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At Last, "FAPE" Defined- Or Maybe Not
March 24, 2017

Under the Individuals with Disabilities Education Act (the “IDEA”), school districts are obligated to provide special education students with a “free and appropriate public education” – also known as “FAPE” – but just what constitutes FAPE?

It has been thirty-five years since the Supreme Court first addressed, in Rowley v. Board of Education, how courts should determine if a school district has provided FAPE to a student with disabilities. Under Rowley, courts were to see (1) whether the school district complied with the IDEA’s procedural requirements, and (2) whether “the [IEP] developed through the Act’s procures [was] reasonably calculated to enable the child to receive educational benefits.”

On Tuesday, the Supreme Court re-visited the issue of FAPE and rendered a decision that changes the standard by which courts will measure to determine if a school district has provided its students with disabilities with FAPE. This decision, long awaited by educational and student advocates alike, will have deep and substantial impact on how IEPs are drafted and implemented.

In Endrew F. v. Douglas County School District RE-1, the Supreme Court disagreed with a prior decision by the Tenth Circuit Court of Appeals, which found that a school district met its FAPE obligations under Rowley if it simply provided a special education student with an educational benefit that was “more than de minimis.” In other words, under the prior decision, a student’s IEP could be found sufficient to provide FAPE as long as the IEP was designed to allow the student to make some minor – but more than merely minimal -- degree of educational progress.

The Supreme Court, however, has now ruled that school districts must offer IEPs that are “reasonably calculated to enable a child to make progress appropriate in the light of the child’s circumstances” – and that children’s’ educational goals must be “appropriately ambitious” given their specific and unique circumstance. For example, IEPs that simply repeat the same goals from year to year, without a demonstrable degree of student progress, will be unlikely to withstand judicial scrutiny.

School districts now face a higher standard than ever before in responding to parental challenges to an IEP. Districts can no longer comfortably rely on an argument that the IEP provides more than a minimal meaningful educational benefit to a student, but must be prepared to “offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

In an ever-increasing litigious society, school districts would be well-advised to examine their IEP practices, both procedurally and substantively. Even districts with nearly unimpeachable IEP practices can likely expect an uptick in requests for due process, in light of the new FAPE standard. School districts are therefore advised to contact their board attorneys to discuss this complex and multi-faceted issue, the legal parameters of which are still not fully defined and are evolving.

For more information, please contact Parker McCay's school law attorneys.

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