







































Education, Language and Sociology Research 
ISSN 2690-3644 (Print) ISSN 2690-3652 (Online) 

Vol. 2, No. 1, 2021 
www.scholink.org/ojs/index.php/elsr 

Original Paper 

Children with Disabilities and Equity in Education: Connecting 

Standards and Practice to Law and Ethics 
Kimberly J. Barcelona1* 

1 New London County, CT Public Education, Connecticut Public School Educator, Nigeria 
* Kimberly J. Barcelona, New London County, CT Public Education, Connecticut Public School 

Educator, Nigeria 

 

Received: November 29, 2020  Accepted: December 21, 2020 Online Published: January 4, 2021 

doi:10.22158/elsr.v2n1p57      URL: http://dx.doi.org/10.22158/elsr.v2n1p57 

 

Abstract 

Some of the most controversial education policy concerns and methods of practice have been over 

Special Education. Students between the ages three to twenty-one with disabilities compromise 13% of 

student enrollment between prekindergarten and twelfth grade (U.S. Department of Education, 

National Center for Education Statistics, 2013) (Appendix A, Table 1,2,3). From the late eighteenth 

century to current times, the legal system and court case outcomes have played a major role in the 

development of public education in America. The Supreme Court’s 1954 ruling in Brown v. Board of 

Education not only ruled racial segregation as unconstitutional, but became a landmark case that 

opened the doors for court involvement in refining educational policy concerning Special Education. 

Standards of practice, which have evolved through the years, began to take form to support educational 

leaders in how they approached adhering to laws and policy concerning the education of students 

identified as special needs learners. Chief Justice Earl Warren who spoke for the Supreme Court of the 

United States in Brown v. Board of Education (1954), stated:  

In these days, it is doubtful that any child may reasonably be expected to succeed in life 

if he is denied the opportunity of an education. Such an opportunity, where the state 

has undertaken to provide it, is a right which must be made available to all on equal 

terms (Brown v. Bd. of Educ., 347 U.S. 483, 1954). 

This case dispelled the notion that education could be offered to any group under the premise of 

separate but equal that had earlier been established in Plessy v. Ferguson (1896). Plessy v. Ferguson 

(1896) is a landmark United States Supreme Court decision in the jurisprudence of the United States, 

upholding the constitutionality of state laws requiring racial segregation in public facilities under the 

doctrine of “separate but equal” (Maidment, 1973). 

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Keywords 

educational policy, special education, educational law, Brown v. board of education, the Individuals 

with Disabilities Education Act (IDEA), Free and Public Education (FAPE) 

  

1. Introduction 

The most important right given to students-with-disabilities is the right to a Free Appropriate Public 

Education (FAPE). Under The Individuals with Disabilities Education Act (IDEA), a FAPE is not just a 

privilege given to eligible students at the convenience of school districts but rather a right that must be 

made available to all eligible students. According to IDEA, a FAPE is “special education and related 

services” that (a) are provided at public expense, under public supervision and direction, and without 

charge, and (b) meet standards of the state educational agency, that includes appropriate education in 

preschool, elementary, and secondary school levels and are delivered in conformity with the child’s IEP 

(20 U.S.C. §1401(9). Since the definition of FAPE does not clearly define all levels of educational 

quality, there has been conflicting interpretations. This has escalated problems and caused court cases 

to surface that address the rights of families and students to a fair and equitable education.  

 

2. Method 

Educational law review documents not only clarify what policies shape the role of education; but also 

present the history of the current rules, assess the status quo, and present reform proposals. To make 

theoretical arguments more plausible, legal practitioners apply outcomes of past cases, refer to statutes, 

review political debates, and examine related sources. Legal scholars highlight examples 

unsystematically and explore them armed with only the tools for doctrinal analysis. Unsystematic 

examples can better develop plausible theories; however, rarely suffice to convince the public that these 

theories are true, especially when plausible alternative explanations exist. This project presents 

methodological insights from multiple social science disciplines and from history that could strengthen 

legal scholarship by improving research design, case selection, and case analysis. Qualitative techniques 

are utilized that are scarcely found in law review writing; such as, process tracing, theoretically informed 

sampling, and related case design. (Table 1) 

The 1954 Supreme Court decision in Brown v. Board of Education had declared state laws, establishing 

separate public schools for black and white students, unconstitutional and the notion of “separate but 

equal” became unacceptable thought. This movement forward in education was important for students 

with disabilities, because the concept of equal opportunity was applicable to them, as well as to minority 

students (Brown v. Bd. of Educ., 347 U.S. 483, 493, 1954). Brown v. Board of Education was based on 

the Fourteenth Amendment’s Equal Protection and Due Process clauses and not just the “right” to 

education. With this action by the courts, there was increased legislation and litigation that dealt with the 

allocation of authority over educational decision-making. Courts have become more actively involved in 

aspects of education that were once left entirely to the discretion of school administrators and school 
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boards. Teachers’, students’, and parents’ rights have been asserted in legal actions against school 

authority producing a vastly expanded field of judicial precedents which have had a huge impact on 

American education.  

In 1982, the U.S. Supreme Court provided a definitive interpretation of the statutory language. Its 

decision remains the Court’s most important pronouncement on the IDEA, and its interpretation has 

been the binding precedent for all FAPE cases in all the courts in the country. Several cases heard in the 

U.S. Supreme Court gave clarity to FAPE. One such case is McEuen v. Missouri State Board of 

Education (2003) that defines the FAPE as not requiring the school district to maximize a student’s 

capabilities, but to provide a free appropriate public education consistent with the provisions set forth 

in state and federal regulations implementing IDEA McEuen v. Mo. Bd. of Educ. 120 S.W.3d 207, 209, 

Mo. 2003). There has been a many cases, mimicking McEuen v. Missouri State Board of Education, 

litigated under the IDEA in an attempt to answer the questions about what is required of schools in 

providing special education. Many questions remain unanswered, and expanding statutory, regulatory, 

and judicial law continues to bring up new questions. As the increase of cases was brought to the U.S. 

Supreme Court amendments were made to IDEA in order to define the remedy for failure to develop a 

reasonable IEP for a student to enable him to receive a meaningful education (Larson v. Independent 

Sch. Dist. No. 361, 2004). An individualized education program for each eligible student with a 

disability is the heart of the IDEA. It is the primary tool for individualizing services for each eligible 

student, and it establishes resources on behalf of the student. It is the key mechanism for gaining 

participation by parents in the development of the student’s specially designed instruction and provides 

an important opportunity for solving disagreements between home and school. Additionally, it provides 

a means both to monitor the delivery of special education and to evaluate its effectiveness (Individuals 

with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.; 34 C.F.R. §§ 300 et seq.). In order to assure 

that students are given a FAPE it is important for school systems to develop appropriate IEP’s that 

clearly meets the need of the individual student. 

The evolution of the role of the courts in education began between 1789 and 1850 when the federal and 

state courts ignored education. Courts were rarely called to intervene in school matters. State control of 

education grew stronger from approximately1850 to 1950 with state courts asserting that education was 

only a state and local issue. This focus at the state level created case law that, in theory, would contradict 

federal constitutional standards and requirements. During that time, however, federal courts were only 

willing to question the validity of state statutes under the U.S. Constitution and ignored the idea that 

cases involving schools could be brought to court based on an infringement of individual rights. Next the 

reformation stage began in the 1950s with Brown v. Board of Education and continues today (Janto and 

Harrison-Cox, 1992). The federal Court recognized the failure of state education laws to meet 

individual’s constitutional rights and began to issue decisions that offered constitutional guidance for 

educational institutions (Brown v. Board of Educ., 347 U.S. 483, 1954).  

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In 1919 in State ex. Rel. Beattie v. Board of Education, the Wisconsin Supreme Court refused to admit a 

student with cerebral palsy to a public school. The court judged the condition to be “repulsive” to the 

other children and disturbing to the teachers. The Supreme Court of Wisconsin upheld the exclusion of a 

student with a paralysis. The student had normal intelligence, but his condition caused him to drool and 

make facial contortions. The student attended public schools through grade five but was excluded 

thereafter, since school officials claimed that his physical appearance nauseated teachers and other 

students. Sec. 13-1375 relieves the State Board of Education from any obligation to educate a child 

whom a public school psychologist certifies as uneducable and untrainable. The burden of caring for 

such a child then shifts to the Department of Welfare which has no obligation to provide any 

educational services for the child. School officials recommended that he attend a day school for students 

with hearing impairments and defective speech, but he refused and was supported by his parents (State ex 

rel. Beattie v. Board of Ed. of Antigo, 169 Wis. 231, 232, 172 N. W. 153, 1919). During this time the 

courts frequently sanctioned the exclusion of students. Another court case bringing to light the issues 

surrounding the appropriate education of a student with special need is the Board of Education of 

Cleveland Heights v. State ex rel. Goldman (1943). In this situation a child with an IQ below 50 was 

excluded from a school in Ohio. Again, the court of appeals ruled that such exclusion was acceptable for 

children deemed idiot or imbecile. In 1958 the Supreme Court of Illinois, in Department of Public 

Welfare v. Haas, ruled that the state’s compulsory attendance legislation did not require the state to 

provide a free education for the “feeble minded” or to children who were “mentally deficient”. During 

this time each court case did not breeched the issue of what was considered a free appropriate public 

education and there was little attention given to establishing a clear and defined set of rules that gave 

guidance to the education of the disabled. As late as 1969, a North Carolina statute remained on the books 

allowing the state to label a child “uneducable” and made it a crime for parents to challenge the decision. 

Between the late 1950s and early 1970s the federal government became involved in securing the right to 

a public education for students with disabilities. In 1958 Congress passed Grants for Teaching in the 

Education of Handicapped Children (P.L. 85-926) which awarded grants to institutions of higher learning 

to assist them in providing training for teachers related to the teaching of the mentally retarded. One 

million dollars was allocated for ten fiscal years to accomplish this training. In 1961 the legislation 

expanded to include funds for the education of teachers for the deaf and hard of hearing as well (P. L. 

89-10). The Elementary and Secondary Education Act passed by Congress in 1965 attempted to 

compensate for the neglect of students with disabilities by allocating federal money to the states and 

giving states control over the education programs for students with disabilities. This law created the 

Bureau of Education for the Handicapped to administer all federal programs designed for children with 

disabilities. During the next four years, Congress amended the act three times to provide for testing, 

experimental preschool programs for children with disabilities. In 1970 this legislation was replaced by 

the Education of the Handicapped Act, which added more money to the programs and expanded 

available services (P.L. 91-230). 
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Public Law 93-380 passed in 1974 included amendments that changed the Elementary and Secondary 

Act to the Education of the Handicapped Act Amendments of 1974. The Education Amendments of 

1974 (Public Law 93-380) provided for the consolidation of certain education programs and established 

the National Center for Education Statistics (NCES). It also established two laws: The Education of the 

Handicapped Amendments of 1974 and the Family Education Rights and Privacy Act (FERPA), which 

gave parents and students over 18 the right to view student’s personal school files. In addition it 

amended the Bilingual Act and the Equal Education Act. Its new mandates included the following:  

•States were required to develop timelines for offering full educational opportunities to all children with 

disabilities.  

•Mainstreaming children with disabilities to the extent possible.  

•Procedural safeguards were to be put into practice. 

Each amendment supported the goal in providing all students with the right to a FAPE and federal 

policies and regulations continued to take shape and gain clarity. 

Despite a school district’s good faith effort to provide appropriate programs and related services for 

students with disabilities, litigation continued to increase, impacting upon an expanding interpretation of 

FAPE. Courts had now increased their overall supervision of education. The Individuals with Disabilities 

Act (IDEA), 20 U.S.C. §§1400 et seq., provides federal funds to assist the states in assuring that each 

child with a disability receive a free appropriate public education (FAPE). The current history of IDEA 

began in 1975 with the passage of the Education for All Handicapped Children Act of 1975 (P.L. 94-142). 

Although the Act has been amended several times to add provisions relating to the education of infants 

and toddlers (P.L. 99-457), attorneys’ fees (P.L.99-373) and its name was changed to Individuals with 

Disabilities Education Act in 1990 (P.L. 101-476), the first comprehensive revision of IDEA occurred in 

1997 with the passage of the 1997 IDEA Amendments (P.L.105-17). 

Two court cases giving children with disabilities the right to a public education moved Congress into 

further action. In 1971, in the case of Pennsylvania Association for Retarded Citizens (PARC) v. 

Pennsylvania the parents of students with mental retardation filed a class action suit challenging a 

Pennsylvania law that excluded the students from public schools. 

The following year, parents of students with disabilities in Washington D.C. challenged the exclusion of 

their children from public education. Mills v. Board of Education (1972) involved a broader range of 

students than did PARC (1971), including those with behavioral problems, emotional disturbance, and 

hyperactivity. Seven students brought about this suit after being excluded from the District of Columbia’s 

public school system without due process of the law (Minow, 2004). 

As a result of the case, the federal court in the District of Columbia extended the right to a public 

education to all groups of students with disabilities. The court ruled that no child with a disability could 

be excluded from a regular school assignment unless that child was provided with adequate alternative 

educational services suited to the child’s needs. The court also ordered the District to provide due process 

safeguards. The court clearly outlined due process procedures for labeling, placement, and exclusion of 
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students with disabilities. The procedural safeguards included the following: (a) the right to a hearing 

with representation with an impartial hearing officer, (b) the right to an appeal, (c) the right to have access 

to records, and (d) the requirement of written notice at all stages of the process. These safeguards became 

the framework for the due process component of the Education of All Handicapped Children Act of 1975 

(Levine, 1975). This grant formula legislation encompassed most of the significant legal protections to 

be found in the Individuals with Disabilities Education Act (IDEA), which renamed it in 1990. A Free 

Appropriate Public Education (FAPE) was guaranteed to all children with disabilities and procedural 

safeguards for their families were strengthened. Federal dollars were made available to help states meet 

these increased legal requirements.  

Judicial rulings in Pennsylvania Association for Retarded Citizens (PARC) v. Pennsylvania (1971) and 

Mills v. Board of Education (1972) first recognized the rights of children with disabilities to a public 

school education (Kirp, 1973). During the pendency of the P.A.R.C. and Mills cases, federal legislators 

drafted the Education of the Handicapped Act (EHA) outlining the minimal requirements with which the 

States and D.C. must comply to receive federal assistance funds for providing education for handicapped 

students. The Education for All Handicapped Children Act (EAHCA) or Public Law 94-142 (1975), later 

renamed the Individuals with Disabilities Education Act (IDEA) (1990), furthered the rights of students 

with disabilities by guaranteeing a free and appropriate public education (FAPE) (Yell, Conroy, 

Katsiyannis, & Conroy, 2013). Since the enactment of P.L. 94-142, school districts, parents, advocates, 

hearing officers, and courts have struggled to define the standard for delivery of a free and appropriate 

public education to students with disabilities. One of the most frequently litigated issues in the area of 

special education is the appropriateness of a student’s education, and who is responsible for providing 

that education. The IDEA (1990) guarantees each student with a disability an appropriate public 

education, yet does not clearly define the term appropriate, nor does the IDEA provide sufficient 

guidance for compliance by educators. Courts vary on rulings identifying what are and are not sufficient 

offerings and accommodations for students with disabilities. Many school administrators struggle with 

the question of what services must be offered to students with disabilities, and what constitutes an 

appropriate education for a student with a disability (Learning Disabilities [legislation], 2001). 

In response to the need for clarity, Section 1401(a) (18) of the Individuals with Disabilities Education Act 

(1997) added a clear definition of FAPE by adding the following to the ruling:  

The term “free and appropriate public education” means special education and related 

services that (A) have been provided at public expense, under public supervision and 

direction, and without charge; (B) meet the standards of the State educational agency; 

(C) include an appropriate preschool, elementary, or secondary school education in the 

state involved; and (D) are provided in conformity with the individualized education 

program required under section 1414 (a) (5) of this title (Beatty, 2013). 

Judicial decisions since the enactment of P.L. 94-142 (1975) have increased concern about the rights of 

students with disabilities and the provisions of specific accommodations and services. The litigation 
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trend of recent years is of great concern to public school educators and to school districts. Hendrick 

Hudson Board of Education. v. Rowley, 458 U.S. 176 (1982) was the first Supreme Court case 

regarding special education set the standard for what is a “Free Appropriate Public Education” 

(Johnson, 2003). Amy Rowley was a deaf student attending Furnace Woods School in Hendrick Hudson 

Central School District in NY. Before her school attendance, her parents and the school administrators 

decided to put her in a regular class to determine what kind of supplemental services she would need. It 

was decided that Amy should remain in regular class, but would be provided with hearing aid. She 

completed kindergarten year without any difficulty. 

When she began her first grade, an IEP was prepared, saying that she should be in a regular class, receive 

hearing aid, instruction from a tutor for the deaf and a speech therapist. Her parents agreed, but also 

wanted a sign language interpreter in her classes. But during her kindergarten year, the sign language 

interpreter reported that she did not need his services after a two-week trial period. The school concluded 

that Amy did not need an interpreter during her first grade after considering testimony from people 

familiar with her academic progress. The Rowley party demanded a hearing before an independent 

examiner. The examiner also agreed that an interpreter was not necessary because Amy could do well 

academically and socially without assistance. The Rowley family brought the case to the district court, 

claiming that the denial of sign language interpreter was a violation of a “free appropriate public 

education” (Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192-194, 

199, 102 S.Ct. 3034, 3043-3045, 3047, 1982). The district court found that Amy could advance from 

grade to grade, but did not perform as well as she could if she were not deaf. Because of the difference 

between her performance and her potential, the court decided she did not receive a “free appropriate 

public education”, which they defined as an opportunity to achieve her full potential. The court of 

appeals also agreed with the district court. The court decisions determined that since both district court 

and court of appeals failed to provide evidence that the school violated the Act, or evidence that Amy’s 

educational program failed to comply with the requirement of the Act, the Supreme Court reversed and 

remanded the case. Decisions were based on the fact that the Supreme Court focused on the definition of 

a “free appropriate public education”. There was no requirement that the state had to maximize the 

potential of handicapped children. The specialized educational service for handicapped children did not 

mean that the service had to maximize each child’s potential since it was impossible to measure and 

compare their potential. 

From the history of the cases the Court decided, the intent of the Act was to give handicapped children 

access to public education. It did not guarantee any level of education for them. The ruling provided 

children with disabilities access to public schools that also provided a basic floor of opportunity. Not 

the best education but one where the child has passing grades in classes and is advancing to higher 

grades. 

It wasn’t until 1990 that IDEA further expanded the scope of federal regulations in the area of educating 

children with disabilities (Huefner, 2008). Federal funds were to be provided to states and districts for 
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educational programs for children with disabilities under the determined conditions set by IDEA. States 

were required to ensure that:  

•All children and youth with disabilities, regardless of the severity of their disability, will receive a Free 

Appropriate Public Education (FAPE) at public expense.  

•Education of children and youth with disabilities will be based on a complete and individual evaluation 

and assessment of the specific, unique needs of each child.  

•An Individualized Educational Program (IEP), or an Individualized Family Services Plan (IFSP), will be 

drawn up for every child or youth found eligible for special education or early intervention services, 

stating precisely what kinds of special education and related services or the types of early intervention 

services, each infant, toddler, preschooler, child, or youth will receive.  

•To the maximum extent appropriate, all children and youth with disabilities will be educated in the 

regular education environment.  

•Children and youth receiving special education have the right to receive the related services necessary to 

benefit from special education instruction. Related services include transportation and such 

developmental, corrective, and other supportive services as are required to assist a child with a disability 

to benefit from special education, and includes speech pathology and audiology, psychological services, 

physical and occupational therapy, recreation, including therapeutic recreation, early identification and 

assessment of disabilities in children, counseling services, including rehabilitation counseling, and 

medical services for diagnostic or evaluation purposes. The term also includes school health services, 

social work services in school, and parent counseling and training (C.F.R.: Title 34; Education; Part 

300.16, 1993, No. 96-1973).  

•Parents have the right to participate in every decision related to the identification, evaluation, and 

placement of their child or youth with a disability.  

•Parents must give consent for any initial evaluation, assessment, or placement, be notified of any change 

in placement that may occur and be included, along with teachers, in conferences and meetings held to 

draw up individualized programs.  

•Parents may challenge and appeal any decision related to the identification, evaluation, and placement 

of their child. Any issue concerning the provision of FAPE, for their child is protected by clearly 

spelled-out, extensive due process procedures. A “stay-put” provision requires that the child remain in 

the current placement until any challenge is ruled upon, including all appeals (20 U.S.C. §§ 1400 et seq. 

(2004) and 34 Part 300 (2006)).  

•Parents have the right to confidentiality of information. No one may see a child’s records unless the 

parents give their written permission. 

The Individuals with Disabilities Education Act is both a grants statute and a civil rights statute. It 

provides federal funding for the education of children with disabilities and requires, as a condition for the 

receipt of such funds, the provision of a Free Appropriate Public Education (FAPE). One of the major 

ways FAPE is ensured is by the creation and implementation of an Individualized Education Program 
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(IEP). The IEP is the blueprint for the education and related services that the Local Educational Agency 

(LEA) provides for a child with a disability, together with the goals, academic assessment procedures, 

and placement of the child. The statute also contains detailed due process requirements to ensure the 

provision of FAPE. Originally enacted in 1975, the act responded to increased awareness of the need to 

educate children with disabilities, and to judicial decisions requiring that states provide an education for 

children with disabilities if they provided an education for children without disabilities. However, the 

statute contains no specific provision relating to which party has the burden of proof in a due process 

hearing. Generally, when a statute is silent about the burden of proof, the burden is placed on the party 

initiating the proceeding. However, this is not an absolute rule and other factors such as policy 

considerations, convenience, and fairness may change the allocation of the burden of proof. 

In the 30 years since the special education law was enacted, the U. S. Supreme Court has only heard a 

few cases that directly involved special education cases. The most important ones that have changes 

legislation over time began with the Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley 

458 U.S. 176 (1982). This was the first decision in a special education case that defined the term “free 

appropriate public education.” Cases that followed included Burlington Sch. Committee v. Mass. Bd. of 

Ed., 471 U. S. 359 (1985), Honig v. Doe, 484 U.S. 305 (1988), Florence Co. School District Four v. 

Shannon Carter, 510 U.S. 7, (1993), Cedar Rapids v. Garret F. (1999), Schaeffer v. Weast (2005) and 

Forest Grove v. T.D., 129 S. Ct. 987 08-305, 109 LRP 13476 (2009). 

Burlington Sch. Committee v. Mass. Bd. of Ed., 471 U. S. 359 (1985) clarified procedural safeguards, 

parent role in educational decision-making and tuition reimbursement for private placement and a child’s 

placement during dispute about FAPE. The Education of the Handicapped Act (Act), 84 Stat. 175, as 

amended, 20 U.S.C. § 1401 et seq., requires participating state and local educational agencies “to assure 

that handicapped children and their parents or guardians are guaranteed procedural safeguards with 

respect to the provision of free appropriate public education” to such handicapped children. § 1415(a). 

These procedures include the right of the parents to participate in the development of an “individualized 

education program” (IEP) for the child and to challenge in administrative and court proceedings a 

proposed IEP with which they disagree. § § 1401(19), 1415(b), (d), (e). Where as in the present case 

review of a contested IEP takes years to run its course, important practical questions arise concerning 

interim placement of the child and financial responsibility for that placement. 

Honig v. Doe, 484 U.S. 305 (1988) was important in the area of school discipline as it relates to 

students with disabilities. Jack, who attended a developmental center for students with disabilities, was 

described as a socially and physically awkward teenager who had considerable difficulty controlling his 

impulses and anger. In response to taunts, he attacked and choked a fellow student and kicked out a 

window. The U.S. Supreme Court determined that the LEA could not indefinitely suspend students with 

disabilities like Jack’s but that, because LEA officials have an interest in maintaining a safe learning 

environment for all their students, they could seek an injunction to remove him from his “then current 

educational placement” in public school pending outcome of administrative and judicial proceedings 
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(Hersh & Johansen, 2007). This case made favorable decisions on behalf of emotionally disturbed 

children who had academic and social problems. Court clarified procedural issues designed to protect 

children from school officials and that schools shall not expel children for behaviors related to their 

handicaps.  

Florence Co. School District Four v. Shannon Carter, 510 U.S. 7, (1993) was a case involving tuition 

reimbursement for families of children with disabilities. If the public school program does not provide an 

appropriate education and the parents place the child into a private program where the child does receive 

an appropriate education, the parents are entitled to reimbursement for the child’s education. This 

decision opened the door to children with autism who receive ABA/Lovaas therapy. After respondent 

Shannon Carter, a student in petitioner public school district, was classified as learning disabled, school 

officials met with her parents to formulate an individualized education program (IEP), as required under 

the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Shannon’s parents 

requested a hearing to challenge the proposed IEP’s appropriateness. In the meantime, Shannon’s parents 

enrolled her in Trident Academy, a private school specializing in educating children with disabilities. 

After the state and local educational authorities concluded that the IEP was adequate, Shannon’s parents 

filed this suit, claiming that the school district had breached its duty under IDEA to provide Shannon with 

a “free appropriate public education,” §1401(a)(18), and seeking reimbursement for tuition and other 

costs incurred at Trident. The District Court ruled in the parents’ favor, holding that the proposed IEP 

violated IDEA, and that the education Shannon received at Trident was “appropriate” and in substantial 

compliance with IDEA’s substantive requirements, even though the school did not comply with all of the 

Act’s procedures. In affirming, the Court of Appeals rejected the school district’s argument that 

reimbursement is never proper when the parents choose a private school that is not approved by the State 

or that does not comply with all of the requirements of §1401(a)(18). In this situation, A court may order 

reimbursement for parents who unilaterally withdraw their child from a public school that provides an 

inappropriate education under IDEA and put the child in a private school that provides an education that 

is otherwise proper under IDEA, but does not meet all of §1401(a)(18)’s requirements. 

Cedar Rapids v. Garret F. (1999) affirmed that schools must provide related services to children who 

need services to attend school. Garret F., a minor and student in Cedar Rapids Community School 

District, is wheelchair-bound and ventilator dependent. He requires assistance in attending to his physical 

needs during the school day. The school district declined to accept financial responsibility for Garret’s 

services in order for him to be able to attend school. The school district believed it was not legally 

obligated to provide one-on-one care. An Administrative Law judge concluded that the Individuals with 

Disabilities Education Act (IDEA) required the school district to provide “school health services,” which 

are provided by a “qualified school nurse or other qualified person,” but not medical services, which are 

limited to services provided by a physician. The District Court and the Court of Appeals affirmed despite 

arguments from the school district that such one-on-one care is too costly and too involved to be 

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considered anything but medical in nature (Cedar Rapids Comm. Sch.Dist. v. Garret F. and Charlene F., 

1998).  

Schaeffer v. Weast (2005) is a case concerning the educational services that were due, under IDEA, to 

petitioner Brian Schaffer. Brian suffers from learning disabilities and speech-language impairments. 

From prekindergarten through seventh grade he attended a private school and struggled academically. In 

1997, school officials informed Brian’s mother that he needed a school that could better accommodate 

his needs. Brian’s parents contacted respondent Montgomery County Public Schools System (MCPS) 

seeking a placement for him for the following school year. MCPS evaluated Brian and convened an IEP 

team. The committee generated an initial IEP offering Brian a place in either of two MCPS middle 

schools. Brian’s parents were not satisfied with the arrangement, believing that Brian needed smaller 

classes and more intensive services. The Schaffers thus enrolled Brian in another private school, and 

initiated a due process hearing challenging the IEP and seeking compensation for the cost of Brian’s 

subsequent private education. This outcome of this case puts burden of proof on the party bringing the 

action in a special education matter. Prior to this, the Seventh Circuit had placed that burden on the 

school and/or cooperative, without regard to who initiated the action. The court further determined that a 

school district has no unfair information or resource advantage that would compel a court to reassign the 

burden of proof to a school system when the parents initiate the proceedings. Noting that Congress 

enacted the IDEA with the clear intention of deferring to local school authorities the task of developing 

educational plans for students with disabilities the court saw that it is reasonable to require parents 

attacking the terms of an IEP to bear the burden of showing why it is deficient. In essence the court found 

no reason to depart from the general rule that a party initiating a proceeding bears the burden of proof 

(Weast v. Schaffer, 377 F.3d 449, 4th Cir., 2004). 

Forest Grove v. T.A., 129 S. Ct. 987 08-305, 109 LRP 13476 (2009) had an outcome in which the 

Supreme Court decision clarified the federal law. The Supreme Court of the United States determined 

that the IDEA authorizes reimbursement for private special-education services when a public school fails 

to provide a free and appropriate public education to students with disabilities. Private school placement 

would then be determined appropriate, regardless of whether the child previously received services 

through the public school. The court said: “Moreover, when a child requires special-education services, a 

school district’s failure to propose an IEP of any kind is at least as serious a violation of its 

responsibilities under IDEA as a failure to provide an adequate IEP.” The court also noted, “We conclude 

that IDEA authorizes reimbursement for the cost of private special education services when a school 

district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the 

child previously received special education or related services through the public school.” Prior to this, 

there was a split among the federal court circuits as to whether 20 U.S.C. § 1412(a) (10) (C) created a 

categorical bar to reimbursement of private school tuition for students who have not “previously received 

special education and related services” (IDEA § 1412(a)(10)(C)(ii). In a 6-3 decision, the Supreme Court 

held that this dispute concerns not the adequacy of a proposed IEP but the School District’s failure to 
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provide an IEP at all (Baron, 2009). When a child requires special education services, a school district’s 

failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as 

a failure to provide an adequate IEP.  

The outcomes of each court case helped shaped the present Policies outlined in IDEA and the specific 

issues involved when identifying the definition of a Free and Appropriate Public Education. The research 

into historic court cases concerning FAPE, LRE and the Development of an IEP continues to be revisited 

as cases are brought to the courts in current events. States must uphold federal policies outlined by the 

IDEA and the No Child Left Behind initiatives that have evolved from established policies and laws. In 

1975 when Congress passed Public Law 94-142, the Education for All Handicapped Children Act 

(EAHCA), not every public official embraced the bill. President Ford called the Act “the potentially most 

expensive piece of legislation for disabled people ever passed by Congress.” Congressional and 

presidential concerns were expressed about the final bill however, it “enjoyed widespread bipartisan 

support and passed by a large margin.” Under the EAHCA, when States received federal special 

education funding, they were required to implement an Individualized Education Program (IEP) for each 

student with a disability in order to provide the individual with a Free, Appropriate Public Education 

(FAPE). The Individuals with Disabilities Act (IDEA) provides federal funds to states that develop plans 

to assure “all children with disabilities the right to a free appropriate public education.” A free 

appropriate public education (FAPE) “must be available to all children residing in the State between the 

ages of three and twenty-one, inclusive, including children with disabilities who have been suspended or 

expelled from school, as provided for in § 300.530(d).” 

The determination that a child is eligible for special education services “must be made on an individual 

basis by the group responsible within the child’s local educational agency [e.g., school district] for 

making eligibility determinations.” Each State must ensure that FAPE is available to any individual child 

with a disability who needs special education and related services, even though the child has not failed or 

been retained in a course or grade, and is advancing from grade to grade. The free appropriate public 

education, mandated by federal law, must include special education and related services tailored to meet 

the unique needs of a particular child and be reasonably calculated to enable the child to receive 

educational benefits. The FAPE guaranteed by the IDEA must provide a disabled child with meaningful 

access to the educational process. 

IDEA is a United States federal law that is considered both a grants statute and civil rights statute. This 

law provides federal funding for the education of children with disabilities and requires, as a condition 

for the receipt of such funds, the provision of a free appropriate public education (FAPE). This law 

continues to give guidance to public educators and govern how states and public agencies provide early 

intervention and special education and related services to children with disabilities. It was established as 

a way of addressing the individualized educational needs of children with disabilities from birth through 

age twenty-one. As a result of needing to individualize a student’s education, Individualized Education 

Programs (IEPs) were first required in 1975 after Congress passed PL 94-142. The IEP can be considered 
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a blueprint in child that documents the student’s educational and habilitative needs and what services and 

supports will be provided to help the student make progress. Prior to the Individuals with Disabilities 

Education Act, it was up to schools whether to provide services and supports to students with disabilities. 

Once this law was signed schools were provided guidance in what services and supports should be 

offered to students with disabilities in an effort to comply with the rules and regulations and to continue 

receiving funding from the federal government. The heart of the law is the child’s written IEP, which 

allows the child with a disability to receive a free appropriate public education (FAPE). The U.S. 

Supreme Court clarified the requirements of a FAPE in its first special education decision, Board of 

Education v. Rowley (1982), when it further defined a FAPE as,  

…personalized instruction with sufficient support services to permit the handicapped 

child to benefit educationally from that instruction. Such instruction and services must 

be provided at public expense, must meet the State’s educational standards, must 

approximate grade levels used in the State’s regular education, and must comport with 

the child’s IEP, as formulated in accordance with the Act’s requirements. If the child is 

being educated in regular classrooms, as here, the IEP should be reasonably calculated 

to enable the child to achieve passing marks and advance from grade to grade (Board 

of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192-194, 199, 

102 S. Ct., 3034, 3047). 

According to the U.S. Supreme Court in the Rowley case an appropriate program means, “An 

individualized Education Program (IEP) which was developed in procedural compliance with the 

requirements of the law and is reasonably calculated to allow the child to receive educational benefit”. 

Furthermore it was mandated that students with disabilities should be educated with nondisabled children 

in the general education setting to the maximum extent appropriate (IDEA: 458 U.S. 207). As a result of 

this court case, the court provided future direction for abiding by the regulations by suggesting a two-part 

test that asks two questions. 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? (Board of Educ. of Hendrick Hudson Cent. 

Sch. Dist. v. Rowley, 458 U.S. 176, 192-194, 199, 102 S.Ct., 3044). If these requirements are met, the 

state has complied with the obligations imposed by Congress and the courts can require no more. IDEA 

mandates that a “free appropriate education is available to all children with disabilities residing in the 

state between the ages of 3 and 21,” which is consistent with an IEP. Once the child has been diagnosed 

with one of the twelve categories of disability and it has been determined that an IEP is necessary an IEP 

must be developed and then implemented, reviewed and updated at least annually. The IEP document is 

completed at an IEP meeting by an Interdisciplinary Team (IDT) of professionals, including the student’s 

parents or guardian. The IEP meeting often serves as a communication vehicle between the parents and 

school. As demonstrated by the court cases reviewed in this paper, it is important that families are 

included in all decisions made concerning the educational program of their child. The greater the 
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communication and clarity in decisions made for programming, the greater the collaborative efforts 

between the school and the family become in order to meet the child’s needs.  

Legal conclusions about what services, programs, and accommodations are necessary to provide FAPE 

in the LRE to students with special needs are limited to the holdings in and logical extensions of the cited 

case law. Students may require additional (or fewer) services, programs or accommodations based on 

assessments and evaluations. Furthermore, because of the way disabilities manifests in each individual 

student, what may be deemed appropriate services, programs and accommodations for one student may 

be inappropriate or unnecessary for another student. Eligibility teams must apply the eligibility criteria to 

each student in an individualized, but consistent, manner, and IEP teams similarly must determine IEP 

services, goals, and objectives in an individualized, but consistent, manner. In Board of Education of 

Hendrick Hudson Central School District v. Rowley, the United States Supreme Court mandated that a 

reviewing court conduct a two prong inquiry to determine whether a student’s IEP fulfils the school 

district’s obligation to provide a FAPE. Under the first prong, the reviewing court must determine 

whether the state has complied with IDEA’s procedural requirements. Under the second prong, the 

reviewing court must determine whether the IEP is reasonably calculated to confer some educational 

benefit on a disabled child. In that regard, the Supreme Court added to the definition of a FAPE by 

including that a FAPE must provide disabled children with a “basic floor of educational opportunity ... 

[which] consists of access to specialized instruction and related services which are individually designed 

to provide educational benefit to the handicapped child.” (Karger, 2004). Yet, it is important to note that 

the IDEA does not require a school district to provide a child with the best possible education. Nor does 

the statute require a school district to furnish every special service necessary “to maximize each 

handicapped child’s potential.” Instead, the Second Circuit Court of Appeals has held that a school 

district can satisfy its obligation to provide a disabled child with a FAPE by providing “personalized 

instruction with sufficient support services to permit the child to benefit educationally from that 

instruction.” (458 U.S. 176, 182, 1401 18). A school need not “provide the optimal level of services, or 

even a level that would confer additional benefits.” The Eleventh Circuit Court of Appeals has held that 

“appropriate education” means “making measurable and adequate gains in the classroom. If ‘meaningful 

gains’ across settings means more than making measurable and adequate gains in the classroom, they are 

not required” by the IDEA. 

The Court set the standards for identifying a FAPE by developing a two-pronged inquiry for determining 

whether a school district had provided a student with FAPE. This was to include the following: 

1) Compliance with the procedural requirements of the statute; 

2) Development of an IEP reasonably calculated to enable the child to receive some educational 

benefit (458 U.S. at 206-07) (Karger, 2004). 

Applying the two-pronged test, the Court found that the school district in Rowley had complied with the 

procedural requirements of the statute and that the student was receiving educational benefit because she 

was performing better than the average student and was advancing easily from grade to grade. 
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The Rowley two-pronged test became highly utilized by courts to interpret further the meaning of FAPE. 

The importance of procedural compliance began to gain attention when some courts found that a 

procedural violation alone can constitute a denial of FAPE. For the most part, however, courts have held 

that a procedural violation, without evidence of loss of educational opportunity to the student, does not 

constitute a denial of FAPE. With respect to the second prong, courts continued to struggle with 

determining the adherence to policies in the development of the IEP. Some courts have held that although 

FAPE does not require students to receive the maximum potential benefit, the benefit must be more than 

minimal. This issues has been raised in court cases such as; Doe v. Smith and Polk v. Cent. Susquehanna 

Intermediate Unit 16, 853 F.2d 171, 179-80 (3d Cir. 1988). On the other hand, other courts have held 

that the amount of educational benefit does not have to be meaningful. For example, in JSK v. Hendry 

County School Board, the Eleventh Circuit held that under Rowley, districts were required to provide 

students with disabilities only a “basic floor of opportunity” - i.e., meaningful “access to a public 

education,” not meaningful “educational benefit” (941 F.2d 1563, 1572, 11th Cir. 1992).  

In 1982, in Board of Education v. Rowley, the United States Supreme Court first interpreted the 

meaning of an “appropriate” education under FAPE (458 U.S. 176 (1982). Over the years, the courts 

have helped define what FAPE is and is not. There was no discussion of what ‘appropriate’ services 

meant or how and where services would be provided to children with disabilities and remained at the 

complete discretion of the local education authority. In 1974, Congress addressed ‘appropriate’ 

education for children with disabilities by passing the Education of the Handicapped Act amendment 

and the subsequent passage of P.L. 94-142. The Education for All Handicapped Children Act of 1975 

mandated FAPE and ensured due process, Individual Education Programs (IEPs), and Least Restrictive 

Placements (LREs). It required local education authorities to provide educational services within the 

community, which allowed children with disabilities to remain living with their families. Although 

children were provided access to schools within their districts, this still created two educational 

tracks—one for non-disabled children and a second for children with disabilities. FAPE has been part of 

the federal special education law from this time of its inception. The law requires states to make FAPE 

available to children whose disabilities qualify them for special education and related services. In 

addition to the free appropriate public education requirement, IDEA’s preference is for disabled children 

to be educated in the least restrictive environment capable of meeting their needs. IDEA sets forth a 

strong congressional preference for integrating children with disabilities in the regular classrooms 

(Oberti v. Board of Education, 995 F. 2d 1204 (3d Cir., 1993). School districts must evaluate whether a 

child with a disability can be educated in a regular classroom if provided with supplementary aids and 

services. The Act’s least restrictive environment requirement is met when the child with a disability is 

educated in the regular classroom, or when the child who cannot be fully included is mainstreamed to the 

“maximum extent possible. 

In 1990, the law was reauthorized and renamed the Individuals with Disabilities Education Act (IDEA) 

and continues to provide access to general education services for children with disabilities by 
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encouraging that support and related services be provided to children in their general education settings 

as much as possible. This assists policy leaders and stakeholders in identifying, disseminating, and 

aligning evidence-based outcome producing practices with the Federal Government’s commitment to 

leaving no child behind in the attainment of a free appropriate public education. The Federal laws 

mandate that special education and related services be provided to students with individualized 

educational programs (IEPs). 

The definition of FAPE has changed over the years, however, did not change at all in the most recent 

reauthorization of the Individuals with Disabilities Education Act in 2004. IDEA’s current definition of 

FAPE is found in the implementing regulations at §300.17. 

Free appropriate public education or FAPE means special education and related services that— 

(a) Are provided at public expense, under public supervision and direction, and without charge; 

(b) Meet the standards of the SEA [state education agency], including the requirements of this 

part; 

(c) Include an appropriate preschool, elementary school or secondary school education in the 

State involved; and 

(d) Are provided in conformity with an individualized education program (IEP) that meets the 

requirements of §300.320 through 300.324. 

FAPE is the fundamental core of the IDEA and the IEP documents how a FAPE is provided for the 

student. Conceptually, FAPE is both the goal and the path to reaching the goal and is an entitlement of a 

child with a disability. IDEA defines that term in which a FAPE is provided and the IEP serves as a 

means by which this entitlement is mapped out (Individuals with Disabilities Education Act, 20 U.S.C. § 

1400, 2006). 

Educators and policy makers are confronted with the issues of defining a free and appropriate public 

education when the reality remains that it is defined differently for each child with a disability. While 

each child’s education must be free and while a public agency provides and pays for that education, what 

is “appropriate” for one child will not necessarily be appropriate for another. Determining what is 

appropriate for a specific child requires an individualized evaluation in which the child’s strengths and 

weaknesses are identified in detail. It also requires gathering information about the child’s participation 

in the general curriculum and other matters. Information gathered through this type of evaluation then 

illuminates the dimensions of an “appropriate” education for a given child. In any and every case 

however, the school is responsible for providing the child with a free appropriate education (FAPE) and 

the child’s Individualized Education Program (IEP) must be developed acting as a roadmap that 

describes how the school will meet this requirement. 

It is best practice for state level educational administration and district level faculty members to be aware 

of the research into past court cases that address the educational rights of students with special needs as 

outline by the federal IDEA. Assessment and Eligibility determination is the first step that begins the 

development of an IEP to address a student’s individual needs. Administrators and team members 
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important in the PPT process must focus on best practices in an assessment process and the development 

of an Individualized Education Program. This begins following a comprehensive evaluation process and 

appropriate assessment techniques to monitor student performance to determine the need for 

modifications that address the student’s changing needs. However, it must also be noted, that 34 C.F.R. 

Section 300.101(c) states that a Free and Appropriate Public Education (FAPE), must be available to any 

child with a disability who needs special education and related services, even if the child has not failed or 

been retained in a course or grade and is advancing from grade to grade. IEP’s must be designed to assure 

that goals and objectives are designed for the needs of the individual student. Policymakers have set that 

a FAPE is defined as “the provision of regular or special education and related aids and services that ‘are 

designed to meet individual educational needs of persons with disabilities as adequately as the needs of 

persons without disabilities are met’” (Note 1). Provision of FAPE may require that a student with a 

disability receive specialized instruction and related services under the protection of the IDEA, which 

provides an IEP and additional procedural safeguards, while also protecting that student from 

discrimination (Note 2). For a child to meet eligibility for special education and related services under 

the IDEA, the child’s disability must adversely affect educational performance. If this qualifying 

condition is not met, the child will not be eligible for special education and related services under the 

IDEA. Best practices for assessment is a process of obtaining information about students so that teachers, 

other school professionals and parents can make informed decisions about a students’ education. A 

comprehensive and valued assessment is key to ensuring a student’s access to appropriate educational 

opportunities and FAPE.  

With respect to the PPT process, assessment decisions focus on (1) determining the student’s eligibility 

for special education and related services, (2) developing the student’s Individualized Education 

Program (IEP), and (3) ongoing measurement and monitoring of student performance. These decisions 

are made appropriately when assessment is conducted in a comprehensive and valid manner using 

various sources of information as appropriate such as observations, evaluation measures, ratings scales 

and normative data (Note 3). Additionally, the measures employed must be considered valid and reliable 

for the group to which the measures are administered. 

Information and involvement from parents/family is essential in designing a comprehensive assessment. 

Input from parents ensure that the appropriate information is collected, documented, used in determining 

eligibility and included when the PPT determines that an IEP will be developed. When the PPT engages 

in designing an initial evaluation or reevaluation to determine eligibility for special education, the IDEA 

2004 requires that school personnel collect and consider parental input (Note 4). 

Once eligibility for special education services has been established, attention must shift to development 

of an overall plan that can meet the student’s educational needs. In developing the IEP for all special 

education students it is required that goals, objectives and program characteristics be developed before 

specific program and education setting decisions are made. The PPT is a means to assure that the student 

is not abruptly removed from his or her current educational setting to a more restrictive setting. The team 
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must develop goals and objectives, determine appropriate supports and services and agree on the service 

providers prior to addressing placement in the least restrictive educational setting. IEP development 

requires that goals and objectives be written based on the student’s profile and current level of 

performance and that the goals and objectives reflect the appropriate specialized instruction. The 

definition of special education found in 34 CFR Section 300.39, clarifies that special education and 

specialized instruction encompass more than only academic instruction. PPTs must consider all aspects 

of the child’s functioning at school, including social/emotional, cognitive, communication, vocational 

and independent living skills and not limit the development of goals and objectives to academic areas. 

The referral process, quality assessment, data collection and each step involved in planning for a child’s 

educational program must be conducted in such a manner that all parties are made aware of, and part of 

the decision making process. Providing a student with a free and appropriate public education as 

specified in IDEA can only be accomplished if the development and execution of an IEP is carried out by 

each team member involved in the child’s plan.  

The PPT determines the least restrictive environment or setting in which the goals and objectives, 

services and interventions will be implemented. By law, schools are required to provide a FAPE in the 

LRE that is appropriate to the individual student’s needs (Note 5). A student who has a disability 

identified in IDEA should have the opportunity to be educated with nondisabled peers, to the greatest 

extent appropriate. Identified students should have access to the general education curriculum. 

Extracurricular activities or any other program that nondisabled peers would be able to access. The 

student should be provided with supplementary aids and services necessary to achieve educational goals 

if placed in a setting with nondisabled peers. While assessment information will be the basis for 

determining which interventions, strategies and/or services will be written into the student’s IEP, along 

with goals and objectives (Note 6). 

Special classes, separate schooling or other removal of children with disabilities from the general 

education environment occurs only if the nature or severity of the disability is such that education in 

general classes with the use of supplementary aids and services cannot be achieved satisfactorily (Note 

7). Each child requiring special education services should be educated in the schools that he or she would 

attend if he or she did not require special education and related services unless the IEP requires another 

placement. 

An appropriate educational program begins with an IEP which accurately reflects the results of 

evaluations to identify the student’s needs, establishes annual goals and short-term instructional 

objectives related to those needs, and provides for the use of appropriate special education services (Note 

8). Federal regulation requires that an IEP include a statement of the student’s present levels of 

educational performance, including a description of how the student’s disability affects his or her 

progress in the general curriculum (Note 9). School districts may use a variety of assessment techniques 

such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any 

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combination thereof to determine the student’s present levels of performance and areas of need (Note 

10). 

An IEP must also include a statement of the special education and related services and supplementary 

aids and services to be provided to or on behalf of the student, as well as a statement of the program 

modifications or supports for school personnel that will be provided to the student (Note 11). Such 

education, services and aids must be sufficient to allow the student to advance appropriately toward 

attaining his or her annual goals (Note 12). 

An IEP must also include measurable annual goals, including benchmarks or short-term objectives, 

related to meeting the student’s needs arising from his or her disability to enable the student to be 

involved in and progress in the general curriculum, and meeting the student’s other educational needs 

arising from the disability (Note 13). In addition, an IEP must describe how the student’s progress 

towards the annual goals will be measured and how the student’s parents will be regularly informed of 

such progress (Note 14). In addition, the IDEA mandates that all students with disabilities be educated 

with nondisabled children to the maximum extent appropriate and may only be removed to a more 

restrictive environment when the nature and severity of the disability is such that education in regular 

classes with the use of supplementary aids and services cannot be achieved satisfactorily (Note 15). 

Special education and related services must be provided in the least restrictive setting consistent with a 

[student’s] needs (Note 16) The test for determining whether a school district has complied with the LRE 

requirement consists of two prongs: 1) whether the student can be educated in a regular classroom with 

the use of supplemental aids and services, and 2) whether the school district has mainstreamed the 

student to the maximum extent appropriate (Note 17). Several factors must be considered at each stage of 

the inquiry. When determining whether a student with a disability can be educated satisfactorily in a 

regular class with supplemental aids and services, these factors include, but are not limited to: “(1) 

whether the school district has made reasonable efforts to accommodate the child in a regular classroom; 

(2) the educational benefits available to the child in a regular class, with appropriate supplementary aids 

and services, as compared to the benefits provided in a special education class; and (3) the possible 

negative effects of the inclusion of the child on the education of the other students in the class (Note 18)”. 

To ensure the appropriate and effective implementation of a student’s educational program, a systematic 

process for monitoring student performance on an ongoing basis should be developed. This process 

delineates ways in which documentation of all student outcomes written in the IEP can be gathered 

across all educational settings. This process also guides recommendations for program modifications and 

changes, monitors timelines and can assist in providing evidence for continued eligibility as a student 

who requires special education services. Additionally, ongoing assessment provides for daily or weekly 

data collection and monitoring of student performance, revealing what does and does not work. Progress 

monitoring drives instructional modifications and changes in the IEP that enable students to succeed 

(Note 19). When team members have knowledge of data describing student performance, they are better 

informed and able to contribute to meetings in which important decisions are made (team meetings, 
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annual reviews, triennial reviews, etc.). Ongoing assessment and progress monitoring provides a record 

of student performance over a substantial period of time and enables those involved in annual and 

triennial reviews to make decisions that are based on a substantive data. In other words, the ongoing 

recording and reviewing of data informs educators about student performance with respect to the goals, 

objectives and timelines of the educational program (Note 20).  

Ongoing assessment also provides the PPT with evidence as to whether the student continues to meet the 

eligibility criteria for special education and related services. Those included in the administration and 

implementation of the educational program, such as teachers, parents, students, related services 

personnel and community liaisons should contribute to the ongoing monitoring of student progress. 

Anecdotal notes or logs of meetings and conversations that focus on student progress are also 

recommended. Progress monitoring practices/activities should be designed to illustrate the success of 

interventions and student progress and achievement of IEP goals and objectives. Communication and 

documentation are essential elements in the process. The systems and processes by which educational 

professionals monitor and document progress vary and can best be determined by those most closely 

involved. For example, a group of teachers in an elementary school might schedule informal meetings 

where the performance of a student can be reviewed and information shared. Others might choose to 

employ the use of an assignment notebook, chart and/or journal whereby student work can be recorded 

and monitored by teachers, parents and the student. At the secondary level, regularly scheduled team 

planning meetings can highlight the needs and progress of specific students. Such practices and activities 

provide for the collection of data, the analysis of student performance and the recommendation for 

appropriate modifications and adjustments to interventions and the IEP. Throughout the progress 

monitoring process, educators should provide data to parents/families in a manner that is easily 

understood; engage families in ongoing communication, which focuses on their view of the student’s 

progress. Families should be viewed as partners and participants in the progress monitoring process. 

Regular and ongoing assessment of student performance through frequent progress monitoring in all 

areas of focus will facilitate the provision of successful interventions and appropriate specialized 

instruction and services. Ongoing collaboration between school and family is essential to student success. 

Collaboration among school, home and private/public agencies is a continuing process. School-based 

case manager services are assigned by the school district to coordinate the collaboration of multiagency 

personnel and to assist students.  

The overriding theme of the IDEA is that IEPs and educational programs for students with disabilities 

must be individualized. There have been many causes where courts have indicated that IEP are not 

individualized. Two such cases are: (1) Chris D. v Montgomery County Board of Education, 1990; and 

Gerstmyer v. Howard County Public School, 1994. Both cases share various accounts of how the court 

system have dealt with public school district when parents file a due process compliant with allegations 

that their child is not being provided a free appropriate public education due to the lack of or an 

inappropriate IEP. Another area in which procedural violations have been discussed relates to three 
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obligatory statements concerning involvement in the general curriculum that IDEA ‘97 requires the IEP 

to contain. The IEP must state: (1) how the student’s disability affects his/her involvement in the general 

curriculum; (2) the goals and objectives that will enable the student to be involved in the general 

curriculum; and (3) the supplemental aids and services, program modifications and support for personnel 

that will help the student to be involved in the general curriculum (Note 21). 

Claims concerning these three requirements have tended to focus on the sufficiency of the statement in 

the IEP. For example, in J.S. & T.S. v. Shoreline School District, parents claimed that the statement in 

their son’s IEP regarding how his disability affected his involvement and progress in the general 

curriculum was insufficient (Note 22). The court found that although the IEP made only passing 

reference to the student’s Attention Deficit Hyperactivity Disorder, the impact of the vagueness of this 

statement was minimal. The court noted that there was no legal authority prescribing a “threshold level of 

comprehensiveness” for such a statement (Note 23). Therefore, the court concluded that the district had 

met its obligation and that the student had not been denied FAPE (Note 24). Similarly, in J.W. v. 

Contocook Valley School District, the court found that although some of the IEP goals were not 

measurable or appropriately related to the general curriculum, the violation was not substantive (Note 

25). With respect to the third requirement concerning involvement, in John M. v. Board of Education of 

Evanston Community Consolidated School District 65, the court found that although the IEP contained 

the sparse statement: “support + consultation as needed and determined by staff,” the district had met its 

obligation because it had made sufficient services available to the student (Note 26). The court noted, 

“The fact that the IEP does not go into detail cannot be concluded to be a procedural violation of the Act” 

(Note 27). 

Thus, courts and hearing officers seem to have a minimal standard for sufficiency that is relatively easy 

for districts to satisfy with respect to these three IEP requirements. This approach is not entirely 

surprising given the tendency of courts and hearing officers, following Rowley, to hold districts to a 

“basic floor” standard and not to require them to maximize the potential of each child. The interpretation 

given by the courts and hearing officers means that districts must show that they have met their 

obligations concerning these statements, but only on a minimal level. 

Throughout American history, public schools have functioned as an agency of socialization and social 

control. As such, schools have continued to evolve in response to the pressures placed upon them by the 

social organizations they serve. In response to these social pressures, schools continue to change and 

become more specialized, attempting to develop specific programs for the various student populations. 

The wealth of court cases involving IDEA has resulted in a refined definition of “free appropriate public 

education”, much deeper and more nuanced than it was when Congress first enacted the law (Note 28). It 

is difficult to foresee what further changes will be brought about by Congress’s reauthorizations or by the 

new No Child Left Behind legislation. NCLB requires, among other provisions, that States adopt 

challenging content and achievement standards for all students, including students with disabilities (Note 

29). It is likely that, as a result of this requirement in NCLB, future claims brought under IDEA for a 
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denial of FAPE may very well include consideration of the schools’ ability to provide students with 

disabilities the opportunity to learn the material in a states curriculum frameworks as well as the general 

curriculum. NCLB has an immediate impact because it is far more specific than past versions of the law 

and it deals with testing; accountability and Adequate Yearly Progress (AYP); school choice; teacher 

quality; and para-educator quality (Note 30). Stemming from the Education for all Handicapped 

Children Act (EAHCA) of 1975, the Individuals with Disabilities Education Act was enacted in its first 

form in 1997, and then reenacted with new education aspects in 2006 (Note 31). It kept the EAHCA 

requirements of free and accessible education for all children. The 2004 IDEA authorized formula grants 

to states and discretionary grants for research, technology and training. It also required schools to use 

research-based interventions to assist students with disabilities (Note 32). 

The amount of funding each school would receive from its “Local Education Agency” for each year 

would be divided by the number of children with disabilities and multiplied by the number of students 

with disabilities participating in the school wide programs. Particularly since 2004, policymakers have 

sought to align IDEA with NCLB (Note 33). The most obvious points of alignment include the shared 

requirements for Highly Qualified Teachers, for establishment of goals for students with special needs, 

and for assessment levels for these students. In 2004, George Bush signed provisions that would define 

for both of these acts what was considered a "highly qualified teacher” (Note 34). 

 

Table 1. Qualitative Methods Approach for Appropriate Law and Policy Review  
 Descriptive Claims Causal Claims 

Claims about Cases in 
Sample 

 

 

Counterfactuals 

Claims about Cases in 
Broader Population 

Sampling Sampling and Counterfactuals 

 

3. Discussion 

The lack of a substantive definition of the appropriateness standard has caused substantial litigation 

between school systems and parents of children with disabilities. Even a general definition of the term 

“educational appropriateness,” as education that supports a quantifiable measure of meaningful and 

adequate progress towards achieving skills to promote literacy, communication and self-sufficiency, 

might be enough, if stated within the IDEA itself or within the DOE’s regulations. The achievement of 

educational adequacy can no longer focus upon minimal educational benefit, based on a state’s unguided 

standard of appropriate goals. As long as individualized special education and support services are 

provided in the LRE, the student is making some progress towards reasonably calculated goals, and 

proper procedure has been followed, states have been given latitude to do as little as is warranted to 

comply with the Act. Valid requests for more effective educational methods have been seen as 

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"maximizing Potential” or providing “utopian” measures (Note 35). Yet, methodological considerations 

make a substantial difference in the rate or even ability of a child with disabilities to learn what is clearly 

prerequisite to self-sufficiency as currently mandated within the act. Without a clear federal definition to 

support the IDEA, a source of controversy, dispute, and litigation may exist for years to come. The DOE 

has had the opportunity to refine this ambiguous standard by incorporating a definition for the term 

appropriate within the guidelines they have promulgated for the IDEA. Before the dust settles on the 

enactment of the DOE’s regulations for this very comprehensive and well-crafted Act, it would be wise 

for this administrative body to insure the inclusion of this long absent definition. States have been 

awaiting the finalization of the DOE regulations to ensure that their own standards are in compliance 

with the IDEA. The pressures of the moment make it all the more important for the DOE or some other 

authoritative federal source to resolve this open question. 

One thing that is made certain in this case review is that the definition of Free Appropriate Public 

Education will continue to evolve as legislation changes and challenges to the act are brought into court. 

State law should always be checked. Each state has its own statutes and regulations implementing the 

IDEA. While these state statutes and regulations usually mirror the federal statutes and regulations, this is 

not always the case. For example, federal statutes and regulations are silent on some points, and Congress 

has allowed states to develop independent standards in some areas. Further, while the state may not 

provide fewer rights, some states actually provide more substantive and procedural rights than required 

under IDEA. 

 

4. Results 

The IDEA is a “comprehensive scheme, set up by Congress, to aid the States in complying with their 

constitutional obligations to provide public education for handicapped children”. Both the provisions of 

the statute and its legislative history indicate that Congress intended handicapped children with 

constitutional claims to have access to a free appropriate public education to pursue those claims through 

the carefully tailored administrative and judicial mechanism set out in the statute. The IDEA was an 

attempt to relieve the fiscal burden placed on states and localities by their responsibility to provide 

education for all handicapped (Note 36). At the same time, however, Congress made clear that the IDEA 

is not simply a funding statue. The responsibility for providing the required education remains on the 

states (Note 37). “The IDEA establishes and enforces a substantive right to a free, appropriate public 

education” (Note 38). 

The cornerstone for resolving disputes between parents and districts as to eligibility, FAPE, and other 

issues under the IDEA, is an impartial administrative adjudication conducted by a hearing/review officer 

(H/RO). The IDEA gives states the choice of having a one-tiered system, consisting solely of an impartial 

due process hearing, or a two-tiered system, which includes an additional officer level review. 

Subsequent to exhausting this administrative adjudication, the aggrieved party has the right to judicial 

review in state or federal court (Note 39). The IDEA accords judges the authority to award attorneys’ fees 
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in specified circumstances and, without further specification, requires them to grant “such relief as the 

court determines is appropriate”. The IDEA and its regulations, however, are largely silent about the 

remedial authority of the impartial H/ROs. The language of the IDEA and its regulations are not 

particularly helpful in this regard, but a growing body of published administrative and case law provides 

useful and enforceable demarcations that warrant careful consideration by H/ROs and other interested 

individuals (Note 40). The addition of qualifications for H/ROs in the IDEA reauthorization, concerning 

H/ROs’ knowledge and ability to understand special education law, to conduct hearings, and to “render 

and write decisions”, appears to reinforce the need for H/ROs to be aware of and to act in conformance 

with the limits on their remedial powers. The codification of the applicable authority, including the 

boundaries for H/ROs, merits not only the attention of Congress, which has neglected this important area 

of policy-making as a foundation for state variation, but also customized elaboration in state special 

education statutes and regulations (Note 41). 

 

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Notes 

Note 1. 34 C.F.R. Section 104.33[b] [1]. 

Note 2. See generally OFFICE OF SPECIAL EDUC. & REHABILITATIVE SERVS., U.S. DEP’T OF 

EDUC., A GUIDE TO THE INDIVIDUALIZED EDUCATION PROGRAM (2000), 

http://ed.gov/parents/needs/speced/iepguide/iepguide.pdf. 

Note 3. i.e., age, gender, ethnicity and language. 

Note 4. 34 C.F.R. Sections 300.304[b][1].  

300.305[a][l][i] and 300.305[a][2], and 300.306[c][l][i]). 

Note 5. LRE refers to the education of students with disabilities to the maximum extent appropriate in a 

setting together with students without disabilities (20 U.S.C. §1412(a)(5)(A)). 

Note 6. Jean B. Crockett and Mitchell L. Yell, 2008. Without Data all we have are Assumptions: 

Revisiting the Meaning of a Free Appropriate Public Education. Journal of Law & Education, Vol. 37, 

No. 3, 386. 

Ibid, p. 387. 

Note 7. 34 C.F.R. Section300.114[a][2][ii]. 

Note 8. Application of a Child with a Disability, Ap.peal No. 04-046; Application of a Child with a 

Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application 

of a Child Suspected of Having a Disability, Appeal No. 93-9. 

Note 9. 34 C.F.R. § 300.347[a][1]. 

Note 10. 34 C.F.R. Part 300, Appendix A, Section 1, Question 1. 

Note 11. 34 C.F.R. § 300.347[a][3]. 

Note 12. 34 C.F.R. § 300.347[a][3][i]. 
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Note 13. 34 C.F.R. § 300.347[a][2].  

Note 14. 34 C.F.R. § 300.347[a][7].  

Note 15. 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 

1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. 

of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. 

Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. 

Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal 

No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a 

Disability, Appeal No. 94-21). 

Note 16. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]. 

Note 17. (Daniel R.R., 874 F.2d at 1048; Oberti 995 F.2d at 1213; Warton, 217 F. Supp.2d at 274; A.S. 

v. Norwalk, 183 F. Supp.2d at 542 n.8; Mavis, 839 F. Supp. at 985; Application of a Child with a 

Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24). 

Note 18. (Oberti, 995 F.2d at 1217-18; see also Daniel R.R., 874 F.2d at 1048-1049; Mavis, 839 F. Supp. 

at 987-990; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a 

Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). 

Note 19. Jean B. Crockett and Mitchell L. Yell, 2008. Without Data all we have are Assumptions: 

Revisiting the Meaning of a Free Appropriate Public Education. Journal of Law & Education, Vol. 

37, No. 3, 386. 

Note 20. Ibid, p. 387. 

Note 21. 20 U.S.C. §§ 1414(d)(1)(A)(i)-(iii). 

Note 22. 220 F. Supp. 2d 1175, 1187 (W.D. Wash. 2002). 

Note 23. Id. 

Note 24. Id. 

Note 25. 154 F. Supp. 2d 217, 222 (D. N.H. 2001). 

See also Barber v. Bogalusa City Sch. Bd., 2001 U.S. Dist. LEXIS 8156, 5-6 (E.D. Lo 2001); John M., 

No. 01-C-1052, 01-C-1063, 2002 U.S. Dist. LEXIS 10931 (N.D. Ill 2002); Yarmouth Sch. Dept., 36 

IDELR 148 (Me. SEA 2001); Board of Educ. of the Penfield Centr. Sch. Dist., 38 IDELR 80 (N.Y. SEA 

2002); Ysleta Indep. Sch. Dist., 33 IDELR 53 (Tex. SEA 2000). 

Note 26. No. 01-C-1052, 01-C-1063, 2002 U.S. Dist. LEXIS 10931 (N.D. Ill 2002). 

Note 27. Id. 

Note 28. Martin W. Bates, “Free Appropriate Public Education under the Individuals with Disabilities 

Education Act: Requirements, Issues and Suggestions.” Brigham Young University Education & Law 

Journal, spring, 1994, 215, 220-222. 

Note 29. Sec. 1111(b)(1)(A)-(B). 

Note 30. No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq. (2001). 

Note 31. still referred to as IDEA 2004. 
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Note 32. Perry A. Zirkel. “The Legal Meaning of Specific Learning Disability for Special Education 

Eligibility.” Teaching Exceptional Children, 2010, Vol., 42(5), 63. 

Note 33. The Impact of No Child Left Behind on IDEA’s Guarantee of Free, Appropriate Public 

Education for Students with Disabilities: A Critical Review of Recent Case Law, 2009. 

Note 34. Ibid. 

Note 35. Polk v. Cent. Susquehanna Indep. Unit 16, 853 F.2d 171, 184 (3d Cir. 1988).  

Note 36. 20 U.S.C. Sec. 1400c. 

Note 37. Individuals with Disabilities Education Act, 20 U.S.C. Sec.1400c. 

Note 38. National Council on Disability, 1995, p. 5; Norlin, 2005. 

Note 39. Perry A. Zirkel. “The Remedial Authority of Hearing and Review Officers under the 

Individuals with Disabilities Education Act: An Update.” Journal of the National Association of 

Administrative Law Judiciary. Spring, 2011, p. 1-28. 

Note 40. Ibid. 

Note 41. Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the 

Individuals with Disabilities Education Act, 58 Admin. L. Rev. 401 (2006). 

 

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	Original Paper
	Abstract
	Some of the most controversial education policy concerns and methods of practice have been over Special Education. Students between the ages three to twenty-one with disabilities compromise 13% of student enrollment between prekindergarten and twelfth...
	Keywords
	References

