U.S. Supreme Court Grapples With Meaning of Free and Appropriate Public Education (FAPE) in Special Education
By Scott F. Johnson
The recent oral arguments in Endrew F. v. Douglas County Schools, Case No 15-827, before the United States Supreme Court, highlight some of the issues that the Court will grapple with in deciding the meaning of an all-important term in special education. The term in question is a Free and Appropriate Public Education (referred to as “FAPE”). FAPE is part of the requirements of a federal law called the Individuals with Disabilities Education Act (IDEA). The term is the foundation of just about every decision that is made for students with disabilities because, in the end, those decisions need to result in providing students with FAPE.
Current Meaning of FAPE Based on Old Access Requirements
Back in 1982, the Supreme Court had the opportunity to review the meaning of FAPE in a case called Hendrick Hudson School District v. Rowley, 458 U.S. 176, 177 (1982). In that case, the Court determined that the purpose of the IDEA was to give students with disabilities access to public education, not so much to address the quality of education they received once they had access. Remember that before the IDEA was enacted in the mid-1970s, it was commonplace for students with disabilities to be completely excluded from public school, or for their parents to be required to pay for whatever services the student needed to be able to attend public school. Using this background as a reference point for the enactment of the law, the Court said that FAPE did not require schools to provide services that would maximize a student’s potential. Rather, it only required services that provided them with “some educational benefit.”
Many lower courts have interpreted Rowley’s some-educational-benefit standard to have fairly minimalistic requirements that focused on
- any amount of benefit (as opposed to substantial or significant benefit),
- passing grades (as opposed to average, good, or high grades), and
- advancing from grade to grade.
Under this approach, disputes often arise over how much benefit is enough, with parents claiming that more or different services would produce better results and schools defending what they have provided as good enough to meet their legal requirements, even if it does not allow the student to make the progress the student could make with better or different services. Courts coined this situation the “Cadillac versus Chevrolet” argument, with students with disabilities only being entitled to Chevrolets and not Cadillacs under the IDEA.
Changes to the IDEA Focus on Providing Quality Services to Students with Disabilities
The premise for the some benefit standard has been outdated for some time now. Congress has enacted a variety of amendments to the IDEA since 1982 that changed the focus of the law. In Endrew F., the Supreme Court finally gets a chance to update the meaning of FAPE based on these changes. While a detailed accounting of the changes is beyond the scope of this article, it is fair to say that the common theme of many of the changes is raising expectations for students with disabilities and focusing on proven methods of instruction. Unlike the IDEA that existed at the time of the Rowley decision, the IDEA of today is not focused on access to services. It is focused on the quality of services that students receive now that they have access. The standard for FAPE needs to be updated to take these changes into account. The changes to the IDEA require services to be based on high expectations and high quality instruction in order to improve student performance and student achievement. FAPE is the measurement of whether or not that is accomplished.
The Meaningful Benefit Standard is More in Line with the Changes to the IDEA
Some lower courts have made efforts to update FAPE and have used a “meaningful benefit” standard, which requires significant or substantial benefit and looks at other factors related to the quality of services provided. This approach seems to be more in line with Congressional intent given the changes to the IDEA over the years. While some say that there is no real difference between the “some benefit” and “meaningful benefit” standards, that all depends on what factors courts use under these standards to assess the services offered or provided to the student. Reports of the Supreme Court oral argument noted that the Justices are astutely aware that the adjective or label that is used is not what is important. Rather, it is how the terms are interpreted and what factors are used to make up the standard for FAPE that matters.
The difference in the factors used between the some benefit and meaningful benefit standards made a huge difference in the outcome of a Ninth Circuit case, J.L. v. Mercer Island School District, 592 F.3d 938 (9th Cir. 2010). The lower court in the case used a meaningful benefit type of standard and found that the school had not provided the student with FAPE because
- the student’s Individualized Educational Plan (IEP) goals were not met;
- the student made some progress, but not substantial progress;
- the focus of the services provided to the student was on providing accommodations that relieved the student from performing many academic tasks rather than instruction that would allow the student to learn how to perform the tasks; and
- when the parents removed the student from the public school and placed the student in a private special education school, the student made significant progress.
On appeal, the Ninth Circuit Court of Appeals reversed, stating that the court used the wrong legal standard for FAPE and remanded the matter back to the court. On remand, the court used the “some benefit” standard and found that the school had provided FAPE despite all the deficiencies previously noted because the services were good enough to result in “some progress” and passing grades, albeit modified ones.
FAPE Needs an Update
Cases like J.L. v. Mercer Island School and Endrew F. give us the chance to address a number of important questions about special education and FAPE going forward, such as:
- Is the goal of special education to escort students through the educational system by providing them with accommodations that relieve them of some or all of the academic requirements that regular education students must meet, or is the goal to provide instruction that enables the student to develop the skills they need to meet the same or similar requirements?
- Should the focus of FAPE be on passing grades, or should the focus be on trying to determine student progress in relation to the child’s potential based on the child’s abilities as reflected in IEP goals and objectives? If grades are part of the equation, should the focus on grades be the same when those grades are achieved through modifications or accommodations?
- How should we measure progress and determine how much progress is enough progress for a student?
- Should the progress that a student makes in a private program funded by the parent be considered when assessing whether the public school provided FAPE on the theory that it shows what the student is capable of achieving? It is currently not generally considered under the “some benefit” standard, because the fact that a student may have made more progress in another program is irrelevant if the program proposed by the school produced, or would produce, some progress.
The specific answer to these questions may vary depending on the nature of the student’s disability, the student’s abilities, and the circumstances, but the changes to the IDEA over the years require us to think about these issues and take a different look at FAPE. These changes show a clear Congressional intent to improve student performance for students with disabilities and to do so by having them meet the same requirements and high expectations that are set for students without disabilities to the maximum extent possible. Part of that effort should come from standards that states use to determine what students should know and be able to do at various points and grade levels. These standards are often referred to as content and proficiency standards, or as achievement standards. They are tied to the state’s testing programs and are also often used to make up the general curriculum that is used for all students. The IDEA now expressly requires students with disabilities to have access to and to progress in the general curriculum.
Given the requirements in IDEA today, I propose that the substantive aspect of FAPE that the Court is addressing in Endrew F. include the following:
- IEP goals and objectives that are aligned with state content and proficiency standards, contain high expectations for student learning and achievement, and are appropriate for the student based on the student’s unique needs, potential, and abilities.
- Special education services and related services that are based on best practices and scientifically based instruction and enable the student to meet the goals and objectives.
- Significant progress towards meeting IEP goals and objectives as measured by individual student testing and other objective methods of determining student progress while taking into account the student’s unique needs, potential and abilities and reasons for any lack of progress.
- Student grades to be used as a measurement of progress only when dealing with a student who is “mainstreamed” in regular education classes and the weight given to grades as a measurement of progress be based on a sliding scale based on three factors: 1) if the grades are from a course that is part of the “general education curriculum” and uses the same standards that are used for regular education students; 2) if the student’s assignments are the same as students without disabilities; and 3) if the student completed the required work in the course on their own without accommodations that relieved them of performing tasks that regular education students have to perform to complete the work. The more factors that are met, the more weight the grades receive. If none of the factors are met, the grades receive little or no weight in determining progress.
- Other factors that help determine the student’s potential and ability should be considered when assessing progress if they exist such as the progress the student made in a private program, private school, or from services received outside of school.
Using these kinds of criteria will help ensure that the changes that have been made to the IDEA over the years become part of the requirements for FAPE. They will also help courts and hearing officers make better determinations about whether or not FAPE was provided to specific students.
Scott F. Johnson is a Professor of Law at Concord Law School at Kaplan University, where he teaches Education Law and Special Education Law, among other topics. He has written a number of books and articles in the education law area, including articles regarding FAPE entitled Rowley Forever More? A Call for Clarity and Change, 41 Journal of Law & Education 25 (2012), which was cited by the parties in Endrew F. in briefs to the Supreme Court, and Reexamining Rowley: A New Focus in Special Education Law, 2003 B.Y.U. Educ. & L.J. 561, 580-584. Professor Johnson’s law practice included education and special education cases and he currently serves as a special education hearing officer for a state agency. The views expressed in this article are solely those of the author and do not represent the view of Concord Law School.