November 20, 2019 | Blog, IDEA, Special Education, Students

Just When a District Thinks it is Done with a Student, FAPE Still Applies

Victoria Elliott

A school district was found to have denied FAPE to a student when it failed to provide any IDEA services after the student was expelled from school for attacking another student.

What is FAPE, under IDEA?

Under IDEA, a free appropriate public education (FAPE) is special education and related services that:

  • Are provided at public expense without charge;
  • Are under public supervision and direction;
  • Meet the standards of the TEA;
  • Include an appropriate preschool, elementary, or secondary education in Texas; and
  • Are provided in conformity with the legal requirements of an IEP.

When does FAPE apply, under IDEA?

Under IDEA, FAPE applies to all children residing in the state aged 3-21, who are eligible for special education and related services.

Does FAPE still apply after a student is expelled or suspended, under IDEA?

Under the IDEA, the state must ensure that FAPE is made available to all children residing in the state between the ages of 3-21, including children with disabilities who have been suspended or expelled from school. Further, a school district is not relieved of the obligation to provide FAPE to a student who is expelled or suspended based on a district’s claim of difficult or near impossible means of finding a placement for the student.

In Schiff v. District of Columbia, a student was expelled from his nonpublic school after attacking a medically fragile student.  After the student was expelled, the District contacted ten different nonpublic schools in an effort to find a placement for the student.  However, every school contacted refused to take the student.  Based on this perceived impossibility of finding a new placement, the District believed that it was relieved of its duty to provide FAPE and threw in the towel.

The District of Columbia’s State Education Agency initially agreed with the District.  However, that administrative decision was appealed and ultimately reversed by the U.S. District Court. In adopting a federal magistrate judge’s report and recommendation, the Court explained that the “defense of impossibility” does not apply to IDEA’s express requirement that districts provide FAPE to students with disabilities who have been suspended or expelled from school.  Further, the Court rejected a novel argument for adopting the doctrine of “unclean hands” (i.e., the student’s behavior created the difficulty in finding a placement option and therefore let the District off the hook), explaining that accepting this argument would undermine the very purpose of IDEA because the manifestation of a disability cannot be the basis for the deprivation of a FAPE.

Therefore, districts need to ensure that they are providing FAPE to students, even when the student is expelled or suspended because of their own behavior. If your district finds itself confronted with a situation like this or other special education matters, the attorneys at Leasor Crass are ready to help.

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