Maximizing FAPE
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Maximizing a Free and Appropriate Public Education for all Special Needs Students
Brian Godfrey
University of Vermont
EDLP 353
February 9, 2016
DR. Richard Johnson
Maximizing FAPE
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Introduction
The United States has had a long history focusing on the importance of education. As
suggested by one of the founding fathers, Thomas Jefferson, “some degree of education is
necessary to prepare citizens to participate effectively and intelligently in our open political
system.” (Hannon, 2007) While the importance of education as always been acknowledged, the
opportunity to get a proper education has not always been equitable. Long after Brown vs.
Board of education decision to desegregate schools, special needs students have continued to
battle for their right for an equal opportunity to be educated.
This paper will discuss some of the early legislation giving disabled students the right to
be in school. Including the Education for All Handicapped Children Act of 1975 (EAHCA),
which later became the Individuals with Disabilities Education Act (IDEA), which governs how
states and public agencies provide early intervention, Special Education and related services to
children with disabilities. Furthermore a prominent Supreme Court case, Board of Education of
the Hendrick Hudson Central School District v. Rowley, will be discussed, and how its ruling on
Free and Appropriate Public Education (FAPE) has influenced the inclusion of special needs
students. Important issues regarding Least Restrictive Environment (LRE), cost of Special
education, and why inclusion is so important will be discussed in detail throughout this paper.
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IDEA: The Rights to an Education
Brown v. Board of Education, the well-known Supreme Court decision holding the
doctrine of “separate but equal” as a justification for racial segregation in public schools to be
illegal, has often been identified as the root of the movement to achieve rights for the disabled.
The separation of disabled children from non-disabled children, by educating them in special
education classrooms, has been compared to the segregation of African-American school
children from white schools. (Craparo, 2003) Although the rulings in 1954, Brown v. Board of
Education, stated that all children be guaranteed an equal opportunity to education, this was not
the always the case for disabled students. As recently as the 1970s, students with disabilities
were routinely denied educational opportunities. The first major legislative reform to address
these inadequacies came in 1965 when Congress enacted the Elementary and Secondary
Education Act (ESEA) to provide federal funds to improve education for children with
disabilities and other disadvantages. The Education of the Handicapped Act (EHA) in 1970 also
dramatically increased federal funding for special education. However, these reforms were not
sufficiently comprehensive to meet the needs of many disabled students. (Farley, 2002) The
budget for special education prior to the current inclusion movement was only 200 million
dollars, which was to be used to educate over 8 million disabled students. Today over 26 billion
dollars a year is spent on special education. (Ferster, 2010)
Although some students with minor disabilities were beginning to be allowed into
schools, millions were still being denied access until 1975. The major breakthrough in the battle
over inclusion for disabled students occurred with the passage of the Education for All
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Handicapped Children Act of 1975 (EAHCA). Congress, mindful of the need to continue the
progress of educational reform that had become a national focus in the Civil Rights Era, was
particularly concerned that millions of disabled students were receiving either an inappropriate
education or no education at all due to their disabilities. (King, 2009) In its study of the state of
special education in the United States prior to the passage of the EAHCA, Congress found that of
the eight million children with disabilities in the United States, only 3.9 million were receiving
appropriate education, 2.5 million were receiving an inappropriate education, and 1.75 million
were receiving no educational services at all. (Craparo, 2003)
The EAHCA required all public schools accepting federal funds to provide equal access
to all educational opportunities regardless of their disability. In 1990 EAHCA was reauthorized
as the Individuals with Disabilities Education Act. (IDEA) A main component of the IDEA was
that all children in the United States would be guaranteed a Free and Appropriate Public
Education (FAPE). The term “free appropriate public education” means special education and
related services that have been provided at public expense, under public supervision and
direction, and without charge. Meet the standards of the State educational agency. Include an
appropriate preschool, elementary school, or secondary school education in the State involved,
and are provided in conformity with the individualized education program (King, 2009) The
battle for inclusion of all children with disabilities is continued to be fought today, as the
definition of “appropriate” education is still being defined.
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Synopsis: Board of Education of the Hendrick Hudson Central School District v. Rowley
Board of Education of the Hendrick Hudson Central School District v. Rowley, was the
first ruling made by the Supreme Court, regarding the appropriateness of an education for special
needs students. The Supremes Courts decision on the interpretation of FAPE in the Rowley case
set precedence for all other court cases involving FAPE.
Amy Rowley was a deaf first-grader who attended regular classes with the supplemental
assistance of an FM hearing aid, a tutor for the deaf, and speech therapy. Her parents sought the
addition of a sign language interpreter in all of her academic classes. She was performing better
than the average child in her class, and advancing from grade to grade without difficulty. The
lower court, finding that Amy was not learning as much or performing as well academically as
she would without her handicap, had found she was not receiving a FAPE.
The Federal District Court ruled that the Hendrick Central School District had not
provided Amy with an appropriate education that would result in “each handicapped child being
given an opportunity to achieve his/her full potential commensurate with the opportunity
provided other child” (Yell, et al., 2007) Furthermore the judge ruled that disabled students
should be given the same opportunities as non disabled students. Moreover the judge agreed
Amy was not receiving an appropriate education, and the case was brought to the Supreme
Court.
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This was the first time that the Supreme Court had been asked to interpret the IDEA
definition of FAPE. The Supreme Court reversed the decision of the lower court. Ruling in
favor of the school district, noting that at least in the case of a child in regular classes, services
were sufficient when they were “reasonably calculated to enable the child to achieve passing
marks and advance from grade to grade. (Hendrick v. Rowley, 1982)
The Supreme developed a two-part test for the courts to use in determining whether a
school has met its obligations under the IDEA to provide FAPE. First has the school applied
with the procedures of the Act? Second is the IEP developed through the Act’s procedures
reasonably calculated to enable the child to receive educational benefits. (Yell, et al., 2007) The
ruling in this case was that the Hendrick Central School District had met these obligations, and
that Amy had received an appropriate education.
Analysis of Rowley Case
The decisions made in the Rowley case were very controversial toward the future rights
of disabled students. However the Supreme Court’s decision has been one of the most important
and influential cases in special education law. The positive contributions of Rowley, was that it
reaffirmed the right of disabled student to be mainstreamed. The decision also set a standard that
school districts must provided special education programs that conferred educational benefit, and
what was constituted as FAPE, needed to be determined by students IEP. The IEP component
allowed the parents to have some say in what should be included in their child’s education.
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In the Rowley case, the Supreme Court interpreted what it believed Congress had
intended the rights be for disabled students under the IDEA. A major component of this
decision was the interpretation of what is meant by an appropriate education, under the FAPE
requirements. More importantly what individual states must do to be in compliance of the new
laws imposed by the IDEA or at that time EACHA. The Court specifically rejected the lower
court's standard that the state must provide services allowing the child to maximize his potential
“commensurate with the opportunity provided to other children. The Supreme Court relied upon
the text and legislative history of the statute to find that Congressional intent was only to provide
a "basic floor of opportunity" to students with disabilities by providing them access to public
education, as opposed to addressing the quality of education received once in school. (Hendrick
v. Rowley, 1982)
The final ruling by the Supreme Court in Board of Education of the Hendrick Hudson
Central School District v. Rowley was that “The intent of the Act was more to open the door of
public education to handicapped children on appropriate terms than to guarantee any particular
level of education once inside.” While children with disabilities are to be provided equal
educational opportunities and specialized educational services, the Court did not believe that
congressional intent was to achieve strict equality of opportunity or services. (Hendrick v.
Rowley, 1982)
While the Supreme Court had a very difficult job in interpreting what Congress had
intended when creating the IDEA, the decisions made were not made in best interest of the
individual students, rather to protect the schools from potential expensive frivolous lawsuits. In
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Brown v. Board of Education, which helped pave the way for the IDEA, emphasized that all
children have an equal opportunity to an education. The ruling against Amy Rowley not to have
equality of opportunity, or services goes against the main principals of Brown v. Board of
Education.
The second part of the Supreme Court’s ruling was to figure out how to determine if a
disabled student was receiving sufficient educational benefits to satisfy the requirements of the
IDEA. The Court developed a two–part inquiry to determine whether an appropriate program
was being provided. This two-part system requires the schools to follow the procedural
requirements of the IDEA. The second part looks at the IEP, and does the IEP enable the child
to receive educational benefit. This two-part interpretation of appropriateness is so controversial
because it sets the standard for how all future special education cases will be judged.
Furthermore to be deemed appropriate the schools only need to provide some educational
benefit, setting the standard very low, rather than maximize a child’s potential. Moreover the
IDEA does not require that schools develop IEPs that provide students with the best possible
education, nor does it require that the students receive services that enable them to reach their
maximum potential. (Johnson, 2003)
As part of the courts two-part test of FAPE, the Court determined that grading,
advancement, and graduation were important factors in determining educational benefit.
(Hazelkorn, 2004) However, schools often modify grades for students with disabilities, so grades
lose their validity as a measure of benefit or progress. (Johnson, 2003) Also disabled students
may not always be able to participate fully in a classroom setting do to their disabilities. The
Maximizing FAPE
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Supreme Courts recommendation to allow schools to use academic grades for assessment of
educational benefit is subjective and inappropriate measure of progress for special needs students
Literature Review
The importance of mainstreaming has come to the forefront in education over the last two
decades, however the meaningful movement is still being held back do to the standards set in the
Rowley case. The change toward maximizing disabled students educational needs is evident by
congress shifting its view point of on the matter. Congress stated that educating students with
disabilities could be more effective by "having high expectations for such children and ensuring
their access in the general curriculum to the maximum extent possible.” (Schaffer v. West, 2005)
This literature review will discuss the reauthorization of the IDEA in 1997 and 2004 and the
effects No Child Left Behind (NCLB) has had on the equality of inclusion. Furthermore the
financial implications put on school do to the requirements of the FAPE regulations, and the
impact that inclusion has on the general population will also be discussed.
IDEA Reauthorizations of 1997 and 2004
The IDEA was first reauthorized in 1997 in order to improve the effectiveness of special
education. Congress required that IEPs contain measurable annual goals and methods by which
a student’s progress toward their goals would be measured. (Yell, et al., 2007) A second goal of
the amendment was to strengthen the roles that families had in their children’s IEP process.
Parents were to be given frequent updates on the progress of their children, along with being
Maximizing FAPE
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active members in the planning and placement process. (Farley, 2002) This change in the IDEA
moved the priority away from simple allowing disabled students a minimum educational benefit,
towards maximizing their potential. Furthermore the changes allowed the IEP team to know if
the educational needs of the child were being met, and if the educational services and placement
were effective.
The second major amendment of the 1997 reauthorization was to strengthen the least
restrictive environment (LRE) requirement. By doing this congress intended to increase
participation of children with disabilities in the general curriculum and regular classroom.
(Farley, 2002) In the reauthorized statute, it states that “To the maximum extent appropriate,
children with disabilities are educated with children who are not disabled, and that special
classes, separate schooling, or other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and services cannot be achieved
satisfactorily”. (Hazelkorn, 2004) This stance on inclusion is a dramatic difference from their
view on the topic which helped influence the decisions of the Supreme Court in the Rowley case.
Congress push toward a meaningful education for all disabled students has done a great deal
toward providing equality in education, by recognizing the importance of inclusion of students
with disabilities in the regular classroom.
Another major change in the IDEA came in a 2004 reauthorization, which established a
new standard that students with disabilities have access to the general curriculum. The 2004
reauthorization emphasized that educators must focus on results, not on the process (Yell, et al.,
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2007) This policy change helps to ensure that all children are treated equally and given the same
educational opportunities.
NCLB
Standards based education reform became prominent four years after the 1997
reauthorization of IDEA, when Congress passed the No Child Left Behind Act (NCLB), the
purpose of which was “to ensure that all children have a fair, equal, and significant opportunity
to obtain a high-quality education and reach, at a minimum, proficiency on challenging State
academic achievement standards and State academic assessments. (Karger, 2005) NCLB
reaffirmed the federal governments shift toward providing all children a meaningful education.
NCLB requires that all students, including students with disabilities, be at the proficient or
advanced levels by the 2013-2014 school year.
The new academic standards movement of NCLB contradicts the findings in the Rowley
case, that disabled students should only be provided access to schools and a minimal education.
First, education standards establish high expectations for all students, including students with
disabilities. Such standards assume that all students can achieve high levels of learning if they
receive high expectations, clearly defined standards, and effective teaching to support
achievement, then all students will learn more. (Johnson, 2003) The Supreme Court ruling in the
Rowley case was that schools only were required to provide some educational benefit to disabled
students; however NLCB states that in order to receive funding, all children including special
needs students must meet the same academic standards. Furthermore the standard based reform
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requires more accountability on individual schools to meet the academic needs of disabled
students.
Cost or Inclusion
One of the major arguments against full inclusion is the soaring rise in special education
budgets. Since the original passage of the IDEA, the number of students identified as disabled
has increased dramatically, and the costs of educating each disabled child have risen from 200
million dollars to over 26 billion dollars over the course of three decades (Carparo, 2003)
Advocates against inclusion worry that mainstreaming will siphon off needed funding away from
students who most need it
The kind of intensive, one-on-one, program that is being sought in many of the IDEA
autism cases is not cheap. In one recent case, the cost of an intensive Applied Behavioral
Analysis (ABA) program for one pre-school aged child was estimated at between $50,000 and
$63,800 per year. (Seligmann, et al., 2005) This can become an issue as the cost to include some
children can consume over 50% of some special education’s school budgets. The cost of special
education is enormous, with segregated placements costing as much as three times that spent on
non-disabled students. (Connor, et al., 2007) However the cost may be disproportionate to that
spent on non-disabled students, the alternative would be to have them institutionalized, educated
at home, or left to settle for an inequitable education that is unable to meet their specific needs.
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However, the consensus among courts and scholars is that cost cannot be a controlling
factor in determining whether a school district must provide FAPE. If a service is essential to
appropriate education, a school district must provide it regardless of its cost. The only exception
is when there are several ways of meeting a student's need appropriately; in that case, the less
expensive option is acceptable. (Pannell, 2009) In order for special education to be costeffective, the school district must provide more than the minimal services required by Rowley.
Research by (Jacobson, et al., 1998) shows in that early intensive intervention can increase
academic success. Moreover the cost savings from early inclusion can be as much as $30,000$50,000 dollars a year. The greatest cost savings comes from an early diagnosis and the delivery
of services as early as two or three years old.
Impact of Inclusion
Overall, the findings suggest that there are no adverse effects on pupils without Special
Educational Needs (SEN) of including pupils with special needs in mainstream schools.
Furthermore research conclude that inclusion not only ‘does not harm non-disabled children’, but
that there are potential benefits in terms of reduced fear of human differences, growth in social
cognition, improvements in self-concept, development of personal principles, and warm and
caring friendships. (Kalambouka, et al., 2007) Many opponents to the argument will argue that
children with behavioral needs and or physical impairments do not belong in public education,
however there is no evidence that their presence has any negative effects on the learning on nondisabled students.
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Based on their comprehensive review of three meta-analyses, Baker et al. (1995)
conclude that special-needs students educated in regular classes do better academically and
socially than students in non-inclusive settings. This is not always the case as some children
needs are so intensive that they require their educational needs be meant outside of the traditional
school setting. However this is only the case for the minority of disabled students. The vast
majority of special needs students can have their needs meant with early intensive interventions,
while having a positive social and educational benefit on their peers.
The impact on teachers to meet the standers of NCLB and the demands of the IDEA has
been at the forefront of many debates against inclusion. Furthermore teachers in mainstream
schools report that while they agree with the principles of inclusive education, they feel that they
do not have the necessary training and support to provide adequately for such pupils. (Symes &
Humphrey, 2010) This is a major issue that needs to be addressed if the mainstreaming of
disabled students is to be truly effective. Our educational system needs to be reconstructed to
better support teachers. Moreover universities need to adjust their curriculum to better prepare
young teachers to be able to educate special needs students.
Conclusion
The ruling by the Supreme Court in the Board of Education of the Hendrick Hudson
Central School District v. Rowley has set precedence in the United States of inequality of
educational opportunities for disabled students. Furthermore the interpretation of FAPE has
established a minimal educational standard for disabled students. This standard is often referred
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to as entitling students with disabilities to a “serviceable Chevrolet as opposed to a luxury
Cadillac. Fortunately the discrimination that special needs students faced at the time of the
Rowley decision has slowly moved toward providing disabled students a meaningful education.
Over the past three decades IDEA has been successful in the mainstreaming of disabled
students, as special needs students no longer face barriers to accessing public schools.
Reauthorizations of the IDEA and NCLB have assisted in providing high academic standards
and equitable educational opportunities for all special needs students. Many barriers to change
have slowed the high standards movement, such as the cost of inclusion and poorly trained
teachers. Moreover there is no reason to provide disabled students curriculum with minimal
educational benefit.
The Rowley decision has set the standard of equality backwards. It isn’t acceptable to
settle simply for an appropriate education, but rather a meaningful education, that meets the
needs of each student. The modern focus of the IDEA is to revaluate the previous interpretation
of Free and Appropriate Public Education.
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