November 2016 – As the latest additions to your legal currency, this month’s alert identifies these two aspects of the IDEA’s central obligation of “free appropriate public education” (FAPE) that have emerged beyond the procedural and substantive dimensions of FAPE demarcated in Board of Education v. Rowley (1982).
- The first of these two relatively recent judicially recognized forms of FAPE is implementation—specifically, a denial of FAPE based on the failure to implement the IEP fully. The update identifies the three competing approaches for such failure-to-implement cases, with the majority of jurisdictions not yet having clearly chosen among them.
- The most recently recognized and least clearly settled claim for denial of FAPE is based on the capacity of the placement to implement the IEP. This claim that the school is not able to implement the child’s IEP has elements of the procedural, substantive, and implementation dimensions but is ultimately separable from them.
Perry A. Zirkel 