Scope of Education
Stacy Therese Cherry, J.D.
Congress enacted the Individuals with Disabilities Education Act, (“IDEA”), 20 U.S.C.§1401 et seq. with the intent to promote the education of individuals with disabilities by providing federal funds to states that comply with the federal statute. Board of Educ. v. Rowley, 458 U.S. 176, 179 (1982). Congress reauthorized the Individuals with Disabilities Education Improvement Act in 2004 (“IDEIA”), again emphasizing the need to ensure individuals with disabilities receive a free appropriate public education. 20 U.S.C. 1401 et seq.1 New Jersey receives federal funds under IDEIA and is therefore required to comply with the IDEIA’s requirements. See Lascari v. Bd. of Educ. of Ramapo-Indian Hills Reg. Sch. Dist., 116 N.J. 30, 33 (1989). To satisfy the requirements of the IDEIA New Jersey has adopted its own legislation and regulations for implementing special education services. See N.J.S.A. 18A:46-1 et seq. and N.J.A.C. 6A:14-1 et seq.
Under the IDEIA children with disabilities are entitled to a “free appropriate public education . . . designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. §1400(d); see Rowley, 458 U.S. at 181; Oberti v. Bd. Of Educ., 995 F.2d 1204, 1213 (3d Cir. 1993); Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 690-91 (3d Cir. 1981). A free appropriate public education (“FAPE”) requires that a school district provide “special education and related services” designed to meet the needs of a particular student and are in conformity with the IEP. 20 U.S.C. §1401(9);
Special education and related services require the consideration of needs that go beyond academic progress. As the Office of Special Education Programs specifically stated
A child’s educational performance must be determined on an individual basis and should include non-academic as well as academic areas.
Since the educational needs of a child with a disabling condition include non-academic as well as academic areas, the term ‘educational performance’ as used in the EHA-B means more than academic standards as determined by standardized measures.”
OSEP Policy Letter to Lybarger, 17 IDELR 54 (September 14, 1990).
The Office of Special Education Services further clarified that in determining a child’s specific needs the child
must be ‘assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status and motor abilities.’ 34 C.F.R. § 300.532(g).
OSEP Policy Letter to William, 33 IDELR 249 (March 24, 2000) (addressing the identification and evaluation of children with Asperger’s Syndrome). The letter goes on to describe developing an IEP for a child that
include[s] measurable annual goals, including benchmarks or short-term objectives related to meeting the needs that arise from the child’s disability, to enable the child to be involved and progress in the general curriculum, as well as meeting each of the child’s othereducational needs that result from the child’s disability. (emphasis added).
Id. As previously discussed, a child’s educational needs include academic and non-academic areas, necessitating an IEP that addresses both areas of need. See Letter to Lybarger, supra. Additionally, the related services necessary for any child are determined “on an individual basis by the child’s IEP team.” Letter to William. Accordingly, a child’s IEP must include related services, such as social skills training, which are not specifically identified in the IDEIA, but which are required for a child. Id.
New Jersey and other states have found that special education encompasses more than just academic progress. In East Windsor Regional Board of Education, K.V., a nine year old student with Asperger’s Syndrome, had strengths in academic and cognitive skills. 39 IDELR 208 (2003). In fact, K.V. was functioning at or above grade level in all academic areas. Id. Despite these academic strengths, K.V. displayed “significant weaknesses and delays in language and motor skills, and social development.” Id. K.V.’s needs resulted in recognition that a private school placement designed to address her non-academic needs was necessary. Id.
The Fifth Circuit has also recognized the importance of non-academic needs in providing an educational benefit. Specifically, the Fifth Circuit uses, as one prong of analysis, the demonstration of “positive academic and non-academic benefits” to determine if a child’s IEP is reasonably calculated to provide an educational benefit.Cypress-Fairbanks Independent School District v. Michael F. b/n/f/ Mr. and Mrs. Barry F., 118 F.3d 245, 253 (5th Cir. 1997). In Lewisville Independent School District, an academically gifted student was diagnosed with Asperger’s Syndrome. 35 IDELR 236 (Texas State Educ. Agency 2001). The hearing officer determined that the special education program offered by the district was not appropriate, in part, because non-academic benefits were not demonstrated. Id. The hearing officer concluded that the district failed to address social skills needs by not developing an appropriate behavior intervention plan. Id.
Recently, the Maine District Court, concurred with the importance of non-academic needs. The Court found that a student with Asperger’s Syndrome was eligible for special education and related services, even though she made excellent academic progress. Mr. and Mrs. I. v. Maine School Administrative District 55, 04-165-P-H (M.D.C. 2006). In reaching the decision, the court held that “educational performance” encompassed “not merely the acquisition of academic knowledge but also the cultivation of skills and behaviors needed to succeed generally in life.” Id.This decision was, in part, based on State curriculum goals addressing language, oral presentations, “responsible personal and social behaviors in physical activity settings,” career preparation including teamwork and handling change. Id. While the District Court based the decision, partially, on Maine’s curriculum goals New Jersey’s State Core Curriculum Content Standards address similar topics. Seehttp://education.state.nj.us/njsdb/ New Jersey Core Curriculum Content Standards: Health and Physical Education 2.4; Career Education and Consumer, Family, and Life Skills 9.1 and 9.2; Language Arts Literacy 3.4. Accordingly, New Jersey’s definition of “educational performance” must also include non-academic skills.
The most comprehensive discussion on the importance of non-academic needs comes from the California State Education Agency. See Burbank Unified School District, 40 IDELR 249 (California State Education Agency 2003). In the decision, the hearing officer found that the Burbank School District had not offered a free appropriate public education to a ninth-grade student with Asperger’s Syndrome. Id.The hearing officer stated that the
District’s offered placement is not designed to meet STUDENT’S unique needs because STUDENT’S social skills have not improved during the three years she attended the District’s social skills program, and therefore this program holds no promise for the future; the District’s Academy teacher does not have the appropriate qualifications to meet STUDENT’S unique needs; the District’s program does not offer a sufficient amount of social skills counseling; and the District’s proposed placement does not address STUDENT’S continued and growing anxiety caused by the stress of passing periods, teasing, and noise.
Id. The hearing officer then went on to state
[T]he District’s offered placement is not designed to meet STUDENT’S unique needs in the areas of social skills and behavior. The evidence presented at hearing established that STUDENT received little benefit from the three years of social skills counseling that she received at Jordan and that she would therefore receive little to no benefit from a continuation of this program at Burrough’s. In addition, the social skills program offered by the District at Burrough’s was not sufficiently intensive to meet STUDENT’S needs. Finally, the environment of Burrough’s high school is inappropriate for a student like STUDENT, who experiences significant anxiety during passing periods, lunch, and other periods where she is exposed to the general school population. Because appropriate social skills and behavior are essential in order for a student to benefit educationally, the Hearing Officer finds that the District’s offer was not reasonably calculated to provide STUDENT with educational benefit.
Id. The district’s failure to address these non-academic needs resulted in reimbursement for the parents’ unilateral placement at an appropriate program. Id.
Accordingly, a free appropriate public education includes the recognition of academic and non-academic needs including, but not limited to, social skills, language, and behavior. In addition, to provide a free appropriate public education a district must ensure that the student makes significant progress in each area of need, be it academic or non-academic.