Saturday, October 22, 2011

Is FAPE Under § 504 FAPE Lite?

An attempt at a discrimination graphic.Image via Wikipedia
Regular readers will remember a previous post in which I referred to special education and FAPE under § 504 as the redheaded stepchild of IDEA.  This, of course, lead to subsequent apologies to both stepchildren and redheads...

But I digress.  Most special education stakeholders tend to think of the right to FAPE under §504 as providing less protection than the right to FAPE under IDEA.  Once again, we use the same term or acronym in multiple ways. Some even accuse lawyers of intentionally employing this practice for purposes of job security.  I believe, however, that the reason is less sinister.  We're too lazy to make a new word or acronym when we have a similar one already.  The confusion and head-shaking is merely an unintended consequence.

In most cases § 504 does provide less protection that IDEA.  § 504 is a non-discrimination statute.  The federal regulations under that statute require that educational services for disabled children meet their needs as well as the needs of non-disabled children are met.34 C.F.R. §104.33.

This brings me to an argument made by Professor Mark Weber, my friend and a great friend of this blog.  Mark is one of the big idea guys in special education.  He wrote last year in an article published in the Texas Journal of Civil Liberties and Civil Rights, (Vol. 16, No. 1  Fall 2010) p.  1 - 28, that for poorer and lower achieving schools, the IDEA standard of FAPE is higher.  For the more wealthy, suburban school districts where children without disabilities do very well, perhaps the § 504 FAPE comparative standard requires even more than IDEA FAPE.

This is an intriguing argument.  It makes sense as an academic application of the legal principles.  As I have discussed with Mark, however, it is a tough argument from a public policy standpoint.  Can it really be argued, especially given the current economic climate, that rich kids with disabilities are entitled to more than their poorer counterparts?  I cannot imagine a court ever saying that out loud.  

What do you think of this argument? Is the FAPE standard under § 504 variable?




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10 comments:

  1. While the courts may never say it aloud, it's clear that the policy will be skewed in that direction. Let us face it, most policy decisions are geared towards those with the most, not those with less. The lack of free healthcare is a prime example. investing real estate

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  2. Roger,

    Thanks for the comment.

    Jim

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  4. Unfortunately the only place in IDEA that uses the word "maximize" is LRE. Other than that, the expectation is clearly delineated by law and case that there only be some education benefit derive from the program (IEP). It could therefore be argued that the SPED children in wealthy suburban school districts would have a lower standard in order to meet the requirements for FAPE because the quality and quantity of their instruction, materials and facilities, not to mention lunches and lunchrooms, are already so much better.

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  5. Paul, Esq

    Thanks for the comment.

    JG

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