Free Appropriate Public Education

In the law, common words often take on challenging and unique meanings. The Individuals with Disabilities Education Act ("IDEA") requires school districts to provide all eligible students with a free appropriate public education ("FAPE"). The Act's definition of "FAPE" provides a good starting point in understanding the educational benefits that children with disabilities are entitled to under federal law. The statute defines a "free appropriate public education" as:

[S]pecial education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [this Act].

20 U.S.C. § 1401(8).

Breaking down the definition into its component parts, it becomes more easily understood. Special education is further defined as "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability." 20 U.S.C. § 1401. Related services are services needed by a disabled child to benefit from special education (such as speech, occupational therapy, physical therapy, counseling services, mobility services, transportation, and limited medical services). 20 U.S.C. § 1401(22). The individualized education program ("IEP") is the written plan of specific special education and related services designed to meet the unique educational needs of a child with a disability. 20 U.S.C. § 1414(d). The IEP is "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." School Committee of Burlington, MA. v. Department of Education, 471 U.S. 359, 368 (1985).

While portions of the statutory definition may be clear, the statute does not define "appropriate" and courts have struggled to provide a workable standard by which a child's education can be determined to be "appropriate." The United States Supreme Court, in Hendrick Hudson Board of Education v. Rowley, 458 U.S. 176 (1982), established a two-tier inquiry into the issue of "appropriateness." The Court established both a procedural and a substantive test asking the following questions to evaluate compliance with IDEA: first, has the State complied with the procedures set forth in the Act; and second, is the IEP, as developed through the Act's procedures, reasonably calculated to enable the child to receive educational benefits?

The First Step: Procedural Compliance

In recognition of a school district's obligation to disabled children, Congress established extensive procedural criteria designed to guarantee that parents were full and equal participants in the development of their child's education. First, school districts must show that they have sought out and identified all students in their district having a disability who qualify for special education services under one of ten categories of disabilities recognized by the Act. Districts must then conduct a multifactored evaluation for each identified child in any area of suspected disability and must convene an IEP meeting, which includes, at a minimum: the parent or guardian of the child, a special education teacher, a regular education teacher if the child is involved in the regular education curriculum, a district representative qualified to interpret the results of evaluations and testing, and the child, if appropriate. Often, due to the nature of the child's disability and the services to be provided for him or her, additional personnel will be in attendance, such as a speech pathologist or occupational therapist. Additionally, the district must ensure that parents have an opportunity for "meaningful" participation in the drafting of an IEP. Finally, the IEP team must then make a placement decision about where the child's needed services will be delivered. These services must be provided in the least restrictive environment on the continuum of available programs. 34 C.F.R. Reg. 300.530-534. Compliance with these procedural steps will satisfy the first tier of the Rowley inquiry.

The Sixth Circuit Court of Appeals, which interprets federal law for cases originating in the State of Ohio, has stated that:

In determining whether the state has complied with the Act's procedures, a court must not only 'satisfy itself that the State has adopted the state plan, policies, and assurances required by the Act, but also to determine [sic] that the State has created an IEP for the child in question which conforms to the requirements of [IDEA].' An essential element of a FAPE is an appropriate IEP.

Doe v. Defendant I, 898 F.2d 1186, 1189 (6th Cir. 1990) citing Rowley, 458 U.S. at 206-07, n. 27.

The Second Step: Substantive Compliance

If the school district has completed the required procedural safeguards in developing the IEP, the courts must next determine whether the IEP developed pursuant to these procedures is reasonably calculated to permit the student to receive educational benefit. Rowley. There has been some disagreement among the courts on exactly what "educational benefit" entails, but, pursuant to Rowley, the federal courts have determined that states are not required to develop programs to maximize a disabled student's potential. Timothy W. v. Rochester, 875 F.2d 854 (1st Cir. 1989), cert. denied, 110 S.Ct. 519 (1989).

The Rowley court concluded:

Insofar as a State is required to provide a handicapped child with a 'free appropriate public education,' we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standard, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act, and, if the child is being educated in the regular education classrooms of the public school system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

Rowley, at 203-04. From this case, we can see that kids with disabilities that are able to be educated in the regular classroom should be able to pass their classes and move into the next grade. But what about children who are unable to be fully included in the regular classroom? In order to comply with the requirements of IDEA and the standard set forth in Rowley that educational benefit should be "meaningful," courts attempted to define a standard by which to measure a "meaningful" educational benefit. The doctrine that emerged from many circuit courts was the "more than trivial" standard.

In determining if a school district has met the "more than trivial" test, courts have said that IDEA "requires a plan likely to produce progress, not regression or trivial educational advancement" and "the question of whether benefit is [trivial] must be gauged in relation to the child's potential." Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988). This minimal educational requirement must be viewed on a case by case basis as the disability of each child poses unique challenges. Some children, due to the extent of their handicaps, will never be able to perform at grade level and will require several years to achieve what would be to a non-handicapped child a year's worth of progress. Conklin v. Ann Arundel County Bd. Of Ed., 946 F.2d 306, 316 (4th Cir. 1991). Rowley recognized that a FAPE must be tailored to the unique needs of the individual child's capabilities and that while one might demand only minimal results in the case of the most severely handicapped children, such results would be insufficient in the case of other children. Clearly, Congress did not intend that a school system could discharge its duty under the [IDEA] by providing a program that produced some minimal academic advancement, no matter how trivial."

Hall v. Vance County Bd. of Educ., 774 F.2d 629 (4th Cir. 1985). Additionally, Congress has stated its intent that, "The term 'unique educational needs' be broadly construed to include the handicapped child's academic, social, health, emotional, communicative, physical and vocational needs." H.R. Rep. No. 410, 98th cong., 1st Sess. 19 (1983), reprinted in 1983 U.S. Code Cong., & Admin. News 2088, 2106.

The courts governing application of federal law in the State of Ohio have embraced the "more than trivial" standard advocated in Hall and Polk. In Doe v. Smith, 879 F.2d 1340 (6th Cir. 1989), the Sixth Circuit Court stated that "in order to be 'appropriate,' the educational benefits provided by the states must be more than [trivial]." "The standard is satisfied 'by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.'" 879 F.2d at 1341, citing Rowley, 458 U.S. at 203.

In summary, the Supreme Court's interpretation of IDEA's intent was two-fold: first, there should be equal access to the schools for the handicapped students and second, through personalized programming and supportive services, the handicapped student would experience education progress. What does this all mean in interpreting the adequacy of a child's IEP? Initially, it is difficult for many parents and advocates to understand that a district is not required to provide the best program available for a disabled child. Instead, the district must provide a program that (1) satisfies the procedural requirements of IDEA, (2) addresses the child's unique needs as identified by evaluations and observations, (3) is coordinated to the child's potential, and (4) allows the child to make educational progress according to the child's goals and objectives.