Maximizing FAPE 1 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 2 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. Maximizing FAPE 3 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 Maximizing FAPE 4 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. Maximizing FAPE 5 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. Maximizing FAPE 6 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. Maximizing FAPE 7 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 Maximizing FAPE 8 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 9 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 10 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., Maximizing FAPE 11 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 Maximizing FAPE 12 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. Maximizing FAPE 13 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. Maximizing FAPE 14 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 Maximizing FAPE 15 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. Maximizing FAPE 16 References BAKER, E. T., WANG, M. C. & WALBERG, H. J. (1995) The effects of inclusion on learning, Educational Leadership , 52(4), pp. 33–35. Board of Education of the Hendrick Hudson Central School District v. Rowley.458 U.S. 176 (1982) Connor, David J., and Beth A. Ferri. "The Conflic Within: Resistance to Inclusion and other Paradoxes in Special Education." Disablity and Society 22.1 (2007): 64-77. Print. Craparo, Therese. "REMEMBERING THE “INDIVIDUALS” OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT." 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