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The Individuals with Disabilities Education Act (IDEA) provides a substantive guarantee to a “free appropriate public education” (FAPE) to students with disabilities. The education is to be provided “in conformity with” an “individualized education program” (IEP): an educational plan for the student that is created through a statutorily defined process. Scholars and courts have focused tremendous attention on the level of educational quality that an IEP must offer to meet the IDEA’s requirements. But the creation of an adequate plan is, of course, not the end of the story; the school district then has to implement the plan. This leaves an important question: How far may a school district deviate from the services specified in an IEP and remain in compliance with the IDEA? In other words, how much of the adequate written plan is the student in fact entitled to receive? There are two existing approaches to failure-to-implement cases: the materiality approach and the per se test.

This Comment argues that both approaches are flawed. The materiality standard circumvents the procedural protections of the IDEA, provides little predictability to parents and schools, offers little guidance to courts, forces judges away from areas of institutional competence, and incentivizes school districts to overpromise and underdeliver. The per se rule, on the other hand, is insufficiently flexible given its practical and statutory constraints, would disincentivize ambition and innovation in IEPs, and is unlikely to be adopted by courts.

This Comment proposes a new approach—a burden-shifting test that accounts for both (1) unforeseen or unavoidable circumstances and (2) the proportionality of the school’s response to those circumstances. This approach integrates the benefits of both the materiality inquiry and the per se rule. It better honors several important aspects of the statutory scheme, better aligns with the statutory text, and accords with Supreme Court precedent. It also encourages IEP drafters to craft realistic plans that nonetheless aspire to deliver the best results for students.

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