Big Reaction to My Call for a Middle Ground on FAPE Standard

View of Capitol Hill from the U.S. Supreme CourtImage via Wikipedia
In a post last week, I suggested that maybe there could be a FAPE standard that does not encompass either extreme. Since 1982, which is a long time when you are dealing with new law, when the U S Supreme Court decided Rowley, the FAPE standard has been that a school district must create an IEP for a child with a disability that is reasonably calculated to confer some educational benefit.  The court described this as the basic floor of opportunity. This case is the cornerstone of special education law.

The lower courts that decided Rowley before it reached the supremes ruled, based in part on explicit language in the legislative history of IDEA's predecessor, the EHA. that the standard was that a school district is required to maximize the student's potential.  Parents often argue that this should be the standard.  Many of us feel that our schools should maximize the potential of all children.  We are not willing, however, to pay the level of property taxes necessary to support such an education system.

Last week I suggested that maybe there can be a middle ground.  We received many thoughtful and heartfelt comments on the blog, numerous emails, and reactions on our related facebook special education law group.   I believe that this may be a debate worth having- especially with IDEA overdue for an overhaul.

As I have argued here before, special education law is new law.  New law is whatever did not come over on the boat from England. The cycle of change is a part of the deal: amendments to the law, new federal regs, new state regs, some hearing officer decisions, some court rulings.  Just when we all are pretty comfortable, it's time for reauthorization and amending the law once again.  The cycle of change continues.

So change is not foreign to this area of the law.  In fact we embrace it.  So why not reconsider the FAPE standard?  

This change would have to come from Congress.  One District Court held that the FAPE standard was outdated, after a very long delay the decision was reversed by the Ninth Circuit Court of Appeals.  Congress will be eventually reauthorizing IDEA, it is overdue, and amendments will be considered.

So what do you think?  Please let me know.

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