After distinguishing the development of “failure to implement” (FTI) the individualized education program (IEP) as a third dimension beyond the procedural and substantive dimensions of FAPE (free appropriate public education)… Click to show full abstract
After distinguishing the development of “failure to implement” (FTI) the individualized education program (IEP) as a third dimension beyond the procedural and substantive dimensions of FAPE (free appropriate public education) first established in Board of Education v. Rowley, this article provides a comprehensive yet concise synthesis of the three approaches to FTI. More specifically, the first section summarizes the materiality/benefit approach, which—like the two-step approach for procedural violations but on a more intertwined basis—requires both a substantial, or significant, FTI and an insufficient benefit. The second section traces the materiality-alone approach, which requires only a substantial failure. The third section demarcates the per se approach, which finds a denial of FAPE for any FTI beyond one that is clearly de minimis or negligible. After a summary overview, the final section advocates the per se approach as the appropriate policy, whether as a matter of Congressional or judicial adoption.
               
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