Every Child’s Right to a Free Appropriate Public Education: The Basics

We are all no more than two degrees of separation from a child with a disability. If your own child or family member is not challenged in this way, you most assuredly know a friend, a neighbor or a colleague with a child who has a developmental delay, a physical handicap, a genetic disorder or an emotional disability.

And how – as counsel, friend, acquaintance – do you respond when you are asked legal questions about the education of that challenged child?

First and foremost, treat the family with kindness and consideration. Fortunately, positive changes in society, medicine and neuroscience have reduced the stigma and secrecy that used to plague families and children with “differences.” Nevertheless, the family has found itself on a lifelong journey full of unexpected challenges. They are likely sad, possibly angry, and they may feel helpless. They may want to blame someone or something for the disability and for the child’s difficulties in learning even the basics. Since all children, abled or disabled, have a right to education in this country, these emotions sometimes lead to strained relations with educators and school districts.

Special education is currently governed by the 2004 Individuals with Disabilities Education Improvement Act (IDEA). The statute can be found at 20 U.S.C. § 1400, et seq., and Federal Regulations Volume 34 CFR § 300, et seq. These govern how each state must educate the disabled: The education code of each state must comport with the federal laws. Additionally, the application of IDEA is subject to significant case law interpreting the codes.

What does this mean to the family that is talking to you? What does federal education law provide? Here is a quick overview.

Under IDEA, a student with disabilities has a right to a Free Appropriate Public Education (FAPE). The purpose of IDEA is stated at 20 U.S.C. 1400 (d)(1)(A):

[The purpose is] to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; (emphasis added)

Under IDEA, educational services providing a “free appropriate public education” (FAPE) begin at age three and run through age 21.[1] (Exception: once a student receives a high school diploma—the alternative is a “certificate of completion” —the student is no longer eligible for educational services under IDEA.)

So how does a family know if their child has a right to a FAPE under federal law? Many families know if something is different about their child before the child’s third birthday. But some disabilities are subtle, and some don’t manifest until later. No matter what, families have a right, under “Child Find,” to have the child assessed by the student’s local school district for identification of possible disabilities.

According to 20 U.S.C. §1412(a)(3) and 34 CFR §300.111, states are mandated to locate, identify and evaluate all children with disabilities from birth through age 21, and are held responsible to assess children for not only visible disability, but for those which are not apparent through general observation. “Child Find” applies to all children who reside within a state, including children who attend private schools, those children whose living circumstances make them highly mobile, homeless children, migrant children, and wards of the state. If an educator suspects a possible disability, the educator must notify the school district. If a parent, guardian or interested individual notifies a child’s school district of a suspected disability and/or asks for an assessment, the district must assess for all suspected disabilities.

If a child is identified as having one or more disabilities that falls within the ambit of IDEA, then what?

If the child is enrolled in public school, the next step is an Individualized Education Plan (IEP) team meeting. The team consists of the school district representatives (school administrators, program specialists, general education teachers, special education teachers, intervention specialists and/or school psychologists, etc.) and family representatives (parents, guardians, private therapists and/or child-advocates/attorneys, etc.). The purpose is to build a plan that provides appropriate supports, classes, technology and accommodations, along with agreed-to measurable educational and social goals to be achieved. (IEP meetings are required to be held once a year but families have a right to request them more often.)

Subsequently, the district must develop an offer of FAPE (i.e., how the district will support the child and the child’s disabilities in the Least Restrictive Environment (LRE)). LRE requires that students with disabilities receive an education to the maximum extent appropriate. This includes social integration, including classes with nondisabled peers. The right to LRE ensures that disabled students are not removed from regular classes unless education in regular education classes cannot be achieved, even with supplemental aids and services. (20 U.S.C. §1412(a)(5)(A) and CFR §300.114)

If the child is enrolled in a private school by the parents’ choice, the process is similar, and the result is an Individualized Service Plan (ISP). This may include some supports and services through the district but does not include the tuition for private education.

It is the IEP/ISP process that often causes the friction between families and school districts. Families usually want what is “best” for their child. But the law only requires what is “appropriate.” (One of the first things to do when working with families with special needs students is to remove “best” and “ideal” from their vocabulary. These words will often be met with dismissiveness and sometimes anger from the school side of the team.) What goals and supports are “appropriate” is typically the sticking point. Families typically want ambitious goals and maximum support and accommodations (including often, non-public school placement). The school district part of the team is subject to constraints of budget, what is available in the particular district, and often believes it knows the student better than the family.

Families have the right to bring counsel to IEP meeting (with notice) if they think that districts are failing to provide FAPE. If they do, the district will usually also bring counsel. Sometimes this can facilitate an agreement, but sometimes it results in a hardening of positions. If agreement for FAPE cannot be reached, the family can request mediation or file a Due Process claim. But this, again, ups the stakes for both sides. Families are entitled to attorney’s fees only if they prevail at Due Process, and fees are subject to limitations. Challenging a district can be an expensive process. Decisions can be appealed to Federal District Court by either side, and cases have made it all the way to the United States Supreme Court.

I personally believe in counseling families to attempt to build bridges, rather than burn them, when possible. Remember that families and districts may be working together for many years, long after the initial “combatants” have withdrawn. Therefore, I initially approach my district counterparts with questions instead of demands. School districts are not monoliths; they are made up of a variety of people—mostly well-intentioned—with observations, opinions and constraints of their own. It is often advantageous to seek out reasonable, insightful educators who will listen to parents and child advocates, and who will then offer up pertinent strategies and helpful services. That said, there are times when confrontation, intransigence and/or escalation is essential when a child’s needs are not being met.

I recommend that families obtain written resources to gain a basic understanding of the law. Three good books are Special Education Law and From Emotions to Advocacy, both published by Wrightslaw (wrightslaw.com) and the Special Education Rights and Responsibilities Handbook (SERR) from the Community Alliance for Special Education (CASE) (caseadvocacy.org).

Children, families, and society are well-served when special needs students are educated and helped to achieve their maximum potential. Parents should be aware that they are not alone in this pursuit. Educators, advocates and therapists also have a role to play, all supported by the framework of IDEA, state laws, education codes, and, hopefully, collaboration.

[1] The Program for Infants and Toddlers with Disabilities (Part C of IDEA) is a federal grant program that assists states in operating a comprehensive statewide program of early intervention services for infants and toddlers with disabilities, ages birth through age 2 years, and their families.