Legal Memorandum: Determination of an Appropriate FAPE

Issue: In a summary decision motion, what must parents allege in a due process petition to allege a school board has failed to provide a child with Free Access to Public Education (FAPE)?

            Determination of an appropriate FAPE depends on the IEP.  See Lascari v. Bd. of Educ. of Ramapo Indian Hills Reg. High Sch. Dist., 116 N.J. 30, 46 (1989) (“[I]n determining whether an IEP was appropriate, the focus should be on the IEP actually offered and not on one that the school board could have provided if it had been so inclined.”); Florence County Sch. Dist. v. Carter, 510 U.S. 7, 14 (1993) (“Parents’ failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement.”); D.C. & J.P. o/b/o K.C. v. Lawrence Township Bd. of Educ., OAL Dkt. No. EDS 50-04 (Dec. 29, 2004) (granting tuition reimbursement for a unilateral parental placement at the Lewis School); Shrewsbury Borough Bd. of Educ. v. R.S. & M.S. o/b/o R.S., OAL Dkt. No. EDS 297-10 and EDS 366-10 (Aug. 17, 2010) (approving placement at the unaccredited Craig School). 

A parent’s claim that a particular board has failed to develop an IEP for which tuition reimbursement is demanded sufficiently pleads a denial of FAPE.  See PUPIL v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 264 (3^rd Cir. 2003) (“[A]n Individualized Education Program (IEP) is the primary vehicle for providing students with the required free and appropriate education.”); Shore Reg. High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3^rd Cir. 2004) (To avoid paying private […]