What is the True Meaning of FAPE?

Riding the school bus is largely a privilege and not a right. Many states spell this out in their regulations. However, the Individuals with Disabilities Education Act (IDEA) mandates the related service of transportation as a right of certain students to receive a free and appropriate education, or FAPE, based upon their needs as related in their Individualized Education Program. Likewise, Title I and the McKinney-Vento Homeless Assistance Act mandate that schools provide transportation service for low-income and at-risk students.

Otherwise, local school districts for the most part provide school busing as a free add-on service for the safety of students and the benefit of the community, in all the ways espoused by the American School Bus Council, especially when students live outside of a specified walking distance from home to school or encounter hazardous walking routes in between.  

Given the fact that the federal government, states and safety experts widely and correctly agree that there is no safer mode of transportation for students than the yellow bus, it’s often in the best interest of school districts to offer school busing to its general education population because transportation service ensures students are in class, and counted toward state aid.

But as a certain duck on television might say, “Except when they don’t, because then they won’t.” Transportation is often viewed as too expensive or at least funneling away much-needed classroom dollars, despite accounting for less than 5 percent of most district-wide budgets.

The new reality is an ever-growing list of school districts are only providing transportation when and where they must. School transportation is becoming a specialized form of service that was already special to begin with. But how much more special should school busing be? That’s a question the U.S. Supreme Court is expected to address this year. In January, SCOTUS heard the case of Endrew F. v. Douglas County School District, which seeks to answer a fundamental question: What exactly constitutes FAPE?  

Endrew’s parents want reimbursement from the public-school district for sending their son to a private school that specializes in educating students on the autism spectrum. They claim that Endrew was not previously receiving a quality public education, one with demonstrated and measurable improvement. Instead, they claim he was receiving an educational benefit that was barely more than nothing.  

Legally speaking, this is referred to as “de minimis,” as was ruled by the Supreme Court in the 1982 case Board of Educ. v Rowley. This is where we got the interpretation of a “Chevy vs. Cadillac.” The Court ruled that school districts need only to offer “a basic floor of opportunity” rather than to maximize a child’s potential.

Six other U.S. Circuit Courts, including the 10th in Endrew F., have since applied “de minimis” to similar cases on FAPE. Two other U.S. appeals courts, however, ruled that a trivial educational benefit is substandard.

Essentially, the argument before the Court follows: Is it morally right to apply different degrees of federal protection to students with disabilities based solely on where they live? And if the Chevy isn’t working, who’s going to pay for the Cadillac? Students must show reasonable progress based on their ability, says IDEA, so is doing more than nothing enough?

What does this all have to do with transportation, you ask? Consider the Least Restrictive Environment, another major tenet of IDEA. Student transporters have long worked under the premise that LRE, to the maximum extent appropriate for that student, means transporting students with disabilities in the same manner, for the same length of time and on the same or similar vehicle as their general education peers. Although school districts often specify door-to-door serve for younger children, IDEA stresses the need for schools to prepare students for post-K-12 education, often involving increased expectations as students grow older, in accordance with their capabilities.  

The child advocate in all of us should hope that SCOTUS raises the bar on education of students with disabilities because it’s the right thing to do. But we must also recognize that doing so could result in unintended consequences of more expensive and specialized transportation service. And if the Court does raise the bar, what could that mean if current congressional legislation passes that makes no mention of IDEA or FAPE in rewrites of the federal education bill, not to mention potential cuts to education programs in favor of vouchers?

These are questions we all should—no, must—raise.

Editor's Note: Shortly after going to press with our April issue, the Supreme Court ruled unanimously with an 8-0 vote that IDEA requires a higher standard of education for students with disabilities. Read a legal interpretation of the decision and what it means to student transporters in our May magazine issue.

Reprinted from the April 2017 issue of School Transportation News magazine.

Last modified onFriday, 14 April 2017 17:10