FAPE

This trend is really bothersome to me. I have recently had conversations with several different parents who are unfamiliar with the term FAPE or FAPE for students with disabilities. I even had one claim that “FAPE isn’t a term that we use in my state.”

First, yes it is. Second, every parent needs to understand what FAPE is. It is the cornerstone of Special Education.

The Supreme Court plays an important role in FAPE and defining our kids' rights.

Understanding and embracing the concept of FAPE is what makes good advocates great advocates.

What is FAPE?

The short answer is that FAPE is Free and Appropriate Education. FAPE is everything.

FAPE stands for Free and Appropriate Education. That is a term that was used in a Supreme Court case that helped better define what our kids’ rights are. It’s just what it says it is.

What FAPE means is this: Every child has a right to a free and appropriate education. It’s that word “appropriate” that we’ve been arguing over ever since, but I digress.

From Wikipedia:

Free Appropriate Public Education (FAPE) is an educational right of all children in the United States that is guaranteed by the Rehabilitation Act of 1973[1] and the Individuals with Disabilities Education Act (IDEA).

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 adequately as the needs of non-handicapped persons are met and are based on adherence to procedures that satisfy the requirements of” the section.

IDEA and FAPE

Under the IDEA, FAPE is defined as an educational program that is individualized to a specific child, that meets 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.[2] The United States Department of Education issues regulations that define[3] and govern[4] the provision of FAPE.

To provide FAPE to a child with a disability, schools must provide students with an education, including specialized instruction and related services, that prepares the child for further education, employment, and independent living.[5]

Your child is entitled for FAPE. It is the main principle of IDEA. Remember, until 1975, it was common practice to exclude children with disabilities from the public schools.

iep files scattered on a desk

FAPE Court Cases

What do you think about Justice Scalia’s passing and the decision to nominate or block a Supreme Court nominee? (this was written shortly after his passing but updated recently)

Did you know that there dozens, if not hundreds, of Supreme Court cases that changed Special Education?

There’s a lot of talk right now about the Supreme Court. Should he appoint, should he wait? And maybe, with all the “noise” out there, you’re ignoring it. Maybe you think it doesn’t apply to you. But, the Supreme Court has handed down some very important decisions regarding Special Education.

I don’t know what the actual breakdown is–how many cases that are heard by the SCOTUS are special education cases, as a percentage. But, it’s enough that we do need to be concerned about who is deciding. This is exactly why all Special Needs parents need to be involved in advocacy.

IDEA sets the framework for what schools should be doing. And state regs may further define it for us or give more details. But much of the nitty-gritty is still determined by case law. And this is only SCOTUS case law that I am presenting, just because we have a SCOTUS vacancy right now.

There is still much fascinating information in the federal district courts. Many parties choose to stop after a federal decision. Or, the SCOTUS can refuse to hear the case, thus cementing the Federal court decision.

I originally wrote this post right around the time of Scalia’s passing. Since then, we have had the Endrew Case.

Endrew was important not only because it helped define FAPE, but because it was an early and unanimous decision.

Here are some talking points about Endrew and 7 other Supreme Court Cases that shaped special education.

Special Education Court Cases

1954-Brown v. Board of Education

Provided an equal opportunity for all.
“Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms.”

Although this case was originally about race, in subsequent cases, it has been used and pointed to as a reason to include kids with disabilities.

1982- Rowley v. Board of Education (when was FAPE established?)


FAPE! SCOTUS decision was that the IDEA requires proposed special education and related services to be “reasonably calculated to enable (student) to receive educational benefits.”

The phrase “reasonably calculated” has generally been understood to mean that the IDEA does not guarantee any particular result—rather, the educational services proposed by a school district must only be reasonably likely to provide sufficient benefit to the student.

The key remaining question, of course, is how much benefit is sufficient under the IDEA’s FAPE mandate.

The Rowley case gave a little bit more definition of “appropriate” and related services, held the school district accountable for procedural violations that caused harm to the student, and it determined that grades are not to be the sole criteria in determining success.

1984-Tatro v. Irving Independent School District


SCOTUS determined that a child could stay in school despite his disabilities that necessitated that he have a catheter cleaning each day at school. Since a trained layperson can perform that procedure, it was determined to be a related service.

The case stands out as the court’s first attempt to define the distinction between “school health services” and “medical services.”

This was later similarly addressed in 1999 in Garrett F v. Cedar Rapids Community School District. The Court held that continuous nursing service is a “related service” that the school district is required to provide under the IDEA. The Court also noted that an IDEA dispute “is about whether meaningful access to the public schools will be assured”, thereby repeating the “meaningful access” standard originally articulated in Rowley.

1988-Honig v. Doe


SCOTUS ruled that a California school board had violated the Education for All Handicapped Children Act (later became the Individuals with Disabilities Education Act) when it indefinitely suspended a student for violent and disruptive behavior that was related to his disability. In addition, the court affirmed that the state must provide services directly to students with disabilities when local school boards fail to do so, and it further clarified “stay put.” Stay Put or Pendency, is the concept that a child stays put in their current placement while IEP disputes are resolved.

If you click that link, I further explain pendency. It can work for or against the child, depending on how satisfied the parent is with the current placement.

2005-Schaffer v. Weast


Ah, one of my favorites! (I’m being sarcastic.)
Supreme Court held that the burden of proof in a due process hearing that challenges an IEP is placed upon the party seeking relief. So, if a parent files for Due Process, then Burden of Proof is on the parent.

Some states have passed Burden of Proof legislation to put the burden on the LEA. Pennsylvania introduced legislation but it never went any place.

2006-Murphy v. Arlington School District
Supreme Court determined that parents who win in a Due Process hearing are NOT entitled to recover expert witness fees having to do with the claims established in Due Process.

Endrew Supreme Court Case

Here is the recent OSEP guidelines on Endrew.

SCOTUS-FAPE-Endrew-Q-and-A

So, there you go. Several really important cases. And that’s only 8. I could go on forever.

I haven’t even touched on private placement and reimbursement…and there have been several cases determining various outcomes regarding private placement at public expense.

There have been other cases on stay put, pendency, related services and discipline.

FAPE and IEPs

The final draft IEP that you receive after an IEP meeting is the school’s offer of FAPE.

People often ask me if I have a FAPE checklist or a list of FAPE requirements. No, because that would go against the spirit of IDEA, and the principle of FAPE being individualized.

IEP Waiver or FAPE Waiver

Now that I’ve discussed FAPE and its origins, sometimes a situation erupts where a parent is asked to waive FAPE.

“My district wants me to sign away FAPE! Why would I do that?!?!”

I often get emails and messages with this question and quite often the moms are in a panic. I get it–I mean, after all, you fought so long and hard for your child to receive FAPE, why in the world would we sign away our rights and relinquish FAPE?

First, deep breaths. This is actually pretty common, let me explain. There are a few scenarios in which a parent would sign away their child’s rights to FAPE.

Offer of FAPE

There are a few reasons why you would sign away your child’s right to FAPE. First, understand that you are not agreeing that your child is not going to receive an appropriate education. But you are in a circumstance where the public district no longer is involved in your child’s IEP process, therefore they do not want to be held responsible for something over which they have no control.

School District Settlement Agreements: A school district settlement agreement usually occurs as a result of Due Process. One party filed for Due Process, but you came to “settle” it outside of actually going to Due Process. Around here, it usually is a result of a parent wanting a child to be placed in a private school that is not an APS and it usually is the district agreeing to pay a sum of money, rather than as a team placement decision.

(Settlement agreements also almost always come with a gag order, so the only info I can base this on is cases I have had or that my close friends have had.)

But, the family gets the tuition money that they desire, so usually, they take it. Now, you are agreeing to take this sum of money and “walk away” so to speak from the district and attend this private school. What you are agreeing to is that you are confident that your child will receive the needed education at this private school and that your public school will no longer play a role in their education. Thus, you cannot come back in X number of years and sue them for compensatory education or claim that they did not receive FAPE.

Vouchers/Tuition Programs: Some states offer state-specific programs where a family can receive a check or a voucher for a child with an IEP. This check is to cover or help cover the costs of a private school tuition. Again, if the district has no say in the IEP or the child’s education, they do not want to be held responsible for FAPE.

Homeschooling: Homeschooling is much more popular now than ever before. And, sure, many kids who are homeschooled would likely qualify for an IEP, or were on an IEP before the parent pulled them out to homeschool them. Reasons are the same as above–school has no say, the school wants no responsibility.

Before you Waive FAPE

So as you can see, it’s not as shocking as it seems. It’s why these decisions we make about our kids are so serious. Any placement decision must be weighed and viewed from all angles. But when you receive a contract like this, there is no need to be shocked if it’s an appropriate situation for signing away FAPE.

Keep in mind though, yes, you are signing away FAPE. Before you enter into a settlement agreement or accept any type of voucher program, double and triple check every detail. There will not be any recourse for you a few years down the road. No going to Due Process and asking for comp ed if your child’s needs are not met.

You are acknowledging and agreeing that your school district is no longer responsible for your child’s FAPE, and that is a big deal. Yes, there are circumstances when it’s done, but it’s still a big deal. Proceed carefully.

Your child’s educational rights include the Right to FAPE.

I strongly recommend that if you did not use an attorney for your Due Process, that you pay one to read your School District Settlement Agreement.

So for those of you who say “I thought this was an education blog, not political!” I say, “It is both. Because the two are never separated, unfortunately.” And never have been.

**This is not intended as legal advice. Please seek legal counsel before signing any contracts with your school district. Even if you think you cannot afford an attorney, many will read and review a contract for you for less money than becoming a full client.

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