1. Free and Appropriate Public Education
What does it mean?
Jennifer Monthie, Esq.
Disability Rights New York
Tara Moffett, Esq.
Girvin & Ferlazzo, PC

2. Understanding History
Where does FAPE come From?
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3. The History of FAPE
The Captioned Films Act of 1958 and Professional Personnel Act of 1959 –training to educating children with MR.
The Elementary and Secondary Act (ESEA) of 1965 – Lyndon B. Johnson’s “War on Poverty” created equal access to education (“No Child Left Behind Act of 2001”)
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4. The History of FAPE
1971 Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, 343 Fed. Supp. 279 –state cannot deny, put off or end a student with intellectual disability’s access to public school
Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 –all students regardless of disability were entitled to a free and publicly sanctioned education
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5. Education for All Handicapped Children Act of 1975
Public Law
All students are entitled to a free appropriate public education (FAPE) at public expense.
Special Education and specific services tailored to meet the unique needs of a student with a disability
Right of protection under the law (Equal Protection)
Individualized Plans
Instruction in the Least Restrictive Setting
Evaluation before labeling with a disability
Due Process Protections
Congress funds 40% of excess costs of education
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6. Individuals with Disabilities Education Act 1990
Changes to Public Law
1986 amended to Public Law –requiring services starting from birth
1990 –IDEA –PL
1997 –PL –transition services –appropriate employment opportunities and/or community resources
2004 –High Standards (research validated practices in providing FAPE or risk loss of funds.
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7. Where is FAPE in the Law?
Who Does FAPE apply to?
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8. FAPE in other Federal Statutes
Section 504 of the Rehabilitation Act (504)
US DOE –FAPE to each qualified student with a disability within the school district’s jurisdiction
“the provision of regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met and is based upon adherence to procedures that satisfy the Section 504 requirements pertaining to educational setting, evaluation and placement, and procedural safeguards”
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9. FAPE in other Federal Statutes
Americans with Disabilities Act (ADA)
Title III –prohibits discrimination against students with disabilities in private schools that are considered places of public accommodations
Not FAPE –equal access except is fundamentally alter the program, significant expense.
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10. FAPE
What Does it Mean?
Who is Entitled to it?
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11. What is FAPE?
FAPE was created to ensure that a child with a disability will receive the same education as a child without a disability.
Key Components
Special education and related service to students who need them
Provided at no charge
Tailoring of an Individualized Education Program (IEP)
Education in the Least Restrictive Environment (LRE)
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12. What is not required under FAPE
Provide services superior to the services students without disabilities receive;
Provide a specific program or adjust the school setting just because it’s the student’s preference;
Preferential treatment to students with disabilities (i.e. guarantee a spot in an extracurricular activity).
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13. Who is entitled to FAPE?
The right FAPE extends to all students in the state between the ages of except:
the student has graduated with a high school diploma;
the student is between the age of and incarcerated in an adult correctional facility without a classification or IEP in the last educational placement.
The right to FAPE ends when the student graduates with a regular high school diploma.
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14. Understanding the Term
A Break Down of FAPE
Understanding the Term
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15. Free “Free” – at public expense
All Eligible students with disabilities will be educated at public expense. There is no cost to the child or family.
Applies only to special education & related services (including those services received by students attending private schools at parent expense)
Exception –students/families so have to pay the same incidental fees or costs (such as membership fees for clubs) as for general education students.
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16. Appropriate
Education that is tailored and planned to meet the student’s individualized need as stated in the Individualized Education Program (IEP)
Is designed to meet the unique needs of that one student
Addresses both academic and functional needs
Provides “access to the general curriculum to meet the challenging expectations established for all children” (State grade-level expectations) to the extent appropriate to the student.
Provided in accordance with an IEP
Reasonably calculated to enable the student to receive educational benefit.
Not the best possible education, nor one that will maximize the student’s educational potential –it need only be an education specifically designed to meet the student’s unique needs.
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17. Public
“Public”
Generally refers to the public school system but includes public services delivered to students in private school placed by the parent.
Students with disabilities whatever the nature or severity of their disabilities, have the right to be educated under public supervision.
Meets state standards
Includes private facilities if student placed there by the school district
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18. Education
Must be provided to every eligible school-age student with a disability
The education should prepare the student for the future –further education, employment and independent living
Meet State-Standards set forth for all students (students with or without disabilities).
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19. The Requirement of FAPE
FAPE Decided in the courts
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20. What Does FAPE Require?
IDEA and regulations do not set forth a standard for determining if a particular IEP or special education program is substantively appropriate.
This standard was addressed in a Supreme Court Decision.
Board of Education of Hendrick Hudson Central School District v. Rowley
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21. Board of Education v. Rowley
Amy Rowley –a deaf student limited residual hearing and excellent lip-reading skills
Academic progress exceeded average student
Amy requested a qualified sign language interpreter in all academic classes
IDEA Hearings (no denial of FAPE) –District Court (denied FAPE – defined FAPE as “an opportunity for Amy to achieve her full potential commensurate with the opportunity provided to other children.”
Second Cir. Affirmed
Supreme Court…
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22. What does a FAPE Require?
Question Answered by Supreme Court:
Does IDEA promise a FAPE requiring school districts to afford students with disabilities an education that maximizes their opportunities?
Answer NO
IDEA requires schools to “open the door to public education” to students with disabilities “rather than to guarantee any particular level of education once inside.”
“basic floor of opportunity” requiring schools to provide access to special education and services to permit the student to benefit educationally from that instruction (passing marks and advance from grade-to-grade)
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23. Rowley Test
US Supreme Court: “We hold that the state satisfies the FAPE requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”
Board of Education v. Rowley 458 U.S. 176, (1982) two part test
School District must have “complied with the procedures set for in the Act [IDEA]”
The IEP that is developed must be “reasonably calculated to enable the child to receive educational benefits.”
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24. Rowley Used in NYS
New York: “A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”
R.E. v. New York City Dep't. of Educ., 694 F.3d 167, (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005)
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25. Compliance with Procedural Rights
Procedural Requirements
Examine school records
Participate in meetings
Present complaints
Notice of any proposed changes to the educational program or placement
Independent Educational Evaluation
Due Process Compliant with right to civil action
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26. Procedural Violations of FAPE
Not all procedural violations render the IEP legally inadequate.
A.C. v. Bd. Of Educ. 553 F. 3d 165, 172 (2d Cir. 2009) –Failure of the District to conduct a FBA did not constitute a denial of FAPE.
Only those procedural violations impeding a students right to FAPE will constitute a violation under IDEA.
Must significantly impede the parent’s right to participate in the decision-making process regarding the provisions of FAPE or result in a loss of educational opportunity for the student.
David v. Wappingers Cent. Sch. Dist. 772 F. Supp. 2d 500 (S.D.N.Y. 2010) aff’d, 431 F. App’x. 12 (2d Cir. 2011).
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27. Compliance with Substantive Rights
Substantive Requirements
Individualized IEP
Educational Benefit
Progress toward IEP goals
Least Restrictive Environment - Students with disabilities shall be educated with non-disabled peers to the maximum extent appropriate
20 USC 1412(a)(5)(A); 8 NYCRR 200.1(cc)
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28. FAPE in the Courts Educational Benefit must be more than “trivial”
Polk v. Cent. Susquehanna Intermediate Unit 16, I 853 F. 2d 171, (3d Cir. 1998); Newington Bd. Of Educ. 546 F.3d 111(2d Cir. 2008); Weixel v. Bd. Of Educ. 287 F.3d 138 (2d Cir 2002) (IEP must be likely to produce progress, not regression)
IDEA requires that the educational benefit be “meaningful”.
D.S v. Bayonne Bd. Of Educ. 602 F. 3d 553,556 (3d Cir. 2010) (state must confer “significant learning” and “meaningful benefit”); Deal v. Hamilton Cnty. Bd. Of Educ. 392 F3d 840, 864 (6th Cir. 2004) (Meaningful educational benefit means a goal of self-sufficiency.)
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29. How has FAPE changed in 30 years?
FAPE Today
How has FAPE changed in 30 years?
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30. FAPE and High Standards
Students with disabilities must be prepared for “further education, employment and independent living”
Expected to meet, to the “maximum extent possible” “the challenging expectations that have been established for all children.” 20 USC 1400(c)(5)(A).
IEP include statement of “measurable annual goals” and present levels of “academic and functional performance” no matter the severity of the student’s disabilities
Methodology in the IEP as FAPE. Rowley 458 U.S. 176, 207 (1982) (First instance the responsibility of the school district) 71 Fed. Reg (May be addressed in the IEP).
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31. Questions
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