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What do I need to prove lack of FAPE?

Boston, MA |
Filed under: Education law

My child is in high school and has a diagnosed languaged based learning disability. The school was insitent on using grades as the goal measurement. The report card shows failing or failed grades in all major classes. The progress report raves about all the progress student is achieving. How one makes progress but the grade average goes down is beyond me.

At any rate, the school is pushing back with every ridiculous trick in the book. First it was the wait an see approach, then it was the he doesn't really have a disability approach, it is almost Feb. and he is just not getting services after.

If the burden of proof is on parents, what is good documentatins other than emails, letters re: meetings & phone class. Student also has two private evals re-stating LBLD.

Attorney Answers 2


You have not included enough facts in your question, but I can tell you need an educational lawyer.

Some of the best documentation will come from your independent observations in the classroom, and those of your evaluators. You also will need the data that is being collected in the clasroom. You will need to plot out which prong of denial of FAPE each document serves to prove. Some will go towards denial, some will go towards the failure to make adequate acaedmic progress, that in turn will go towards appropriateness of the current placement.

Lastly, you will need some luck prooving denial of FAPE is a great burden. Engaging an advocate or educational lawyer will help you marshal the facts so that a due process may be filed.

Ask your self in advance, what remedy do you want the Independent Hearing Officer to grant you? You will need to list this in your prayer for relief. Check out the resources available at or

Good luck and vote this answer up if you found it helpful

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I have been working in the special ed. field for the last ten years. To date, this is the first school that has refused to make any kind of concessions. They have a reputation for driving student with disabilities out because they ruin their reputations as a public school with high-test scores. I have two private evals and am investigating a third that would include classroom observations. The ultimate ideal would be placement at a school such as Landmark in Beverly, MA. However, that requires brining in the sending school, which would then want to try their own programs. The student is too old for the wait and sees approach. I am disgusted by the behavior the school is putting forth. It is obviously about money and test scores, nothing more, and nothing less. Thanks again for the response, much appreciated.

Todd Bruce Kotler

Todd Bruce Kotler


Have the indedpendent evaluators conducted observations in the current placement? I consider that key in making a pursausive argument as to appropriateness (the A in FAPE)


You did not provide many facts, but I presume your child already already has an IEP. (It sounded like the school perhaps was denying special education eligibility.) Assuming the child has an IEP, if you are correct that the IEP specifies grades as the measure of goal achievement, then right there you have a pretty good argument about lack of progress even in the face of more rosy progress reports. If I were you I would not protest the low grades as those teachers have done you a favor with their honesty. More times than not, I have seen "inflated" grades so that the grades match the progress reports.

Have you presented your private evaluations to the Team? If you have not done so, and you present them to the school now, they have to reconvene the Team. You can ask the same question you are posing here: "How can one make progress while the grade average is going down?" Be prepared to have the school blame your child and to blame the home environment for your child's poor grades. Rather than argue about this, merely take notes of what the school staff said. A parent's conduct at Team meetings does count. Remember that FAPE is really a measure of progress in education consistent with cognitive potential. So, if your child has a language based ld and is of average intelligence and is still doing poorly, the conclusion you want to reach is that the child is receiving inadequate services. Another good measure of real progress is to compare a current evaluation's results with one done years earlier. I like Attorney Kolter's carefully planned approach to proving the elements of your case.

These cases many times are decided based on a battle of experts. You should seek legal counsel and/or an education advocate to assist you.

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