In two seminal special education cases heard by the U.S. Supreme Court, Board of Education v. Rowley (1982) and Endrew F. v. Douglas County School District (2017), the High Court fashioned a two-part test that hearing officers and judges were to apply to the facts of the case when determining if a school district provided a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA). The two-part test, which was developed in Rowley and clarified in Endrew F., is as follows:
Part one: Has a school district adhered to the procedural requirements of the IDEA? The first part of the test was from the Rowley ruling. In this part of the test, the hearing officer or judge determines if the school district followed the numerous procedures of the IDEA (e.g., membership of an IEP team, required components of an IEP).
Part two: Was a student’s IEP reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances? The second part of the test, which is the substantive or educational benefit component, is from the Endrew F. ruling. Whether a school district meets this standard of FAPE requires an examination made of the likely or actual results of a student’s IEP (Zirkel, 2017).
In addition to the procedural and substantive requirements of the IDEA, there is also a third area that is important for school personnel to adhere to when conferring a FAPE: Implementing a student’s IEP as agreed upon by the IEP team. Although only a few circuit courts have examined the issue of a school district’s failure to implement a student’s IEP, and the U.S. Supreme Court has not examined head a failure to implement case, it is a very important area of which school district personnel need to be aware.
The primary assertion parents have made in failure to implement cases is that a school district denied their child a FAPE because the district failed to implement a portion or perhaps all of their child’s IEP. The positions the courts have been taking is that when a school district fails to implement an important or material part of the IEP, the district may be in violation of a student’s right to a FAPE, even in situations when the IEP was procedurally or substantively correct. In 2017, in a case out of the U.S. Court of Appeals for the 9th circuit, the court cautioned that “an IEP, like a contract …embodies a binding commitment and provides notice to both parties as to what services will be provided to the student during the period covered by the IEP (M.C. v. Antelope Valley Union High School District 2017, p. 1197). The IEP is not like a contract in that it is not a guarantee of results but it is like a contract in that school district personnel are guaranteeing to provide certain special education and related services to a student. To the extent that a school district failed to provide the services as agreed upon in the IEP, that could be a denial of FAPE.
Perhaps the most significant case to address a school district’s failure to implement a student’s IEP was Van Duyn v. Baker School District 5J (2007). The case was heard in the U.S. Circuit Court of Appeals for the Ninth Circuit, which comprises the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, and Washington. The approach this circuit court took to ruling on the school district’s failure to implement a student’s IEP has been termed the “materiality-alone approach” (Zirkel, 2017). In a 2 to 1 ruling, the court found that ), a material failure to implement “occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP” (p. 822). Thus, when a school district commits such an error, it is likely they have denied a student a FAPE.
Other U.S. Circuit Courts of Appeal, including the fourth circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) in Sumter County School District v. Heffernan (2011) and the eighth circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) in Neosho School District v. Clark (2003) have also used the materiality-alone standard when addressing failure to implement. In the most recent ruling out of the U.S Courts of Appeals for the Eleventh Circuit, L.J. v. School Board of Broward County, Florida (2019) asserted that “A material implementation failure occurs only when a school has failed to implement substantial or significant provisions of a child’s IEP” (L.J., 2019, p. 1211).
What do these decisions mean for special education teachers? A material or substantial failure to implement a student’s IEP will likely be a FAPE violation. Examples of such failures could include (a) not implementing a student’s behavior intervention plan, (b) failing to provide special education services, related services, supplementary services, or program modifications that were included in a student’s IEP, (c) providing fewer hours of services that were included in a student’s IEP, and (d) delaying the implementation of an IEP.
It is likely that Congress, the U.S. courts of appeals for the various circuits, and possibly the U.S. Supreme Court will eventually hear a FAPE case regarding a school district’s failure to implement a student’s IEP. In the meantime, school districts should adhere to the U.S Circuit Court of Appeals for the Ninth Circuit’s assertion that an IEP embodies a binding commitment between school-based personnel and a student’s parents. School district officials need to ensure that the special education services included in a student’s IEP be implemented as agreed upon.