FAPE Standards: Determining When An IEP Is Adequate Under the IDEA Statute

In cases under the Individuals With Disabilities Education Act (IDEA, 20 USD §§ 1400-1491), courts must wrestle with the difficult issue of determining when an individualized educational program (IEP) meets the command of the statute. How, exactly, does a court know when a program properly serves a disabled student’s needs and accords the person a “free and appropriate public education?”

In J.L. v. Mercer Island School District, the Ninth Circuit provided some guidance. Quoting first from the seminal IDEA decision (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176 (1982)), the court noted that “Congress was rather sketchy in establishing substantive requirements.” The Rowley decision, issued by the U.S. Supreme Court in 1982, states that local districts must provide a “basic floor of opportunity” to disabled students; they are not required to offer a “potential maximizing education.” (458 U.S. at 197 n. 21, 200.) Under Rowley, local school districts must “confer some education benefit upon the handicapped child.” (458 U.S. at 206.) The standard established by the Rowley case has come to be known commonly as the “educational benefit” rule. The Ninth Circuit then stated in its Mercer Island decision: “To assist courts in this labyrinth of experts, educational policy and charged emotions, the [U.S. Supreme] Court established a two-part test to determine whether a state has provided a free appropriate public education . . . . First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? ” (See Rowley, 458 U.S. at 206-207.) A key question in the Mercer Island case was whether the standard announced in the Rowley case was superseded by subsequent amendments to the IDEA statute. The Ninth Circuit answered this question in the negative: the “educational benefit” rule established by the Rowley case still stands, said the court. There are other important aspects to the Mercer Island ruling. First, the Ninth Circuit held that parents challenging IEP’s in court must have participated in the administrative procedures required under the IDEA statute; if, for example, parents ask a court to rule that “transition services” were not provided in an IEP, they must have first raised that issue during the pre-litigation “give and take” procedures designed to work out the parameters of the IEP in dispute. If that is not done, the district court will not have subject matter jurisdiction of the claim. The Ninth Circuit also noted that in creating IEPs, school districts do not necessarily have to specify which particular teaching methodologies will be utilized. Although teaching methods should be specified for some students, that is not the rule for every case; IEPs do not always have to set forth the instructional methods to be used because specificity about methodology is not necessary to enable students to receive an appropriate education. The court further held that if the district fails to detail the specific minutes that certain services will be provided to a disabled student, that failure does not necessarily deny a FAPE. “A procedural violation denies a free appropriate public education if it results in the loss of an educational opportunity, seriously infringes the parents’ opportunity to participate in the IEP formulation process or causes a deprivation of educational benefits.” The plaintiff must show prejudice – that the student was denied an educational benefit or missed an educational opportunity -- in order to prevail. It should also be noted that the court observed in a footnote that IEP disputes often result in a “battle of the experts.” In such cases, said the court, “The District is entitled to deference in deciding what programming is appropriate as a matter of educational policy.”

A copy of the court’s opinion is attached.