FMG Education Law Blog Series: Special Education Issues Facing Schools in the COVID-19 Era


By: Candice Jackson and Tia Combs

** This is the inaugural post in Freeman Mathis & Gary’s new Education Law Blog, beginning with a series addressing special education topics. **

Part 1: “Basics of FAPE: The Cornerstone of Special Education Requirements”

The Individuals with Disabilities Education Act (IDEA), originally passed as the Education for All Handicapped Children Act in 1975 (renamed IDEA in 1990), requires all public school districts to provide a “free appropriate public education” (FAPE) to students with disabilities.

Providing FAPE is central to a public school’s responsibility to educate students with disabilities. Most administrative complaints and lawsuits against school districts by parents of special education students involve FAPE. Remedies for special education children and their parents under the IDEA may not include monetary damages, but it can nonetheless be expensive for school districts to cure denials of FAPE. Remedies may include providing compensatory education (often consisting of one-on-one tutoring), reimbursement for private school tuition, and reimbursing the parents’ attorneys’ fees. A denial of FAPE may also violate Section 504 of the Rehabilitation Act, under which a private lawsuit can result in money damages.

The U.S. Department of Education (ED) administratively enforces the IDEA and Section 504. Agency investigations into denial of FAPE complaints by ED’s Office for Civil Rights (OCR), under Section 504, can be protracted, burdensome, and involve years of monitoring of a school district by ED. Systemic failures to meet FAPE requirements under the IDEA can lead to determinations of noncompliance by ED’s Office of Special Education Programs, resulting in conditions, restrictions, or limitations imposed upon, or even termination and recovery of, federal funds provided to the state.

Understanding the basic contours of providing FAPE is key to school districts meeting their special education obligations and avoiding expensive litigation and regulatory investigations.

What is FAPE?

The first word in the acronym, “free,” is pretty straightforward: the education and related services must be provided at no cost to the student with a disability or his or her parents or guardians, except for any fees that are equally imposed on students without disabilities.  

It’s the second word in FAPE – “appropriate” – is the most frequently litigated. Generally, an appropriate education for a student with a disability must be a specialized academic curriculum and special education-related services, designed to meet the individual student’s needs. This may include educating the student in regular classes, or in regular classes with the use of aids and services, or placing the student in separate classes for all or part of the school day. Appropriate education may include specially designed instruction in classrooms, at home, or in public or private institutions, with related services such as speech therapy, occupational and physical therapy, psychological counseling, and medical diagnostic services necessary to further the child’s education.

While placement outside a regular class setting may be appropriate for some students based on their individual circumstances, students with disabilities must be placed in the “least restrictive environment” (LRE), with a presumption that the LRE is in the regular education environment. That is, students with and without disabilities presumptively must be placed in the same environment for both academic and nonacademic programs (class instruction, lunch and recess, physical education, etc.) unless the school demonstrates that the student with a disability’s needs cannot be met in that setting even with supplementary aids and services (such as interpreters for students who are deaf, readers for students who are blind, or door-to-door transportation for students with mobility impairments). This might also include modifications to curricula.

When a LRE is with a facility not operated by the school district itself (such as a different public school district, a charter school, a private school, or an institutional facility), the school district remains responsible for the non-medical costs of such an alternate placement (including transportation to and from the placement location) and for ultimately ensuring that the child with a disability is receiving FAPE.

A critical part of the IDEA (and to a less-detailed extent, Section 504) is the procedural rights granted to students with disabilities and their parents designed to implement provision of FAPE. Schools must design an individualized education plan (IEP) specifying the special education services to be provided to the student, and parents have rights to participate and be notified at all phases of developing, modifying, and implementing their child’s IEP.

Parents may file administrative due process complaints concerning any aspect of their child’s IEP and, if administrative remedies are exhausted, may file private lawsuits under the IDEA. Section 504 doesn’t contain an exhaustion requirement, but the Supreme Court’s “Fry rule” may effectively preclude a private lawsuit where administrative remedies haven’t been exhausted if the gravamen of the lawsuit is FAPE. However, parents can file a complaint with OCR under Section 504, resulting in many of the same remedies for denial of FAPE as in a private lawsuit, with the exception of recovery of attorneys’ fees or money damages.

How have standards for what meets the FAPE requirement evolved over the 40 years since FAPE was introduced as a legal obligation?

For thirty-five years, the only Supreme Court pronouncement about what FAPE means was the 1982 decision, Bd. of Educ. v. Rowley.  In Rowley, the Supreme Court held school districts “satisfy the FAPE requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” The Supreme Court rejected the contention that a school needed to maximize the potential of students with disabilities commensurate with the opportunity provided to students without disabilities.

Under Rowley, a student’s IEP developed in compliance with the IDEA had to be “reasonably calculated to enable the child to receive educational benefits.” Rowley thus set a compliance floor in terms of what an IEP must accomplish for FAPE to be provided, but not a ceiling. In the decades following Rowley, a split among the federal circuit courts emerged as courts applied the Rowley test differently. Some federal courts held that a school met the FAPE requirement so long as the school provided a student with an education that was “merely more than a de minimis” educational benefit. Other federal courts insisted that the educational benefit provided under an IEP must be “meaningful” and not merely “trivial” or a “gesture.”

In practice, most states and school districts strove to meet the higher “meaningful” standard rather than settle for the “merely more than de minimis” standard. This effect was bolstered by the fact that OCR interpreted its Section 504 regulations about FAPE to compare the education of students with disabilities to the education provided to students without disabilities. Similarly, ED’s Office of Special Education and Rehabilitative Services’ IDEA regulations interpreted the IDEA as requiring an IEP designed to allow the student with a disability to make progress in “the same curriculum as for nondisabled students.”

Additionally, the Elementary and Secondary Education Act of 1965 (ESEA) as amended by the No Child Left Behind Act of 2001, required states to apply the same academic content and achievement standards to all students, including students with disabilities, and ED regulations under Title I of the ESEA clarified that grade-level standards must apply to students with disabilities. Many states had thus incorporated standards-based IEPs that included goals reflecting the grade-level academic content standards that apply to all students in the state.

So, even in states where federal courts judged schools by a lower standard with respect to meeting FAPE requirements pursuant to Rowley, ED had already begun to evaluate schools across the nation more rigorously.

In 2017, the Supreme Court again weighed in on FAPE. In Endrew F. v. Douglas Co. Sch. Dist., the Supreme Court clarified that the educational benefit a school provides to a special education student must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Supreme Court emphasized that “this standard is markedly more demanding than the merely more than de minimis test” used by several federal circuit courts interpreting Rowley because the latter is no “education at all.” Once again, however, the Supreme Court stopped short of adopting an even higher standard that would require schools to provide an educational program designed to equal the opportunities provided to students without disabilities.

Endrew F. made it clear, nationwide, that a student’s IEP must be “appropriately ambitious” by setting challenging objectives and goals that enable the individual student with a disability to make appropriate progress in light of his or her unique circumstances. Under Endrew F., a student’s progress under his or her IEP is measured against the student himself or herself, not against the progress being made by other students (with or without disabilities). It is noteworthy, however, that ED continues to view FAPE by comparison to what children without disabilities are being provided.

Has the Endrew F. decision changed the FAPE landscape?

Not as much as one might think. In about half the country, federal courts had already been holding schools to a “more than mere de minimis” standard in private IDEA lawsuits, and ED had already been administratively enforcing the IDEA, Section 504, and the ESEA to require grade-level, challenging academic curricula goals and progress in IEPs for children with disabilities.

The subtle but significant shift between Rowley and Endrew F. has been less emphasis now on providing an educational benefit (whether de minimis, or meaningful) and more emphasis on aiming for appropriate progress of the student with a disability. This means that the biggest impact of Endrew F. has probably been outside of court, when parents are interacting with a school and their child’s IEP team and can use the Endrew F. decision to emphasize the importance of setting meaningful, challenging annual goals in the IEP that are annually reviewed and measured to track the student’s progress.

This also means that lawsuits across the country can proceed when there’s a dispute about how much progress has been aimed for and achieved for an individual student, and resolving those disputes is more complicated than simply analyzing whether or not the school provided some benefit to the student.

What’s next?

At least one study of IDEA litigation in the three years since Endrew F. reports that little has changed in the number or type of FAPE claims against school districts. However, Endrew F. barely had time to trickle down and impact IDEA federal lawsuit trends when the COVID-19 pandemic dramatically altered provision of educational programs, activities, benefits, and services for all students – including students with disabilities. Endrew F. spurred renewed attention to the content and effect of students’ IEPs. The global pandemic has raised yet more questions about how to design and implement IEPs in order to provide FAPE.

Now that we’ve tackled the basics of FAPE, our next blog in this series will examine how schools, states, ED, and courts have grappled with FAPE requirements during the first year of COVID-19, including questions about substitution of remote learning for in-person instruction, alternate placement obligations during public school closures, and the obligation of schools to review and implement IEPs during school closures.

Our third and last blog in this series will discuss the road ahead for school districts when it comes to providing FAPE against the backdrop of long-term changes COVID-19 has wrought on American education, including hybrid distance learning models, and learning losses resulting from the pandemic.

For more information about this topic, please contact Candice Jackson at or Tia Combs at