What Does “Appropriate” Really Mean?
by Brice Palmer
[NOTE: Register for the Webinar on Thursday July 16, 2005 7:30 PM] The question about what the word appropriate means in the IDEA is one of the most important questions you can ask.
The fundamental concept of the word appropriate is- compared to what?
How do we know how to compare (in the IDEA) what is appropriate and what is not appropriate (inappropriate)?
Let me disclose again that I am not an attorney and I am not a legal scholar by any stretch of the imagination.
Answering our question about what does the word appropriate mean in the IDEA must begin with something called statutory interpretation. Don’t panic. It isn’t as scary as it sounds.
Statutory interpretation is the process courts use interpret and apply legislation. Interpretation is sometimes necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning.
There are instances, though, that some ambiguity or vagueness in the words of the statute require a hearing officer or judge to resolve the ambiguity.
Hearing officers and judges use various tools and methods to interpret language in a statute. Some of those tools are long standing principles and rules of statutory interpretation, legislative history, and purpose. In the courts in the U.S., judges may apply rules of statutory interpretation to legislation passed by the legislature or is delegated legislation. Delegated legislation can be in the form of administrative agency regulations.
We touched on this subject earlier in this series of INCIID articles.
Assume, for example, that a statute requires that cell phone use while driving a motor vehicle is a violation of the state motor vehicle code. If the statute (code) does not define the term “motor vehicles”, then that term will have to be interpreted if questions arise in a court of law.
In an earlier INCIID article we did this exercise when the question was whether a snowmobile is (in the state in question) defined as a motor vehicle. In that hypothetical Bubba was driving his snowmobile on a city street, was pulled over and given a ticket for talking on his cell phone while driving a motor vehicle. In our hypothetical the state motor vehicle code did not include snowmobiles in the definition of a motor vehicle.
The question for us is “what does the word appropriate” mean in the IDEA?
The IDEA itself tells us what appropriate means. If we can prove the IDEA defines the word appropriate we can take comfort in a few US Supreme Court decisions that tell us we are on the right track.
“We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:” Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980).
“[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249 (112 S.Ct. 1146, 117 L.Ed.2d 391). And, “[w]hen the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ Connecticut National Bank v. Germain, (1992)” 503 U.S. 249, 254.
The US Supreme Court recently decided two cases in which statutory interpretation and constitutional (language) interpretation was a big deal. I mention these two decisions because lawyers and scholars will study, write, and debate these two decisions for decades. Although the subject of each of the cases are different, the cleft between the majority opinions and the dissenting opinions are wide and woolly.
King v Burwell, 576 U.S. ___ (2015)
Question presented (to the Court):
Section 36B of the Internal Revenue Code, which was enacted as part of the Patient Protection and Affordable Care Act, authorizes federal tax-credit subsidies for health insurance coverage that is purchased through an “Exchange established by the State”
The question presented was whether the Internal Revenue Service may publish regulations to also extend the tax-credit subsidies to insurance coverage bought through Exchanges established by the federal government. In this case, even the meaning of a capital S or a lower-case s received a great deal of attention.
Obergefell v.Hodges, 576 U. S. ____ (2015)
Two questions presented:
1. Whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex.
2. Whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.
You can read both of these decisions at http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/ and http://www.scotusblog.com/case-files/cases/king-v-burwell/
The legal literature and case decisions on statutory interpretation is enormous and goes back several centuries – way before there was a United States.
Still, we meeting navigators must have a way to come to a reasoned decision about what is and what is not appropriate in an IEP.
The unfortunate problem is that we assume we know what is or is not appropriate. It also seems many school district people also assume they know what appropriate means.
It is also true that (in my experience) parents often have a keen instinct about what is and what is not appropriate in their child’s IEP. The problem, though, is many of them do not know how to prove their intuitive conclusion. And without being able to prove it, they lose.
This magic formula will help you know when someone pulls the old switcheroo about what is or is not appropriate for your student.
What does the IDEA statute say? Remember from the discussion earlier that we should not read a section of a statute isolated from the context of the whole act? And that when a court interprets legislation it must not be guided by a single sentence or part of a sentence? And the court (and us) should look to what the whole law provides as well as the legislation’s object and policy? (Paraphrased from Richards v. United States, 369 U.S. 1, 11 (1962).
Begin at the beginning.
The IDEA begins with the Act, which Congress wrote and passed. The Act is the Individuals with Disabilities Education Improvement Act of 2004. You will find the congressional purpose of the law and other important information about what Congress (the legislature) intend the IDEA to be and do in the Act.
The Act is then put into statutory law, which is located at 20 U.S.C. 1400. You can find it here: https://www.law.cornell.edu/uscode/text/20/chapter-33
The US Department of Education then writes regulations that implement the statutes. The regulations are located in the Code of Federal Regulations (CFR) Chapter III. You can find it here: https://www.law.cornell.edu/cfr/text/34/chapter-III
Do you need all of that information for your day-to-day dealings with the school district?
No, but knowing where you can find it is important when you need it.
For analyzing FAPE, we begin with the definitions at 20 USC 33 §1401.
20 USC 33 33 §1401 (9) Free appropriate public education
The term “free appropriate public education” means special education and related services that-
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414 (d) of this title.
Read this carefully. Do not look at it and say sure, I’ve seen that before.
Read each line. If any sub part (A through D) is not met you may be looking squarely in the eye of a denial of FAPE. For example, we all know the F in FAPE means free. But read (A) again – Free is just one of three separate parts of (A).
Read (B). Have you looked at your State’s learning standards? So far I have not found one State’s learning standards that exempt students who have an IEP or FAPE under a 504 plan.
To me, appropriate for a specific student means each element of the definition of FAPE at 20 USC 33 33 §1401 (9) must be met.
When we are deciding whether an IEP is appropriate we can use the same method hearing officers and courts use to analyze a legal question (issue). An issue is usually stated something like this:
Whether the Old Overshoes School District denied the student a free appropriate public education by telling the parent ESY is available only during the three weeks during the summer beginning two weeks after the end of the school year.
Where would that issue appear in 20 USC 33 33 §1401 (9) Free appropriate public education? You are on good ground if you chose (D) are provided in conformity with the individualized education program required under section 1414 (d) of this title.
You can read Section 1414 (d) at https://www.law.cornell.edu/uscode/text/20/1414 NOTE: Scroll down the page or term search (d) Individualized education programs.
Continue reading through to (e) (Educational placements
The Federal Regulation:
34 CFR §300.17. You can read it at https://www.law.cornell.edu/cfr/text/34/300.17
34 CFR § 300.320
Definition of individualized education program. You can read it here: https://www.law.cornell.edu/cfr/text/34/300.320
If you find using the cornell.edu references cumbersome I recommend getting a copy of Wrightslaw, Special Education Law, 2nd Edition. This is the most authoritative and easy to use book about the IDEA statutes, regulations and more. And no, I am not affiliated in any way with Wrightslaw.com.
So in plain language, what does appropriate mean in the IDEA? I hope this article will help you define it when you suspect you see it.
Synonyms for appropriate used as an adjective:
Applicable, apt, correct, fitting, good, opportune, pertinent, proper, allowable, acceptable, applicable, fair, just, justifiable, lawful, legal, and legitimate.
In passing: Consider putting together a local parent study group to nail these analysis concepts down.
You are invited to post a question for Brice about this article or any other special education question on the INCIID Ask The Advocate Forum by going to