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Children making progress are still entitled to FAPE

 

 

For some students with disabilities, test scores and class grades are not the main challenges at school. Grades illustrate only a part of a child’s experience in attending school, while their day-to-day life may tell an entirely different story. If a child is demonstrating a pattern of social and behavioral issues, they are not receiving a Free Appropriate Public Education (FAPE), even if they have good grades. However, a school district might not assess the child or provide special education for a student whose grades are high. This response by a school district must not be accepted, and parents are entitled to challenge this decision in a court of law. Parents whose child is diagnosed as having one or more of the 16 disabilities covered by the Individuals with Disabilities Education Act (IDEA) can and should qualify their child for special education in order to ensure the child receives a FAPE.

 

 

 

The FAPE mandate in the IDEA

 

In the 1982 case Board of Education v. Rowley, the Supreme Court ruled that the IDEA mandates Individualized Educational Programs (IEPs) for students with disabilities in order to give them a Free Appropriate Public Education (FAPE). The court explained that the FAPE must be tailored to the unique needs of the child (who has been diagnosed as having one or more of the 16 disabilities covered by the IDEA) by means of an IEP. The Rowley Court also stated that it was not holding that “every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a ‘free appropriate education.’” As such, “the Rowley standard has been applied to children with less than severe disabilities to require extra services even though a child is passing academic subjects.” Even if grades are unaffected the IDEA clearly established that “a child must be assessed in all areas related to the suspected disability, including, if appropriate, health and social and emotional issues.”

1.) Board of Education of the Hendrick Hudson Central School District, Westchester Country, et. al. v. Amy Rowley, by her parents, Rowley et. al.

2.) Mawdsley, R., Redfield, S., & Weber, M., Special Education: Cases and Materials, Third Edition. New Providence: LexisNexis. 2010.

 

 

Additional components of the IDEA

 

The impact of the diagnoses covered by the IDEA extends far beyond the range of academic test results and class grades. In the case that a student is denied an assessment by their school district, the district can be found guilty of violating the Child Find Mandate. This is an important component of the IDEA, which states that public schools are legally obligated to find children who have

disabilities and need services. However, it is easy for a district to overlook a student who has good grades. For example, a child with extreme ADHD might have great grades, but spends over 8 hours daily to complete his homework after school; thus, he is not receiving a FAPE. The same goes for a child who leaves class to go to the bathroom and does not return until the end of the period, as well as a child who isolates herself from her peers and cuts herself during class. The school is obligated under the IDEA to evaluate these students, whatever their grades may be.

 

There are a variety of cases that “support the notion that courts can order special education services even though a student is making some educational progress.” For example, in Hall v. Vance County Board of Education, the court ruled that a dyslexic student with above-average intelligence was entitled to private tutoring under the IDEA, citing that “FAPE must be tailored to the individual child’s capabilities,” and a showing of improvement on test results was not sufficient. With regards to emotional issues, the ruling of the 1986 district court case Max M. v. Illinois State Board of Education held that “a school district denied FAPE to a high school student when it failed to provide psychotherapy as recommended by the district’s psychologist” in order for the student to succeed emotionally, socially and academically. Despite the student’s passing grades, and the fact that he had earned more than the required amount of credits to graduate, this court correctly determined that his emotional and social issues prevented him from having a FAPE as defined under the IDEA.

 

3.) Gerstein, R. & Gerstein, L., Education Law: An Essential Guide for Attorneys, Teachers, Administrators, Parents and Students, Second Edition. Tuscon: Lawyers & Judges Publishing Company, Inc. 2007.

4.) Mawdsley, R., Redfield, S., & Weber, M., Special Education: Cases and Materials, Third Edition. New Providence: LexisNexis. 2010.

 

 

 

Additionally, consider the impact of bullying in a child’s FAPE. For obvious reasons, the impacts of bullying on a student’s educational experience cannot be seen solely in the student’s grades. Fortunately, under the IDEA a FAPE is intended to cover much more than passing grades, and “at least five circuit courts have acknowledged that bullying can be a basis for finding denial of a FAPE under the IDEA.”  In T.K. ex rel L.K. v. New York City Department of Education, the Second Circuit found that the school’s refusal to discuss bullying with the concerned student’s parents ‘significantly impeded’ Plaintiffs’ right to participate in the development of the student’s 2008-2009 IEP. In response to this lengthy case, the United States Department of Education and the Department of Justice submitted an amicus brief, in which they “argue that bullying can result in denial of a FAPE under the IDEA.” As such, it is confirmed that bullying can prevent/has prevented a student from obtaining a meaningful educational benefit, and that an IEP must address the needs of the student being bullied.

 

Key takeaways

  • The IDEA is intended to extend to all students with disabilities, and is comprised of a number of mandates by which schools must comply.

 

  • The Child Find mandate of the IDEA entails that a school is legally obligated to evaluate a student if there is reason to believe that this student has a disability.

    • If the school claims to lack reason to assess a student, the parents are entitled to challenge the decision in a due process hearing.

 

  • The FAPE mandate of the IDEA is not fulfilled by passing grades alone, and a child mustn’t be denied an IEP on the grounds that they have good grades.

5.) Ganley, S. “Bullying and the Individuals with Disabilities Education Act (IDEA): A Framework for Providing Relief to Students with Disabilities. Cardozo Law Review. New York: 2016.

 

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