Free Appropriate Public Education: Case Law Implications - Coursework Example

Free Appropriate Public Education: Case Law Implications Handicapped children, whether physically, mentally or emotionally disabled, are en d under the law to a free appropriate public education. The Individuals with Disabilities Education Act (IDEA 2004) is the foundational legislation which defines who may be considered handicapped (someone who is diagnosed with a handicap), and gives broad guidelines for how school systems are to handle the education of disabled children. A “free appropriate public education” (FAPE) is defined as follows (Deal v. Hamilton County Board of Education, 2004, p. 9): Services that are provided under public supervision and direction, at public expense, and without charge; Educational services which meet state standards as set forth by individual states; Services which involve appropriate settings, i.e. preschool, elementary, or secondary schools; and Services which conform to the individualized education program (IEP) as the IEP is defined by IDEA regulations. Since the legislation itself is rather broad, school systems, parents, and the courts have been defining various boundaries and procedures for ensuring that all children receive this type of education. With so much information available (and so many acronyms), making sense of FAPE can be difficult; when specific cases are involved, the boundaries of FAPE are defined by that child’s needs—which can set precedents that other cases or schools must follow. Zirkel (2009) reviews several confusions regarding how FAPE is related to current IDEA regulation, and Arkontaky (2009) takes a parent’s view in the sometimes murky workings of the legislation and the many acronyms which have arisen from its application. The individualized education plan (IEP) is the main instrument which guides the child’s educational career. It is developed by committee and parents must participate in its development. School personnel who design an IEP are assumed to do so with an open mind, and even though they present parents with a preliminary plan, it is not considered predetermined—it is not finalized until all parties agree that it is. The parents may request an Impartial Hearing Officer (IHO) at any time to help them sort through any confusions and to make recommendations (also known as due process, which will be discussed in more depth in a moment). Also, the plan is developed based on current and past knowledge of the child and his/her needs, which is important; later developments in the child’s academic life may show that if something different had been done, then the child would have progressed better. The prevailing view is that school personnel do their best with the information they have at hand. Both parents and school officials may invite any appropriate party to hearings and meetings. Parents have the uncontested right to require the school district to cease education of a child after submitting written consent. The district then completely stops and abandons the IEP process and may not appeal the parents’ decision. The IDEA regulations specifically call for formulating an individualized education plan for children with disabilities, which follows the student throughout his/her academic career with an eye toward success after graduation (Arkontaky, 2009). An IEP is a somewhat complex set of documents designed for each student referred for special services. (In the case of Deal v. Hamilton County Board of Education (2004), the child in question had a 95-page IEP before he turned five years old.) Basically, it outlines the various services and goals for the child, and designates who will be responsible for ensuring that the staff and child work toward those goals. It specifically names dates and locations of service (i.e., regular classroom, service rooms, designated special education rooms, community based education, or recreational areas), and makes notes on special equipment or transportation needs. An important notation on the IEP is the number of hours the child will spend with non-disabled peers, and the specific restrictions on time not spent with non-disabled peers. The exclusion of the child must be fully explained because inclusion is the foundational concept of FAPE; the child is never to be completely excluded from education, but schools may limit his or her interaction with other students (Arkontaky, 2009; Timothy W. v. Rochester School District, 1989; Board of Education v. Rowley, 1982). The IEP is supposed to be an individualized plan designed around the child’s initial and continuing needs. Schools have made the mistake of generalizing IEPs, or of using a template type mindset that looks at the child’s diagnosed disability and makes broad brushstroke recommendations. The paperwork involved can be overwhelming, but schools must make sure that even if they use templates, they are individualized (Zirkel, 2009; Arkontaky, 2009; Etscheidt, 2007). Since regular classroom teachers, special education teachers, parents, administrators, and even the students (if age appropriate) contribute to designing and implementing the plan, there certainly may be times when compromise or accommodation on goals is called for. A parent’s expectations may be different from an administrator’s reality; or an administrator may introduce negative comments and the parent may not advocate properly for the child. To preclude these possibilities, neutral third parties are also supposed to be included on the team. There must be a careful balance between expectations and realities, always centered upon the needs of the individual child. Regardless of disability status or diagnosis, children must be treated as individuals and those involved in designing the IEP must create a plan that reflects the student’s actual status and grade level as well as allowing for goal attainment, as appropriate. In her review of literature about the relationship between FAPE and the IEP, Etscheidt (2007) points out that the process of formulating a plan involves more legality than learning in some instances. Specifically, the excusal clause may interfere with the child’s right to a free and appropriate public education. In the formation of an IEP team, it is required that regular classroom teachers, special education teachers, and parents agree on the plan, but in some cases one or more of these people may be excused from the process—with consent and with review of the plan in question, but without the opportunity for input into the process. Particularly, excusing the regular classroom teacher predetermines that the child will not be mainstreamed, or so several cases have determined (M.L. v. Federal Way School District, 2004). In some cases, the omission of the regular classroom teacher has been so egregious that the courts have awarded parents reimbursement for private school tuition (Deal v. Hamilton County Board of Education, 2004); though most hearings happen on a local level, district or federal courts have sometimes been involved in defining the boundaries of the IEP team. The IEP is a formal and somewhat theoretical set of documents; its application for a child in the classroom puts it to the test. IDEA regulations lay the groundwork for positive inclusion and encourage regular classroom teachers to use their knowledge of what works for a non-disabled child as it could apply to a disabled child (M.L. v. Federal Way School District, 2004; Zirkel, 2009). Children are to be included if their behavior or disability does not interfere with other children’s learning. Etscheidt and Clopton (2008) provide contrasting examples of how the IEP is applied to behavior, for instance, and what happens when someone in the chain disagrees with its efficacy. In the Fullerton Elementary School District, the teachers of a 13 year old student with multiple challenging behaviors designed a classroom-wide behavior and reward system, combining the goals of the child’s IEP with regular classroom discipline. Thus, all students followed the same rules, and a point system for positive and negative behaviors was applied to all. According to her IEP, the challenging child also had manageable schedules and an individual point chart as support. Her parents challenged this system and called for a hearing, but the hearing officer upheld the efficacy of the system for this individual girl. In this way, the teachers and administrators had the opportunity to make the IEP fit with general classroom instruction, and the parents had the opportunity to challenge it through a due process hearing. A third party determined that the method chosen for behavior management was correct in this instance. In a similar instance discussed by Etscheidt and Clopton (2008), the Half Hollow Hills Central School District applied a classroom-wide behavior management system which did not meet the needs of a 9 year old boy with diagnosed ODD and ADHD. The hearing found that the practice of sending children to a “redirection” room (time-out room) did not address this child’s need to learn how to manage his behavior; he was simply spending too much time apart from the class. In this instance, the IEP did not go far enough and a general discipline system was insufficient. These contrasting examples show that it can be a fine line between having equal expectations of all students (disabled and non-disabled), which is one of the goals of inclusive education, and meeting the needs of a challenged child in a variety of settings. The IEP is not set in stone; at any point in the process, suggestions can be offered that may make it more effective for the individual child. Case Law Surrounding FAPE and the IEP One of the most seminal court cases which set an important precedent in education law was Board of Education v. Rowley from 1982. In Rowley, the court upheld that a hearing impaired girl had been denied FAPE because the school district would not provide a sign language interpreter for all her classes. An IEP was developed for the child that stated she would be mainstreamed into the regular classroom. Since she was an excellent lip reader, the school district summarily terminated the services of an interpreter, stating that she was doing well and did not need him in all her classes. The case went through the usual procedures of protest and hearing, and ended up in court, which determined that the child could not fulfill her potential because of her handicap, without special assistance. The case was about more than the child reaching her potential; being one of the first of its kind, it established some of the boundaries of FAPE which have been continually tested and refined since. Though at the time the IDEA regulations did not specifically name all the instances which would define FAPE, the judgment showed that substantive compliance was just as important as procedural compliance. The court did not try to define FAPE specifically, but left the determination open to be decided by individual school systems and the parents of children in question. Yell, Katsiyannis, and Hazelkorn (2007) observe that the case “has been the most important and influential case in special education law” even though it did not establish any single test of appropriateness (p. 5). Meaningful benefit was discussed; though in Amy’s instance, she was receiving benefit from her educational experiences, a certain line was drawn which would help other courts decide whether meaningful is important in a child’s education, thus helping to define what is appropriate. One particular case concerned with meaningful benefit will be discussed in a moment. It is important to understand the historical background which led to the Rowley decision. In the seminal Goss v. Lopez in 1975, the Supreme Court heard a case which challenged interpretations of the 14th Amendment’s provision of due process (Goss v Lopez; Singer, 1975). Nine Ohio students were suspended without notice, as was the procedure in place in the school at the time. The administrators argued that there was no constitutional right to a free appropriate public education, thus due process was unnecessary. The Court answered that because of compulsory attendance laws, the state of Ohio had set up an expectation of FAPE and could not arbitrarily withdraw that right through suspending students without due process. Basically, the Goss v. Lopez decision set the precedent that schools could no longer make arbitrary decisions which could deny a child the right to a free appropriate public education (which, by state law, is compulsory). In this specific case, the denial was related to suspension without due process; the Court did not define due process, but in intervening years the case has been taken a bit further in instances of advocacy for disabled children. One commentator at the time (Singer, 1975), noted several issues which could be raised by this decision: “… the specter of judicial review of grading, promotion and programmatic decisions, which in the dissent’s view may involve deprivation or stigma of greater magnitude than a short-term suspension” (p. 269). These were prophetic words indeed; what constitutes due process and free appropriate public education has been tested, refined, and redefined in numerous cases since. In the 1989 case of Timothy W. v. Rochester School District, lower courts held that a severely handicapped child is not entitled to FAPE if he could not benefit from that instruction. The higher courts reversed that decision, citing that the IDEA regulations called for education of all handicapped children with special emphasis on the most severely handicapped, and IDEA made no provision for what constituted “benefit” or usefulness of the education (p. 2). This is in contrast to Rowley (1982), which specifically found that lack of benefit could be grounds for exclusion; in the Rowley case, the child was already benefitting from education despite her handicap. The Timothy case, taken individually, showed that child was not benefitting already, so excluding him on the basis of theoretical assumptions was not good enough. This case is particularly important because it set the precedent that no subsequent cases could be thrown out because the child might not benefit from FAPE. The assumption is that FAPE is required for all children, without exception based on severity of handicap. Then, the court argues, each individual child is treated separately with regard to what constitutes FAPE in his/her instance. This is also the basis for the IEP; it is an individualized plan which may borrow from best practices and apply what works for another child, but must be adjusted and formulated on an individual, case by case basis. The case of M.L. v. Federal Way School District shows how important it is for school districts to follow exact procedures in forming and IEP team and plan. This 2004 case weighed whether the FWSD made a harmless error in excusing a regular classroom teacher from the team. The child in question was diagnosed with autism spectrum disorder and experts had determined that he needed a structured environment with a dedicated service provider. During his preschool years, his symptoms and behavior improved and an IEP was formulated so he could participate in integrated kindergarten. When the family moved to a new district, the plan followed him (which is procedure) and the new district implemented it. Because of several teasing incidents, the mother removed her child from the school; the district offered an alternative but the mother did not take them up on it. When the district convened an IEP team to review the documents, they did not include a regular classroom teacher on the new team, which the court upheld was a requirement under IDEA regulations. The opinions remind everyone of the basic wording of the IDEA regulations: the IEP team must consist of the parents; a regular education teacher, who must be present even if the child is not already participating in regular education; a special education teacher or provider; qualified staff such as supervisors or resource specialists; someone who can interpret (simplify) the discussion until everyone in attendance understands the implications of decisions; and any other individuals who offer expert insight on behalf of the parents or the school system, including presenting alternatives. Where appropriate, the child must also be included (paras. 36-45). Since a general education teacher was not included, the parents felt that the process had broken down, and the court agreed. Thus the parent’s suit was upheld and the court determined the child had been denied FAPE. Another 2004 case, Deal v. Hamilton County Board of Education, the courts determined that the school district was so remiss that the parents were entitled to reimbursement for private school education tuition, specifically for in-home autism services. Basically, the school system had a policy of refusing to consider the type of educational method the parents demanded, even though in this case it clearly benefitted the student to have such one-on-one, structured instruction. This policy was demonstrated in the school’s refusal to listen to the parents when they tried to add their input into the IEP developed for the child. Again, regular education teachers were not involved in the IEP team, and the school would not consider the specialized education as an appropriate program for the child. There was some discussion during the opinions as to the fact that the school system did not want to set a precedent for providing such extensive autism services for all autistic children (p. 14), which the case did in the end; other cases have been decided since which allow parents reimbursement for private education outside of the school. These intensive types of programs have been proven to educate autistic children in a better way than mainstream public schools do, because they are individualized instruction which focuses upon the child at hand. Each of these cases interrelates with each other and with prior opinions, and sets precedents for subsequent courts (and less formal hearings) to use when determining what constitutes FAPE for an individual child. What began with nine expelled students evolved into due process considerations for a handicapped child; a case which was decided, in a way, against the child. Following that, the courts determined that yes, indeed, all children are entitled to a free appropriate public education, regardless of disability or potential benefit; this has evolved into further refinements in which parents have taken an active role in determining what is appropriate for their individual children. One particular ramification of the Rowley (1982) case was that it opened the way for encouraging research into educating disabled children, improved progress monitoring at every step in the process, and increased accountability from school districts, which are all positive improvements (Yell, Katsiyannis, and Hazelkorn, 2007). The IDEA regulations have opened the way for parental advocacy, and while the process has been torturous at times, lawmakers, parents and courts keep returning to the central issue: what is in the best interest of the child. Concluding Remarks Overall, the theory behind a “free appropriate public education” is an excellent basis for ensuring that all children receive some kind of education, based upon each individual’s abilities. In practice, school systems and parents are refining what constitutes appropriate, and in some cases parents have refined what is meant by free because they have been awarded reimbursement for private tuition. Likewise, the individualized education program serves as an excellent guide for that child’s education, but procedures must be followed very carefully so as to not violate regulations. Though the system occasionally breaks down, it is necessary to ensure that each and every child gets the education to which he or she is entitled. Developing the IEP may be a complex process involving many parties and opinions, but if it is followed step by step, the child benefits. Looking at each child individually allows for that child to reach full potential despite any handicaps, and allows non-disabled peers the opportunity to interact with children who are different but not unequal. The guidelines are clear, as is seen in the various cases discussed here and in the literature in general. Certain types of expertise must be present in the IEP team, because each person’s strengths contribute to formulating a plan which provides an appropriate education to a particular child. While the courts and legislature have very carefully kept from defining what FAPE means, school districts and parents have attempted to do so, often beginning long before a child would normally enter public school. This type of advocacy is important so a child’s progress can be mapped out with clear goals and responsibilities, and so the plan can be transported from one district to another with a minimum of disturbance in the child’s education. The definition of “free” is somewhat more elusive. Several court cases have shown that school districts can be required to reimburse parents for private expenses, within reason, if those expenses are a substitution for an education the child might normally receive in mainstream public schools. School districts depend upon a general budget to provide services for all children; it remains to be seen at what point an individual child will be taking more than his or her fair share of the budget and thus interfering with the rights of non-disabled children to receive free and appropriate public education. It is vitally important to protect the rights of the handicapped and to advocate for them; for too long, exclusion was the basic policy of schools and parents had to accept that. Cases such as Goss (1975) and Rowley (1982) have certainly set precedents, just as cases which have followed. References Arkontaky, A. (2009). An overview of special education law. Hudson Valley Business Journal, 19(12), 11. Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982). Available from http://www.uwyo.edu/wind/edec5250/assignments/Hendrick.pdf Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004). Available from http://www.ca6.uscourts.gov/opinions.pdf/04a0434p-06.pdf Etscheidt, S. (2007). The excusal provision of IDEA 2004: Streamlining procedural compliance or prejudicing rights of students with disabilities? Preventing School Failure, 51(4), 13-18. Etscheidt, S. and Clopton, K. (2008). Behavior intervention plans. Educating Individuals With Disabilities. E.L. Grigorenko, ed. New York: Springer. Goss v. Lopez, 419 U.S. 565 (1975). Available from http://www.tourolaw.edu/patch/Goss/ M.L. v. Federal Way School District, 387 F.3d 1001 (2004). Available from http://www.wrightslaw.com/law/caselaw/04/9d.ml.fedway.wa.htm Singer, R. (1975). Due process and school suspensions: Goss v Lopez. American Business Law Journal, 13(2), 266-272. Timothy W. v. Rochester School District, 875 F.2d 954 (1989). Available from http://www.uwyo.edu/wind//edec5250/assignments/TimothyWappeal.pdf Yell, M., Katsiyannis, A., and Hazelkorn, M. (2007). Reflections on the 25th anniversary of the U.S. Supreme Court’s decision in Board of Education v. Rowley. Focus on Exceptional Children, 39(9), 1-12. Zirkel, P. (2009). What does the law say? Teaching Exceptional Children, 41(5), 73-75. Read More