Know Your Rights Under FAPE (Free Appropriate Public Education)
By Diana Simeon
Today, about two million students in the United States have been diagnosed as learning disabled and they’re guaranteed what is called a Free Appropriate Public Education (FAPE), thanks to the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA).
While most students with learning disabilities are identified by third grade, it’s not uncommon to be identified in middle school or sometimes even high school. And while the earlier a student gets help with a disability the better, it’s never too late to get a student on the path to educational success.
We asked Cleveland-area attorney Daniel M. Margolis, who has focused on education law for more than 15 years, for an overview of what parents should know.
1. Trust your instincts.
Students can struggle in school for a variety of reasons, and there isn’t one exact sign to indicate that your student may be struggling as a result of a learning disability. But if your student has ongoing difficulty with an academic area or skill — say, reading comprehension or memory skills — that could be a red flag. Parents should trust their instincts, stresses Margolis. “Nobody knows a child better than a parent, and there will be times when a parent will notice a change in a child over the course of a school year,” he notes. “They may also start hearing from a teacher that their child is acting out. Parents should key in on that and start asking appropriate questions.”
Every child in the United States is guaranteed what’s called a Free Appropriate Public Education (or FAPE). That means that if a student has any kind of disability, a school must provide whatever services he needs to be successful. “It doesn’t matter how profound the disability is,” explains Margolis. “This is something that is absolutely guaranteed to every child, and the public school district in which the family lives is responsible for providing that education.” Students with identified disabilities — learning or something else like a physical challenge or ADHD — should have either an Individualized Education Program (IEP) or a 504 Plan.
3. Ask for an evaluation.
Ideally, the request for an evaluation — which includes reviewing a student’s record, as well as observations, testing, and interviews — will come from your student’s school. “But sometimes the onus is on the parent to say to the school district, ‘My child needs to be evaluated for these reasons.’” Parents have a legal right to request an evaluation for their student, under the Individuals with Disabilities Education Act (IDEA). Note that this applies only to public schools; private schools are generally not legally obligated to evaluate or provide services for students with disabilities.
4. Know when to get legal help.
Unfortunately, there can be times when parents find that a school district is resistant to providing the services the parents believe their child needs. When it happens, it’s typically a student with a severe disability who requires an exceptional level of service, sometimes at a specialized school, for which the district must pay. “This is where the struggle becomes very real and litigation can ensue,” explains Margolis. “For example, there are times when it’s better to educate a child with autism in a setting that is specially developed for children with autism, but costs upwards of $100,000 a year. Oftentimes, school districts will say, ‘We don’t need to spend that kind of money.’ So that is where there will be a struggle between the parents and the school and legal help may be required.”
MIDDLE SCHOOL MAKEOVER: Improving the Way You & Your Child Experience the Middle School Years
Download a copy of 2 FREE chapters of Middle School Makeover.
RELIEF IS HERE. Middle School Makeover is a guide for parents and educators to help the tweens in their lives navigate the socially fraught hallways, gyms, and cafeterias of middle school.
This book helps parents, teachers, and other adults in middle school settings to understand the social dilemmas and other issues that kids today face.