FAPE, LRE and InclusionPatrick Long

FAPE• Free Appropriate Public Education means special education

and related services that are provided at public expense, under public supervision and direction, and without charge.

• The ED Section 504 regulation defines a person with a disability as “any person who: • has a physical or mental impairment which substantially limits

one or more major life activities,• has a record of such an impairment, or • is regarded as having such an impairment.”

• How is “appropriate education” defined?

Board of Education v. Rowley (1982)

• Amy Rowley – Deaf student at Furnace Woods School in Peekskill, NY.• Kindergarten: Placed in regular class; provided with FM hearing

aid. Successfully completed.• Amy’s parents insisted she needed a sign language interpreter –

Request denied.• Rowley’s Appeal • Examiner sides with school • New York Commissioner of Ed. sides with examiner• U.S. District Court found that Amy performs better than average

but not achieving full potential or FAPE• U.S. Court of Appeals affirms District Courts decision • U.S. Supreme Court reverses decision stating IEP was sufficient

LRE and Inclusion• Least Restrictive Environment (LRE)• Children with disabilities are educated with nondisabled children

to the maximum extent possible. • Removal should only occur if the disability is severe enough that

education, with the help of aids and additional services, cannot be achieved satisfactorily.

• Inclusion • Process in which children with disabilities are mainstreamed into

general academic and nonacademic environments with nondisabled students.

Daniel R.R. v. State Board of Education (1989)• Daniel – 6 year old with Downs Syndrome, ID, speech impaired• Parents want half-time regular pre-k, half special education• Had severe difficulties. Required constant 1 on 1 attention. Not grasping

material• School recommended withdrawing from regular classes, but have lunch and

recess with non-disabled students. Parents disagreed, went to court.• Court Proceedings• Fifth Circuit ruled school district complied with IDEA by allowing him to still

eat and play with the non-disabled students but to much curriculum modification to keep him in regular pre-k.

• Used 2 part test• whether education in the regular classroom, with the use of supplemental aids and

services, can be achieved satisfactorily for a given child, If it cannot and the school intends to provide special education or to remove the child from regular education.

• whether the school has mainstreamed the child to the maximum extent appropriate

• Test became basis for future decisions on this subject.

Sacramento City Unified School District v. Rachel H. (1994)• Rachel Holland – 11 year old girl with an IQ of 44

• Rachel in special programs, parents wanted placement in regular classroom full-time• School countered: special education for academic; inclusion for nonacademic • Parents refused, requested due process, and enrolled Rachel in a regular kindergarten

class in at a private school. • Court Proceedings

• Initial court found Rachel benefited from regular kindergarten classroom and was not disruptive. Ordered to be placed in regular 2nd grade class

• 9th Circuit court built upon the 2 part test and developed 4 parts – Holland wins• educational benefits available in a regular classroom, supplemented with appropriate aids

and services, as compared with the educational benefits of a special education classroom • non-academic benefits of interaction with children who were not disabled• effect of Rachel's presence on the teacher and other children in the classroom• cost of mainstreaming Rachel in a regular classroom

• School district appealed to U.S. Supreme court but was never heard. 2 Questions• what was to be the role of educational professionals in evaluating appropriate placements• must the school district subject the disabled child to repeated failures in full-time

mainstreaming classrooms prior to placing the child in a program with less than full-time mainstreaming

Resources• http://www2.ed.gov/about/offices/list/ocr/docs/edlite-

FAPE504.html• http://www.wrightslaw.com/law/caselaw/ussupct.rowley.htm• Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.

794.• Daniel R.R. v. State Board of Education, 874 F.2d 1036, 5th Circuit,

1989.• Sacramento City Unified School District, Board of Education v. Rachel

Holland, 14F.3d 1398, 9th Circuit, 1994.• H.R. 1350--108th Congress: Individuals with Disabilities Education

Improvement Act of 2004. (2003). In www.GovTrack.us. Retrieved from http://www.govtrack.us/congress/bills/108/hr1350

• Gruenhagen, K., & Ross, S. (1995). Least restrictive environment and case law: What the courts are saying about inclusion. Retrieved from http://files.eric.ed.gov.libproxy.txstate.edu/fulltext/ED386005.pdf