According to the law…
There are two parts to the legal analysis of whether a school district has offered a student with a disability a free appropriate education (“FAPE”). The first question is whether the LEA has complied with the procedures set forth in the Individuals with Disabilities Education Act (“IDEA”). Board of Education of the Hendrick Hudson Central School District v. Rowley, (1982) 458 U.S. 176, 206-207. The second question is whether the IEP developed through those procedures was substantively appropriate. Id. p. 207.
Procedural flaws do not automatically require a finding of a denial of FAPE. A procedural violation does not constitute a denial of FAPE unless the procedural inadequacy (a) impeded the child’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE; or (c) caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); Education Code §56505, subd. (F)(2)(A)-(C); W.G.v. Board of Trustees of Target Range School District No. 23, (9th Cir. 1992) 960 F. 2d. 1479, 1483-1484.
Despite the emphasis which the U.S. Supreme Court in Rowley placed on school district compliance with the procedural requirements of the IDEA, and the passage of time which has taken place since that decision was rendered, procedural violations of the IDEA are nevertheless common. Whether or not a procedural violation has resulted in the denial of a FAPE to a disabled child rests primarily upon whether that procedural violation was significant in terms of denying the child educational opportunity or his or her parents the right to meaningful participation in the IEP process.
In Rowley, the Supreme Court also addressed the level of instruction and services that must be provided to a student with disabilities to satisfy the requirements of the IDEA. Under Rowley, and state and federal statutes, the standard for determining whether a district’s provision of services substantively and procedurally provided a FAPE involves four factors: (1) the service must be designed to meet the student’s unique needs; (2) the services must be reasonably designed to provide some educational benefit; (3) the services must conform to the IEP as written; and (4) the program offered must be designed to provide the student with the foregoing in the least restrictive environment. While this requires a school district to provide a disabled child with meaningful access to education, it does not mean that the school district is required to guarantee successful results. (20 U.S.C. §1412(a)(5)(A); Education Code §56301, Rowley, supra, p. 200).
In Rowley, the Supreme Court held that the IDEA does not require school districts to provide special education students the best education available or to provide instruction or services that maximize the student’s abilities, and parents often hear this from school district personnel. Rowley, supra, p. 198. School districts are required to provide a “basic floor of opportunity” that consists of access to specialized instruction and related services individually designed to provide educational benefit to the student. Rowley, supra, p. 198.
As indicated, school districts contend that the provision of fairly minimal benefit is sufficient to satisfy the substantive requirements for the provision of a free appropriate public education. However, in the Ninth Circuit, which encompasses California and most of the western United States, it is clear that the educational program provided to a disabled child must be reasonably calculated to confer “meaningful educational benefit.” Adams v. State of Oregon, 195 F. 3d. 1141, 1149 (9th Cir. 1999); J.L. v. Mercer Islands School District, 575 F. 3d. 1025, 1038 Fn. 10 (9th Cir. 2009).
Although school districts often claim that they are only responsible for addressing academic issues, and thus any evidence of academic progress proves that a disabled child has been receiving a FAPE, their obligation actually extends much further to encompass “social, behavioral, and emotional needs.” (“The term ‘unique educational needs’ [shall] be broadly construed to include the handicapped child’s academic, social, health, emotional, communicative, physical and vocational needs”). H.R. Rep. #410, 1983 U.S.C. Can 2088, 2106. Furthermore, what constitutes a free appropriate public education for a disabled child must be determined in the context of his or her potential. Mrs. B. v. Milford Board of Education 103 F. 3d. 238, 247 (3rd Cir. 1999).
While largely unspoken, disputes between parents and school districts are often grounded in conflicting views about what a disabled child is capable of. A child’s potential to make progress across all areas of development goes to the very heart of the question of whether a district is addressing a child’s “unique needs”. After being unable to appropriately serve a disabled child it is quite common for a school district to take the position that the child’s impairment is such that it is not realistic to expect the degree of progress which the parents might envision. This points out the critical need, discussed elsewhere, for parents to obtain appropriate independent assessments of their child’s needs.
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