Is it Time for Elevating the Standard for FAPE under IDEA?

Abstract

This article examines a critical question for the special education community: What should be the current meaning of “free appropriate public education” (FAPE) in light of not only the Supreme Court's landmark Rowley decision in 1982 but also developments in the 30 years since then? After synthesizing what the Rowley Court, the scholar-commentators, and the post-Rowley lower courts have said, the author examines the latest answer from Congress via the 2004 Individuals With Disabilities Education Act amendments. Particular attention is paid to the provision concerning peer-reviewed research and the recent case law interpreting this provision. The author suggests that the time is ripe for the special education community to help Congress fashion an appropriately heightened substantive or at least procedural standard for FAPE.