What is a FAPE, and how do I know if my child got one? [*Updated per Endrew F. case]
Under both State law and the federal Individuals with Disabilities Education Act (IDEA), students with disabilities have the right to a free appropriate public education (FAPE). The term "free appropriate public education" means special education and related services that are available to the student at no charge to the parent or guardian, and that meet the State educational standards. When a school district offers parents an educational program in an annual IEP, there is often a section called "Offer of FAPE". The offer of FAPE thus refers to the package of placement and services the school is offering to a Student in order to satisfy its duties under the IDEA. For example, a school's offer of FAPE in an IEP would include the type of class, how many minutes of special ed instruction, how many minutes of speech or RSP, or any other services, as well as what accommodations are being offered (i.e., seating near the front, ability to turn in work late, ability to get extra time on tests, etc.).
This may seem like a fairly vague standard. To find out what exactly is a FAPE, and when is it denied, one must review court decisions to see how the standard is applied.
Situations where there has been a denial of a FAPE, such that a parent can win at Due Process fall into two main categories, procedural and substantive.
A procedural violation of the IDEA (i.e., a violation of any provision of the IDEA by District) can constitute a denial of FAPE where the violation significantly impeded the parents’ opportunity to participate in the IEP formulation process, or where the procedural violation results in the loss of an “educational opportunity”. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir. 2009).
In other words, just because the school district violated a provision of the IDEA does NOT mean you automatically win your case at Due Process. There has to be harm, and you have to prove it with evidence.
The second category of a denial of FAPE is the “substantive violation”. This one is also tricky. To define it one has to look at case law, and case law varies by where you live, and is constantly evolving.
Here in California, we are in the 9th Circuit. In the 9th Circuit, courts have said that a school is providing a FAPE where the school has created an IEP is designed to provide student with a “meaningful benefit”. This was the law until March 2017, when the U.S. Supreme Court provided a new standard in the case of Endrew F. v. Douglas County School District.
DON'T FALL FOR ARGUMENTS BY SCHOOL DISTRICT LAWYERS THAT THE ENDREW F. DOES NOT APPLY TO CALIFORNIA OR THE 9TH CIRCUIT
Some school district attorneys are no doubt going to argue that this new higher standard in Endrew F. does not apply to California because the Endrew F. case was a case from another jurisdiction, the 10th Circuit. Don't fall for such logic. I have already read such an interpretation in a blog put out by the attorneys representing Long Beach Unified School District. Without going into boring legal detail, suffice it to say that the U.S. Supreme Court's rulings apply to the whole U.S., and trump any lower court rulings, including those of the 9th Circuit which conflict with it. More simply put, the Supreme Court is the boss, and all the circuit courts must follow it, even those in California.
THE OLD STANDARD
Before this new case, Endrew F., the standard that a court would apply when determining whether a school district denied a student a FAPE, was whether at the time it was drafted that it was appropriately designed and implemented so as to provide the particular student with a meaningful benefit.
THE NEW STANDARD
For a child who is in general education classes, the new standard whether the child's IEP was reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. In other words, did the school district design an IEP for your child that had sufficient services, supports and accommodations to enable your child to pass his classes and move up a grade.
For a child in a special day class or other setting which is not the gen ed classroom, the standard is different. For those students, a school district offers a FAPE if the IEP is reasonably calculated to enable the child to make progress appropriate in light of the child's circumstances.
Want to read the Endrew F. case yourself? You can find it here: https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf
*This post has been updated to reflect a recent U.S. Supreme Court decision