Editors note: During the production of the April issue Te Endrew F. v Douglas County School District supreme court case was decided in a unanimous 8-0 ruling in favor of Endrew F. Read a legal analysis from Peggy A. Burns, Esq. in May.


FIRST TAKE What’s the True Meaning of FAPE? WRITTEN BY RYAN GRAY | RYAN@STNONLINE.COM R


iding the school bus is largely a privilege and not a right. Many states spell this out in their regulations. However, the Individuals with Disabilities Education Act (IDEA) mandates


the related service of transportation as a right of certain students to receive a free and appropriate education, or FAPE, based upon their needs as related in their In- dividualized Education Program. Likewise, Title I and the McKinney-Vento Homeless Assistance Act mandate that schools provide transportation service for low-in- come and at-risk students. Otherwise, local school districts for the most part


provide school busing as a free add-on service for the safety of students and the benefit of the community, in all the ways espoused by the American School Bus Council, especially when students live outside of a specified walking distance from home to school or encounter hazardous walking routes in between. Given the fact that the federal government, states and safety experts widely and correctly agree that there is no safer mode of transportation for students than the yellow bus, it’s often in the best interest of school districts to offer school busing to its general education population because transportation service ensures students are in class, and counted toward state aid. But as a certain duck on television might say, “Except when they don’t, because then they won’t.” Transporta- tion is often viewed as too expensive or at least funneling away much-needed classroom dollars, despite accounting for less than 5 percent of most district-wide budgets. Te new reality is an ever-growing list of school districts


are only providing transportation when and where they must. School transportation is becoming a specialized form of service that was already special to begin with. But how much more special should school busing be? Tat’s a question the U.S. Supreme Court is expected to address this year. In January, SCOTUS heard the case of Endrew F. v. Douglas County School District, which seeks to answer a fundamental question: What exactly constitutes FAPE? Endrew’s parents want reimbursement from the public-school district for sending their son to a private school that specializes in educating students on the autism spectrum. Tey claim that Endrew was not pre- viously receiving a quality public education, one with demonstrated and measurable improvement. Instead,


12 School Transportation News • APRIL 2017


they claim he was receiving an educational benefit that was barely more than nothing. Legally speaking, this is referred to as “de minimis,” as


was ruled by the Supreme Court in the 1982 case Board of Educ. v Rowley. Tis is where we got the interpretation of a “Chevy vs. Cadillac.” Te Court ruled that school districts need only to offer “a basic floor of opportunity” rather than to maximize a child’s potential. Six other U.S. Circuit Courts, including the 10th in


Endrew F., have since applied “de minimis” to similar cases on FAPE. Two other U.S. appeals courts, however, ruled that a trivial educational benefit is substandard. Essentially, the argument before the Court follows: Is it morally right to apply different degrees of federal pro- tection to students with disabilities based solely on where they live? And if the Chevy isn’t working, who’s going to pay for the Cadillac? Students must show reasonable progress based on their ability, says IDEA, so is doing more than nothing enough? What does this all have to do with transportation, you ask? Consider the Least Restrictive Environment, anoth- er major tenet of IDEA. Student transporters have long worked under the premise that LRE, to the maximum extent appropriate for that student, means transporting students with disabilities in the same manner, for the same length of time and on the same or similar vehicle as their general education peers. Although school districts often specify door-to-door serve for younger children, IDEA stresses the need for schools to prepare students for post-K-12 education, often involving increased expectations as students grow older, in accordance with their capabilities. Te child advocate in all of us should hope that


SCOTUS raises the bar on education of students with disabilities because it’s the right thing to do. But we must also recognize that doing so could result in unintended consequences of more expensive and specialized trans- portation service. And if the Court does raise the bar, what could that mean if current congressional legislation passes that makes no mention of IDEA or FAPE in rewrites of the federal education bill, not to mention po- tential cuts to education programs in favor of vouchers? Tese are questions we all should—no, must—raise. ●


Ryan Gray, Editor-in-Chief


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