Saturday, January 22, 2011
Can There Be a Middle Ground on the FAPE Standard?
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One of the main guarantees of the special education law, IDEA, is that a child with a disability is entitled to a free and appropriate public education, or "FAPE."
IDEA is overdue for reauthorization, which includes the opportunity to amend the law. In the seminal special education ruling, the U. S. Supreme Court in Bd. of Educ, etc. v. Rowley, 458 U.S. 178, 102 S. Ct. 3034, 553 IDELR 656 (1982) established a two-part test for determining whether a school district has provided a free and appropriate public education to a student with a disability. There must be a determination as to whether the schools have complied with the procedural safeguards as set forth in IDEA and an analysis of whether the Individualized Educational Plan (or "IEP") is reasonably calculated to enable a child to receive some educational benefit. A school district is not required to maximize the potential of a student or guarantee his success.
School district lawyers generally say that the standard means that the child is entitled to a serviceable Chevy, not a Cadillac.
That was in 1982. Since then many commentators, and one U.S. District Court, have questioned whether the bar for FAPE should be higher.
Unfortunately, though, most of the debate has been whether the standard should be "some benefit" or potential-maximizing. There has been no middle ground. Sometimes compromise can be a good thing, or at least that's what Henry Clay said.
So can there be a compromise on FAPE. Can we create a standard that is more than some benefit, yet not as high as potential maximizing? So it would be not a starter Chevy or the top of the line Caddy, lets say a Chevy Tahoe?
What do you think is there a middle ground? Let me know.
By the way, I continue to be interested in your suggestions for changing IDEA. Remember I am collecting them. Thanks.