This November update identifies two relatively recently recognized forms of alleged denials of IDEA’s central obligation of “free appropriate public education” (FAPE), which have emerged beyond the procedural and substantive dimensions of FAPE originally established 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.
Click to download November 2016’s legal alert (zirkel-legal-alert-november-2016).