Updating the FAPE Standard under IDEA

Abstract

The 1982 decision of the United States Supreme Court in Board of Education of Hendrick Hudson Central School District v. Rowley] arguably remains the Court's most important decision under the Individuals with Disabilities Education Act (IDEA) (known until 1990 as the Education of the Handicapped Act or EHA). Between June 27, 1982 and January 24, 2008 the decision was cited with reference to a free appropriate public education (FAPE) 1095 times in federal and state court decisions.2 The Court's interpretation of the meaning of FAPE has remained dominant in spite of relevant changes to IDEA in 1997 and 2004. Its ruling about the role of the procedural safeguards in the statute has also remained important but is not the subject of this article. This article will re-examine the Rowley interpretation of FAPE in light of substantive changes to the underlying statute since Rowley was decided. It will argue that those changes have modified the meaning of FAPE and that court decisions should reflect those changes more uniformly, with or without an updated decision by the Supreme Court. I. A QUICK REVIEW OF THE ROWLEY DECISION Amy Rowley was a child who was deaf from birth and whose parents sought a sign-language interpreter to aid her in her first-grade classroom. The primary issue in the Supreme Court case was whether the interpreter was needed to provide Amy with FAPE. In its first case under the thenEHA, the Supreme Court interpreted statutory FAPE language to mean that appropriate public education required meaningful access to publicly financed special education, which, in turn, required personalized instruction delivered in conformity with an individualized education program (IEP) designed to meet the child's educational needs. The Court's holding specified that, if the statute's procedural safeguards had been complied with, a court's role was simply to ascertain whether the student's IEP was calculated to enable the child to receive educational benefits.3 The Court concluded that Amy was receiving FAPE without a sign language interpreter because, among other things, she was well adjusted and performing well academically in her first-grade classroom. The Court's decision did not list Amy's IEP goals or assess whether she was progressing toward those goals. Rather, the Court emphasized the fact that Amy was receiving special education services (instruction from a teacher for the deaf along with speech therapy) and professional consideration from her teachers, and she was easily achieving above average grades in her first-grade classroom. Nothing in the Court's decision indicates that the justices attempted to ascertain Amy was performing with respect to her IEP goals. As Raymond Kuntz, the attorney for the school district, mentioned in a keynote presentation to the Education Law Association in 2006,4 the Court, during oral argument, seemed concerned with procedural regularity and how Amy was doing overall in her general education classroom. Although the Court judged the appropriateness of Amy's special education after implementation of her IEP, the Court's educational benefit standard appeared to be prospective rather than retrospective in nature; that is, it appeared to ask for a determination of whether the IEP, at the time of its development, was reasonably calculated to deliver FAPE. After the precedent of Rowley, lower courts struggled with determinations of much educational benefit would be enough to meet the new standard. Each case had to be considered individually. Lower court standards varied, but over time, most courts looked at the student's IEP and decided that trivial progress toward IEP goals was insufficient and that progress should be meaningful, satisfactory, or adequate.5 The actual language varied by circuit. Determining whether the judicially required extent of progress had been met was quite subjective in many respects. One of the best known decisions used an automobile analogy and concluded that FAPE required a serviceable Chevrolet, not a Cadillac. …

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 13 citations exist upstream.