Free Appropriate Public Education (FAPE)

Free Appropriate Public Education, or FAPE, is an educational right of children with disabilities in the United States that is guaranteed by the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). Under Section 504, FAPE is defined as “the provision of regular or special education and related aids and services that are designed to meet individual needs of handicapped persons as well as the needs of non-handicapped persons are met and based on adherence to procedural safeguards outlined in the law.” Under the IDEA, FAPE is defined as an educational program that is individualized to a specific child, designed to meet that child's unique needs, provides access to the general curriculum, meets the grade-level standards established by the state, and from which the child receives educational benefit. The United States Department of Education issues regulations that define and govern the provision of FAPE.

To provide FAPE to a child with a disability, schools must provide students with an education, including specialized instruction and related services, that prepares the child for further education, employment, and independent living.

Criteria for FAPE
The "free" public education means educational services must be provided at public expense, under public supervision and direction, and without charge to parents except for fees that are charged for all students. In Board of Education v. Rowley the United States Supreme Court set forth a two-part inquiry for determining whether a school district has satisfied the FAPE requirement. First, the state must have "complied with the procedures set forth in the Act." These procedures enable parents of a disabled child to examine school records, participate in meetings, and present complaints. Parents must also be given notice of any proposals to change the educational placement of a child, and they are entitled to an independent educational evaluation. They can initiate an impartial due process hearing for failure to comply with the Act and bring a subsequent civil action challenging an adverse determination at the hearing. Second, the IEP that is developed must be "reasonably calculated to enable the child to receive educational benefits." Therefore, if the child is being educated in the regular classrooms of the public education system the IEP must be designed to enable the child to achieve passing marks and advance from grade to grade.

Definition of an appropriate education
Some of the criteria specified in various sections of the IDEA statute includes requirements that schools provide each disabled student an education that:
 * is designed to meet the unique educational needs of that one student,
 * addresses both academic needs and functional needs,
 * provides “...access to the general curriculum to meet the challenging expectations established for all children” (that is, it meets the approximate grade-level standards of the state educational agency, to the extent that this is appropriate)
 * is provided in accordance with the Individualized Education Program (IEP) as defined in 1414(d), and
 * is reasonably calculated to enable the child to receive educational benefits.

The free appropriate public education proffered in an IEP need not be the best possible one, nor one that will maximize the child's educational potential; rather, it need only be an education that is specifically designed to meet the child's unique needs, supported by services that will permit him to benefit from the instruction. The IDEA guarantees only a basic floor of opportunity, consisting of specialized instruction and related services which are individually designed to provide educational benefit. Thus, Rowley says, the IDEA "cannot be read as imposing any particular substantive educational standard upon the States."

Definition of educational benefit
Since the statute is silent as to what constitutes educational benefit, the standard is defined federal regulations and by ongoing case law. Most courts to address the issue have found that in order to show a FAPE is being provided, the child must make some educational progress. A number of courts have struggled with the question of how much progress is sufficient, yet the standards are still somewhat vague.

In Board of Education v. Rowley, the U.S. Supreme Court ruled that IDEA does not require states to develop IEPs that "maximize the potential of handicapped children." Another important ruling established by a case called Walczak v. Florida Union Free School District in 1998 asserts that children are not entitled to the best education that money can buy; they are only entitled to an appropriate education. Some courts have required that the progress the child receives be meaningful or more than de minimus.

Legal basis and relevant statutes
Three existing federal statutes address the rights of children with disabilities to receive a free and appropriate public education (FAPE): Section 504 of the 1973 Rehabilitation Act, Individuals with Disabilities Education Act (IDEA), and Americans with Disabilities Act (ADA). FAPE is a civil right rooted in the Fourteenth Amendment of the United States Constitution which includes Equal Protection and Due Process clauses.

IDEA 2004 excerpts
Public Law 94-142 (IDEA) defines FAPE as special educational and related services at public expense (i.e. without charge), meeting the standards of approximate grade levels of the State education agency within the context of an individualized education program written with parental participation; and due process, including access to judicial review to determine that the State has complied with the Act and that the written individualized educational program is "reasonably calculated to enable the child to receive educational benefits," e.g. achieving passing marks and grade advancement.

Americans with Disabilities Act (ADA) excerpts
Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by state and local governmental entities, including public school districts. Under Title III the ADA also prohibits discrimination against students with disabilities in private schools that are considered public accommodations.

While private schools are not required to provide a free or appropriate education to students with disabilities (and by definition a private school cannot provide a public education), under the ADA they must take reasonable steps to ensure that students with disabilities have equal access to the private school's educational program. Many times this means changes to school rules, such as allowing a medically fragile child to carry a cell phone, permitting the use of tape recorders or laptop computers in class, or allowing a student with a movement disability extra time to walk between classrooms. A school might also provide auxiliary aids and services such as computer-aided transcription services, assistive listening devices for auditorium-based lectures, closed captioned decoders, open and closed captioning, TDDs, and videotext displays. A private school is not required to provide an auxiliary aid or service if the school can show that providing the service would fundamentally alter the program or require significant difficulty or expense, and under some circumstances they may charge extra for additional services. For example, if a school offers after-school tutoring to all students for an additional fee, they may charge the same fees to a disabled student who wants after-school tutoring.

Section 504 of the Rehabilitation Act of 1973
The Rehabilitation Act of 1973 established non-discrimination requirements for federal agencies and for State and local programs receiving federal assistance. The Act does not directly bar discrimination by individuals (as does the Americans with Disability Act, ADA), but rather operates indirectly and bars discrimination by the state and local recipients of federal assistance. Section 504 states that no otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." As a result of section 504, state public education programs began to be subject to federal non-discrimination requirements. Section 504 only requires that the school develop a plan for the child (unlike an IEP, which is a legally binding contact).