Not a bad idea: the increasing need to clarify free appropriate public education provisions under the Individuals with Disabilities Education Act.

Author:Beatty, Michele L.

"[I]t is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education." (1)

  1. Introduction

    The Supreme Court has long stressed the importance of providing equal education opportunities to children. (2) Additionally, the Court has emphasized that the Due Process Clause prohibits school personnel from removing a student for violating its code of conduct "absent fundamentally fair procedures to determine whether the misconduct has occurred." (3) The rights of disabled children to receive an equal education, including fundamental procedural-due-process rights, have developed considerably in the past three decades. (4)

    Efforts to ensure disabled students receive the same opportunities as their nondisabled peers are reflected in both federal and state laws. (5) The first congressional breakthrough occurred with the passage of the Education for All Handicapped Children Act of 1975 (EHA). (6) Over time, amendments improving the EHA were made, and it is now better known as the Individuals with Disabilities Education Act (IDEA). (7)

    The central tenet of the IDEA mandates a "free appropriate public education" (FAPE) for students with disabilities. (8) Under its provisions, the IDEA sets forth both procedural and substantive mandates regarding the rights of both children and parents to receive an individualized education program (IEP), as well as a process for challenging placement changes. (9) While the IDEA is intended to protect disabled students' rights not to be excluded or denied from the benefits of a public education, the litigious nature of its unclear provisions--and lack of Supreme Court guidance--has created continuous controversy. (10) The most notable and frequent disputes arise over two issues: the statute's procedural safeguards, and what constitutes an "appropriate" education. (11) Recently, the Supreme Court declined the opportunity to clarify and resolve both major issues by denying certiorari to Doe ex rel. Doe v. Todd County School District. (12)

    This Note argues that in Todd County, the Eighth Circuit erred by holding that disabled students are limited to procedural-due-process rights under the IDEA when they are placed in an alternative setting during a disciplinary suspension. (13) Specifically, by limiting disabled students who seek to challenge a suspension that triggered an interim placement change to the safeguards under the IDEA, the result contradictorily affects their fundamental procedural-due-process rights and guaranteed right to a FAPE. (14) Part II.A of this Note explores the historical development of special education, focusing on the IDEA and its evolution. (15) Part II.B discusses FAPE, as well as the various standards that have been developed to attempt to determine what is an "appropriate" education. (16) Part II.C explores student due-process rights, primarily by looking at those contained in the IDEA and their connection to FAPE, and also provides an overview of the Eighth Circuit's decision in Todd County. (17)

    Part III analyzes the potential underlying impact of the Eighth Circuit's decision, focusing on how inadequate procedural safeguards correlate to a negative impact on an "appropriate" education. (18) Part III.A analyzes the Eighth Circuit's decision--specifically, whether it incorrectly determined that Doe's procedural-due-process rights were limited to those under the IDEA. (19) Further, Part III.B analyzes the implications of that decision on FAPE. (20) Part III.C highlights the repercussions of the Eighth Circuit's holding, and exposes how the court could have used this case to provide more comprehensive, coherent procedural-due-process rights to students, while simultaneously setting forth a less ambiguous definition of what constitutes an "appropriate" education. (21) Lastly, Part IV concludes by urging the Supreme Court to intervene and resolve these recurring issues by correcting the Eighth Circuit's limitation on procedural-due-process rights and providing a heightened, unambiguous FAPE standard. (22)


    1. Development of Special Education Law

      1. Pre-IDEA

        The right to a free public education is not constitutionally guaranteed; rather, it is derived from both evolving case law and state statutes. (23) Important educational victories, such as the landmark decision in Brown v. Board of Education, have carved out the states' responsibility to provide equal education for all students. (24) The evolution of special-education law, however, is considered a relatively new concept. (25) Although the development of special-education legislation has given rise to a federal mandate that provides a free public education and procedural safeguards for disabled students, ambiguity surrounding its terms remains a central, litigious issue. (26)

      2. Congressional Intent and Evolution of the IDEA

        1. The Education for All Handicapped Children Act of 1975

          While states are at liberty to grant and execute special education by creating their own public policies, the federal government requires states to comply with the provisions set forth in the IDEA in order to receive federal funding. (27) Currently, all fifty states receive federal IDEA funding, therefore binding them to the statute's conditions. (28) The legislative mission to ensure that children with disabilities receive equal education opportunities has been shaped over the years by the changing way society views its responsibility to provide educational opportunities to children. (29) As a result, congressional directives have developed substantially over the course of the last three decades to dramatically shift disabled children's access to the benefits of a public education. (30)

          This commitment is first reflected in the enactment of the EHA. (31) Congress enacted the EHA to address the issue that many students requiring special education at the time were neglected--or even completely excluded--from any form of public education. (32) A major step for communities was taken under the EHA; they were held responsible--for the first time--for educating disabled children in the same way as their nondisabled peers. (33) The EHA thus provided the foundation for today's special-education legislation by mandating that children with disabilities receive FAPE within the Least Restrictive Environment (LRE). (34) Congress also included procedural safeguard provisions within the EHA, as well as a requirement that school officials and parents jointly develop an IEP. (35)

        2. The Individuals with Disabilities Education Act

          The EHA was subsequently amended and strengthened, and is now better known as the IDEA. (36) The amendments reflect an increasingly proactive mission towards raising the educational standard for disabled students. (37) The IDEA's substantial evolution is evidenced in many of its provisions, including requirements for procedural due process and FAPE within the LRE. (38) The central purpose of the statute remains to ensure a free appropriate public education be provided, and is now designed to prepare disabled children for further education, employment, and independent living. (39) The IDEA requires that this education be tailored to the student's unique needs by means of an IEP, a process that requires collaboration between schools and parents to create a tailored educational plan. (40) Despite the inclusion of precise definitions for many lexical terms frequently used within its provisions, the IDEA fails to adequately define what is an "appropriate" education. (41)

          In conjunction with the controversy surrounding the term "appropriate" within the meaning of FAPE, procedural safeguards under the IDEA have given rise to frequent litigation. (42) With regard to student due process, schools are prohibited from suspending a student "absent fundamentally fair procedures to determine whether the misconduct has occurred." (43) The IDEA entitles a disabled student to receive an "appropriate" education while a suspension hearing is pending. (44) Even when misconduct is found to have occurred, the IDEA gives disabled students the right to receive a FAPE during a long-term suspension or expulsion. (45)

          In formulating and further developing the IDEA, the legislature was aware of the adversarial process building over time, in regard to both whether children were receiving an appropriate education, and the costly litigation accompanying student hearings. (46) Despite this awareness, disagreements continue to arise between school boards and parents in determining the best environment for achieving FAPE. (47) The Supreme Court has not addressed the issue of appropriateness since its decision in Board of Education v. Rowley. (48)

    2. Judicial Interpretation of an "Appropriate" Education

      1. An Attempt to Define FAPE: The Rowley Standard

        In 1982, the Supreme Court set forth the initial interpretation of FAPE in its landmark Rowley decision. (49) The primary issue in the case focused on whether the local school district was required to provide Rowley, a deaf first-grade student, with a sign-language interpreter in order to provide her with FAPE. (50) The district court found that although Rowley performed well in school, an interpreter would allow her to reach full academic potential. (51)

        The Supreme Court disagreed. (52) It interpreted the IDEA as an attempt to make public education available to disabled students, not as requiring schools to meet a greater substantive educational standard to make such access meaningful. (53) Rejecting the higher standard of providing a commensurate opportunity, the Court determined FAPE to be met when sufficient personalized instruction allowed "some educational benefit." (54)

        The Rowley decision ultimately set forth a two-prong test to determine whether FAPE has been met. (55) The holding specified that states must first comply with all procedural requirements of the IDEA, such as creating an IEP in conformity with the Act's provisions...

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