Section". Edocket.access.gpo.gov. 2002-07-01. Retrieved 2010-09-11.
  4. ↑ "2002 CFR Title 34, Volume 2". Access.gpo.gov. Retrieved 2010-09-11.
  5. ↑ "20 U.S.C. §1400(c)(5)(A)(i)". Cornell Law School. Retrieved 2008-07-21.
  6. ↑ "Public Law 85-905". Described and Captioned Media Program. Retrieved 23 October 2011.
  7. ↑ 7.0 7.1 7.2 "Archived: A 25 Year History of the IDEA". Archived Information. ED.gov. Retrieved 21 October 2011.
  8. ↑ Abeson, Alan. "The Educational Rights of Exceptional Children". Public Policy and the Education of Exceptional Children. The Council for Exceptional Children. Retrieved 26 October 2011.
  9. ↑ Kloo, Amanda; Volonino, Victoria; Zigmond, Naomi (Oct-Dec 2009). “What, Where and How? Special Education in the Climate of Full Inclusion”. Exceptionality 17 (4): 189-204
  10. ↑ Mclaughlin, Margaret J. (Spring 2010). "Evolving Interpretations of Educational Equity and Students with Disabilities". Exceptional Children. 1 76 (3): 265–278. Retrieved 19 October 2011.
  11. ↑ 11.0 11.1 Etscheidt, Susan (Summer 2007). "The Excusal Provision of the IDEA 2004: Streamlining Procedural Compliance or Prejudicing Rights of Students With Disabilities?". Preventing School Failure 51 (4): 13–18. Retrieved 18 October 2011.
  12. ↑ "Principles of IDEA". Learning Disabilities of America. Retrieved 22 October 2011.
  13. ↑ "IDEA 2004 Summary". FAPE- Helping Parents and Advocates Improve Educational Results for Children with Disabilities. Retrieved 17 October 2011.
  14. ↑ Smith, Tom E. (November–December 2005). "IDEA 2004: Another Round in the Reauthorization Process". Remedial & Special Education 26 (6): 314–319. Retrieved 14 October 2011.
  15. ↑ "Bd. Ed. Hendrick Hudson Sch. Dist. v. Amy Rowley (458 U. S. 176)". Retrieved 17 October 2011.
  16. ↑ "34 CFR 300.13". Edocket.access.gpo.gov. 2002-07-01. Retrieved 2010-09-11.
  17. ↑ "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. Retrieved 2010-09-11.
  18. ↑ Rowley, 458 U.S. at 206.
  19. ↑ See 20 U.S.C. § 1415(b).
  20. ↑ See 20 U.S.C. § 1415(f)-(i).
  21. ↑ Rowley, 458 U.S. at 206-07.
  22. ↑ P. ex rel. Mr. P. v. Newington Bd. of Educ. 512 F.Supp.2d 89 (D.Conn.,2007).
  23. ↑ Adam J. ex rel. Robert J. v. Keller Independent School Dist, 328 F.3d 804 (5th Cir 2003).
  24. ↑ "Bd. of Educ. v. Rowley, 458 U. S. at 189". Caselaw.lp.findlaw.com. Retrieved 2010-09-11.

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