Monthly Archives:' September 2015

Failure to Provide Aide Equally Proficient in Extracurricular Activity not a Violation of FAPE


mike photoAuthor: Michael Tucker, Attorney at Law 

Summary:

On August 13, 2015, a California district court ruled that a school district’s failure to provide a 17-year-old student with autism an aide with equally proficient biking skills to keep pace with the Student did not violate FAPE.  Meares v. Rim of the World School District, 66 IDELR 39 (C.D. Cal. 2015)

Facts:

Student is a 17- year-old with autism and a member of the school’s mountain biking team.  Student’s IEP required a one-on-one aide for class as well as “after-school sports,” but did not specifically mention mountain biking.  At first, Student was assigned an aide who could equally participate in Student’s after-school mountain biking activities.  However, that aide was replaced with an aide that had no experience mountain biking and was concerned about keeping pace with Student.

Parents argued that the new aide was not appropriately trained nor qualified to act as Student’s aide during mountain biking practice and requested an aide that could keep pace with Student.

Issue:

Is an LEA required to provide an “equally skilled” aide for a student’s extracurricular activities, like after-school sports?

Holding:

No, there is no requirement that the LEA provide an aide that is as equally skilled as the student so long as the LEA abides by the IEP’s terms and provides an aide that is capable of assisting the student.

Discussion:

Parents argued that Student was denied FAPE when the District failed to provide an aide that was capable of “keeping up” with Student during mountain biking practice.  Initially, the District assigned an aide that met this standard, but later reassigned and replaced the aide.  The court noted that the District had provided an aide that was capable of participating in the Student’s after-school biking practice, although not at Student’s skill level.  The court further pointed out that the relevant IEP was silent as to whether Student required mountain biking to receive FAPE.

The court suggests that their ruling may have turned out differently if the District had offered mountain biking as part of the District’s FAPE offer.  While the IEP does state that the aide was required for “after-school sports,” it does not specifically mention that the sport must be mountain biking or that participating on the mountain biking team was required for FAPE.

The court went on to question “how far [the parent’s] logic must be extended; if [the student] was the preeminent mountain biker in Southern California, would the District be required to somehow locate a biking aide to keep pace?”

Practice Pointer:

This case highlights a common dispute regarding aide assignment.  Frequently, parents argue that a specific aide is required for their student to receive FAPE.  Here, it seems Parents wanted the “best” aide and ignored that the District still provided an aide that was appropriate for Student to receive FAPE.  However, as this court pointed out, FAPE is provided so long as the LEA abides by the IEP’s terms and provides a qualified aide.