Running head: SPECIAL EDUCATION
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What is Free Appropriate Public Education?
Sharlet Banks
Oklahoma State University
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What is Free Appropriate Public Education?
Public school classroom teachers across the United States are faced daily with issues
regarding students with disabilities. Some students may have a 504 Plan, while others may have
an IEP (Individual Education Plan). Others may have an identified disability but require no
special type of accommodation or modification in the classroom to be successful. What laws
protect students and adults with disabilities while obtaining an education? What is the
responsibility of the general education teacher in the classroom with regards to these students?
Are teachers accountable for how they teach or what they teach to these students? Must the
teacher follow an IEP or is it optional? Can the teacher be held accountable and if so under what
laws?
Introduction
There are three major federal statutes addressing the right of children with disabilities
with regard to receiving a free appropriate public education (FAPE). These are Section 504 of
the 1973 Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA), and
Americans with Disabilities Act (ADA). FAPE is rooted in the 14th Amendment of the United
States Constitution, which includes Equal Protection and Due Process Clauses.
Section 504 of the Rehabilitation Act of 1973 (Section 504), is a widely recognized as the
first civil rights statute for persons with disabilities and became law May 1977. This Act helped
to pave the way for Americans with Disabilities Act (ADA) in 1990. Section 504 is a civil rights
law. It prohibits discrimination against individuals with disabilities; ensures that children with
disabilities have equal access to an education; allows the child to receive accommodations and
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modifications as needed; does not require the school to provide an individual educational
program (IEP); and has fewer procedural safeguards than IDEA. Section 504 states:
No otherwise qualified individual with a disability in the United States, as defined in
section 705(20) of this title, shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance or under any
program or activity conducted by any Executive agency or by the United States Postal
Service (Wikipedia, Section 504 of the Rehabilitation Act).
Schools must comply with Section 504 by identifying students with disabilities and evaluating
those students. If eligible, the school will create a written accommodation plan referred to as a
504 Plan. This is similar to but much shorter than an IEP as required by IDEA. Parents, teachers
and other school staff can be part of this process; however, the school does not have to invite the
parents to the meetings where the 504 is developed. Parents have due process right when they
disagree with the determination of the school and they have a right to an impartial hearing.
Under Section 504, FAPE is defined as “the provision of regular or special education and
related aids and services that are designed to meet individual needs of handicapped
persons as well as the needs of non-handicapped persons are met and based on adherence
to procedural safeguards outlined in the law” (Wikipedia, Section 504 of the
Rehabilitation Act)
Before IDEA of 1990, Congress passed Public Law 94-142 (PL 94-142) in 1974, also
known as the Education for All Handicapped Children Act. PL 94-142 defined and outlined how
public schools must provide a free appropriate public education at public expense, without
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charge to parent or student, and must be under public supervision to students with disabilities. PL
94-142 was reauthorized in 1990 and renamed IDEA. PL 94-142 (Wikipedia, Free Appropriate
Public Education ) included the following:

Special education and related services tailored to meet the need of the student
with disabilities.

The rights of both student and parents are protected by the Equal Protection
Clause of the 14th Amendment.

School must conduct a “child find’ in their district and refer those students for
services.

Students with disabilities must have an Individual Education Plan developed.

Students must be served in the least restrictive environment to meet their
individual needs along with their nondisabled peers.

Students must be access before being labeled with a disability.

Students are entitled to due process rights of notice and consent.

Students with disabilities are entitled to a free and appropriate public education.

Congress would fund up to 40% of excess costs of educating students with
disabilities. (this has never happened).
Individuals with Disabilities Education Act (IDEA) 1990 is a federal law that governs
how states and public agencies provide early interventions, special education and related services
to children with disabilities. IDEA addresses the educational needs of children with disabilities
from birth to age 21. IDEA recognizes 14 specific categories of disabilities. IDEA is a
“spending clause” legislation meaning that IDEA only applies to those states and their schools
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that accept federal funding under IDEA. If a state refuses to accept the funding, then the state is
not subject to IDEA; however, all states have accepted this funding. In 2004, Congress clarified
the purpose of special education and that IDEA’s intended outcome was for children with a
disability to be provided a free appropriate public education that prepares them for further
education, employment and independent living.
Under the IDEA, FAPE is defined as an educational program that is individualized to a
specific child, designed to meet that child's unique needs, provides access to the general
curriculum, meets the grade-level standards established by the state, and from which the
child receives educational benefit (Wikipedia, Individuals with Disabilities Act).
Americans with Disability Act (ADA) also signed into law in 1990, is also a civil rights
law and does not directly relate to FAPE but is directly related to Section 504. ADA protects
against discrimination based on disabilities. ADA defines a disability as a “physical or mental
impairment that substantially limits a major life activity”. ADA Amendments Act of 2008
(ADAAA) included a list of major life activities
including, but not limited to, "caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working" as well as the
operation of several specified "major bodily functions”.
If a specific condition is correctable, then it is excluded as a disability. This would include
substance abuse or visual impairments, which are correctable by prescription glasses or contacts.
Determination as to whether a condition is considered a disability is made on a case-by-case
basis.
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So how does all of this apply to FAPE and to the district, and specifically to the teachers
and students? By definition, FAPE must be provided at public expense, under public supervision
and direction, and without charge to parents except for fees that are charged for all students.
Private schools are not required to provide FAPE, and they are not required to implement the
IEP. An appropriate public education must be specifically designed to meet the unique needs of
the child; address both academic needs and functional needs; provide access to the general
curriculum to meet the challenging expectations established for all children, is provided in
accordance with the IEP and is reasonably calculated to enable the child to receive educational
benefits. “The Act, as currently interpreted by the Supreme Court, requires no substantive
measures regarding the level of education; therefore, the state does not have to maximize the
potential of the child, only provide a program that benefits the child” (Kern & Alexander, 2012).
The educational program must be designed for the child to “benefit” from the educational
services received.
What is FAPE in the classroom?
Once a student is identified and an IEP is developed, the teacher MUST implement the
IEP. Implementation is NOT optional. An IEP is a federally binding contract that the school
district and the parents or guardians of the student agree to implement as written. Teachers
cannot use the excuse that he or she was not in attendance at the IEP meeting, nor can they use
the excuse that they did not personally sign the IEP. Once the IEP team has agreed to the
provisions on the IEP, then all teachers or other staff who come into contact with said student
must abide by the IEP. The teacher cannot select particular parts of the IEP he or she chooses to
follow. By not following the provision of the IEP, the teacher puts himself or herself in a
position to be sued by the parent or to be dismissed by the district.
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Board of Education of Hendrick Hudson Central School v. Rowley
The educational program must be designed for the child to “benefit” from the educational
services received. So what is meant by “benefit”? In the Supreme Court case, 1982, Board of
Education of Hendrick Hudson Central School v. Rowley, Justice White questioned the term
“benefit” (BOE v. Rowley, 1982). In this case, a deaf student, Amy, was being instructed by a
teacher with a loud voice. Amy was an excellent lip reader and she was provided with an FM
hearing aid, which amplified words spoken into a wireless receiver by the teacher. Amy found
this accommodation very successful. However, the parents wanted Amy to have a qualified signlanguage interpreter in all her academic classes in lieu of the assistance proposed in other parts of
the IEP. When Amy had an interpreter in kindergarten, the interpreter reported that Amy did not
need his services at that time and, therefore, the school denied the use of an interpreter. The
parents were not happy with this, and they took their case all the way to the Supreme Court. The
Court determined that FAPE was being provided to Amy and she was receiving educational
instruction designed to meet her unique needs that allowed her to “benefit” from the instruction
given.
Some federal courts argue that Rowley requires a higher standard of “benefit”, “Congress
did not intend that a school system should discharge its duty…by providing a program that
produces some minimal academic advancement, no matter how trivial” (Kern & Alexander,
2012). Later the Sixth Circuit in Doe v. Smith, the “benefit” must be more than de minimis, and
the Tenth Circuit has held that Rowley requires more than de minimis benefit in the case with a
child with a severe disability. The Fifth Circuit has also stated that the education benefit cannot
be mere modicum or de minimis. According to the court decision in the Rowley case, the “Free
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Appropriate Public Education” clause of PL 92-142 does not require a state to maximize the
potential of each special needs child.
Free appropriate public education submitted in an IEP does not have to be the best
possible one nor one that will maximize the child’s educational potential. Rather the education
received need only to be an “education that is specifically designed to meet the child’s unique
needs, supported by services that will permit him to benefit from the instruction” (Wrights Law,
2012).
The Supreme Court also weighed on the meaning of FAPE under IDEA and created the
Rowley Standard,

The child must receive a basic floor of opportunity

Individually designed to provide some educational benefit

Passing grades in classes and advancement to a higher grade is one way to
show progress, (Special Education Advisor).
Since the statue does not define what educational benefit mean, the standard is defined in
other federal regulations and by ongoing case law. Most courts have found that in order to prove
FAPE is being provided, the child must make some educational progress. A number of courts
have struggled with the question of how much is sufficient because the standards are still vague.
As stated in Rowley, the Court ruled that IDEA does not require states to develop IEPs that
“maximize the potential of students with disabilities”.
Walczak v. Florida Union Free School District
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Children are not entitled to the best education that money can buy. Children are only
entitled to a free appropriate public education. This was established by Walczak v. Florida Union
Free School District in 1998 (Walczak v. Florida, 1997). Again, this ruling requires the progress
of the child with special needs be meaningful and more than de minimus. The Walczaks’
daughter had a learning disability. The Walczaks disagreed with the placement and services the
public school was providing for their child. They contended that a private residential school was
a more appropriate placement and sued Florida Union Free School District to pay the tuition for
their daughter to attend this private school. The Walczaks disagreed with the placement in the
IEP to provide services to their daughter in the public school setting, believing their daughter's
needs could not be met in a day program and that she required a residential placement.
The Walczaks filed due process. The hearing officer ruled in favor of the school district.
After two different hearing officers and still not satisfied, the Walczaks eventually ended at the
Supreme Court. The court found the IEP was appropriate and the school district was following
the IEP. Again, FAPE, is free appropriate public education, not necessarily the best education.
Doe v. Withers
Doe v. Withers is a 1992 case that was decided in part under the United States Code
Section 1983 (Doe v. Withers, 1992). The parents filed suit, claiming their son was deprived his
statutorily granted civil right to FAPE under IDEA. In this case, Doe had a learning disability.
His educational program was adapted to provide for oral testing by a learning disabilities teacher
in a learning disabilities resource classroom (Wrights Law, 2012). All but one of his teachers
complied with the accommodations as written in the IEP. The history teacher refused to allow
Doe to take his test in the resources room. The student was not successful in this general
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education classroom. The teacher knew and understood that according to the child’s IEP, the
student was to be tested in the general education classroom. The teacher also ignored the pleas
from his administration to comply with the request of the IEP. The teacher continuously made
excuses each time the parent wanted to discuss their son’s progress or lack of progress in his
class.
At mid-term, the teacher took a short-term leave of absence and a long-term substitute
teacher took over the class. The substitute teacher complied with the IEP request and the student
began to make classroom improvement. The parents filed a grievance against the Defendant,
Michael Withers. The civil action suit was filed in the Circuit Court of Taylor County, West
Virginia against Michael Withers (individually and as a teacher at Grafton High School), Greg
Cartwright (individually and as the principal at Grafton High School), Wendell Teets
(individually and as a Superintendent of Grafton High School), and the Taylor County Board of
Education.
The judge relieved all the school officials of liability except for the teacher, Michael
Withers. The jury awarded the student and his parents $5,000 in compensatory damages and
$10,000 in punitive damages plus cost of litigation. Doe v. Withers was more than a simple jury
trial; it was a landmark case and was not appealed. IDEA 2004 states that an IEP must be
developed and “reasonably calculated to enable the child to receive educational benefits,”
(Wrights Law, 2012) such as achieving passing marks and grade advancement. The IEP is a
legally binding contract. Teachers and administrators do not have a choice but to follow the IEP
as developed by the IEP team. Most courts have held that monetary damages are not available
under IDEA but may be available under Section 504 of the Rehabilitation Act. Several courts of
appeals have ruled that before bringing a damage cases under Section 504 and/or the Americans
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with Disabilities ACT (ADA), parents must first deplete their administrative remedies under
IDEA.
Implications
Teachers do NOT have academic freedom to instruct and evaluate students as they
choose. Regardless, the services, modification, and accommodations required by an IEP must be
implemented. The judge and the hearing officer in Doe v. Withers stated, “All school personnel
have this responsibility” (Wrights Law, 2012). This cased paved the way for subsequent special
education damage cases, such as W.B. v. Matula, a landmark case from the United States Court
of Appeals for the Third Circuit, and Witte v. Clark County, a recent case from the United States
of Appeals for the Ninth Circuit.
Conclusion
Teachers do not have the freedom to choose which parts of the IEP they wish to follow.
An IEP is a legal binding contract the school and the parents enter into regarding the services and
placement that MUST be provided to the student. A teacher cannot use any excuses to NOT
follow the IEP. The site administrators, the district administrators, and even the school board can
be held accountable for not implementing or forcing the teachers to follow the IEP as written. As
we have found, those who do not follow the IEP can be sued in court if found in violation of
FAPE.
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References
Board of Education of Hendrick Hudson Central School v. Rowley, 458 US 176 (United States
Supreme Court 1982).
Doe v. Withers, Civil Action 92-C-92 (Circuit Court of Taylor County 1992).
Walczak v. Florida Union Free School District, 97-7155 (US Court of Appeals for the 2nd
Circuit April 16, 1997).
Wrights Law. (2012, 4). Retrieved from Wrights Law: www.wrightslaw.com
Kern, A., & Alexander, M. D. (2012). American Public School Law (8th ed.). Belmont, Ca:
Cengage Learning.
Special Education Advisor. (n.d.). FAPE v FAPE: IDEA and Section 504. Retrieved from
Special Education Advisor: http://www.specialeducationadvisor.com/fape-vs-fape-ideasection-504/
Wikipedia. (n.d.). Free Appropriate Public Education . Retrieved from Wikipedia:
http://en.wikipedia.org/wiki/Free_Appropriate_Public_Education_(FAPE)
Wikipedia. (n.d.). Individuals with Disabilities Act. Retrieved 2012, from Wikipedia:
http://en.wikipedia.org/wiki/Individuals_with_Disabilities_Education_Act
Wikipedia. (n.d.). Section 504 of the Rehabilitation Act. Retrieved 2012, from Wikipedia:
http://en.wikipedia.org/wiki/Section_504_of_the_Rehabilitation_Act