"Educational Performance"
- IDEA established in 1975 as Education for All Handicapped Children Act (EAHCA).
- [T]he IDEA and the enacting regulations provide leeway to the states in defining many of their terms and elaborating on the standard of FAPE. [But] Congress has articulated and reiterated certain fundamental goals underlying the IDEA that should inform the interpretation of its provisions. The purpose of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living" [20 U.S.C. § 1400]...It can be distilled from the above purpose statement...that the IDEA seeks to accomplish, inter alia, two particular goals: (1) provide equal access to free appropriate public education for children with disabilities; and (2) assist children with disabilities in achieving self-sufficiency in their lives after public school.
- The DOE has stated that all disabilities, except SLD, must "adversely affect [the child's] educational performance." Neither the IDEA nor the federal regulations define the terms “adversely affect” and “educational performance,” “leaving it to each State to give substance to these terms.” Only nine states (not Colorado) have defined "adversely affect" and/or "educational performance."
- It is highly relevant to point out that the Department of Education, in defining the disabling conditions listed in the IDEA, selected the word “educational” rather than the narrower term “academic” to modify “performance” in the federal regulations... [T]he plain meaning of the word “educational” seems to reference not only academic learning, but also social, emotional, and interpersonal development...The use of the broader word “educational,” rather than “academic,” is consistent with the purpose underlying the implementation of the IDEA: to “prepare [children with disabilities] for further education, employment, and independent living.”
- Additionally, the Office of Special Education Programs (OSEP), the division of the Department of Education charged with assisting states with the implementation of the IDEA, has provided guidance on how the term “educational performance” should be interpreted...OSEP has stated that an assessment of whether the child’s disability “adversely effects educational performance” must include consideration of “[nonacademic] as well as academic areas” and “the assessment is more than the measurement of the child’s academic performance.”
- Some courts have favored narrow and some have favored broad definitions of these terms.
- If the goal of the IDEA is to prepare children with disabilities “for further education, employment, and independent living,” 132then the skills required for those accomplishments must be both considered in the eligibility determination and supported through special education and related services for qualifying children with disabilities. Grades and academic performance alone do not prepare children, disabled or not, for accomplishing those goals. Accordingly, a broad construction of the term “educational performance,” as adopted by the First Circuit, is more consistent with the spirit and purpose of the IDEA.
"Adversely Affect"
- Since the phrase “adversely affect” is not specifically related to educational policy and curriculum and since there is no ambiguity in the federal regulations, Congress or the United States Supreme Court should establish a uniform interpretation that is consistent with both the plain language of the federal regulations and the inclusive spirit of the IDEA. Given its placement within the eligibility analysis (as a sub-element of the element that requires that the child have one or more of the enumerated disabilities 176 ), a broad construction of the term “adversely affect” would be most appropriate.
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