reexamining rowley

8/12/2019 Reexamining Rowley

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REEXAMINING ROWLEY:A NEW Focus IN SPEClALEDUCATION LAwScott F. Joh7UJOn

... The Individuals with Disabilities Education Act (IDEA)iMuires ~ t students be provided with a Fi'ee and AppmpriatePublic Education (FAPE). Exactly what FAPE means or

~ s i s a n elusive topic. Twenty yeat'8 ago, in oard oEdUcati9.,.;v. Rowley, the United States Supreme Court held.~ t r P E .requires servioos that provide students with some:edueational benefit. } Rowley isundoubted1y the mostUn,portantand intluentbU case in .special. education laW'. Thesome ed\lcatiol18lbenefit .standard permeates just about. . ." .e ~ t y aspect of special education because it is the standard.ap.inst hich all. semoosareDieasured. Subsequent .casesha.iveexpand,ed on thiS soIDe educational benefit requirement

~ ~ h a ~ b u t i t r e m a i J l s essentially intact today.Mueh :us been written about Rowley and its .impact in~ e d u c a t i o n law.2 This paper presents a new anddift erent perspectiw on Rowley .by. examining the RowleyePmdardmr FAPE against the evolving.backdrop of stateetl1icatioJJ8lstandardsand litigation over what constitutes anadQuate.ed.UC8.tion ~ r state oonstitutional law. Applying

tMBe ~ t o RowleYs analysis and reasoning, this paperconcludes that the some educational benefit standard noIQDler accurately reflects the requirements of the IDEA.Rather,. state standards . arid educational adequacyr q u i r m ~ n t s themselveB.provide the substantive requirements

A ~ at .Law. Stem,. VoJiDslry ... Cal. . . . . . .n, P.A., CoIMlDl'd,. _H&DllN'lUnt, Co-couDee}ia ~ t I G o u e n w r 700 A2d 1863 (N.H. 1997); Pioo&eeorOf ~ UDiYenity &boola Law; J.D. F:nmkIio. Pierce La C81lter. Tbi,sill bli.ee41ipoD preeeDtPiOa oriiiiWJy cmm III; the z001 Eclw:atioD :r.wIn8titute Ilt Fnmklin Pierce Law Ceuwr.. I WouJd l ib to thank PIofBIeor Sarah~ d IiDll M a r k C. Weber I- their review of IlDd commelltB on tbi8 plIJI8r.1. .M ofEdtM:. u. wle:Y. 458 U.s. 178, ZOO (1982).2. Aaearchof the titerllture sbows that wlcy is re reuced in over MO lawreview artil:les.

561


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562 B.Y.U. EDUCATION AND LAW JOURNAL [2003of FAPE, exceeding the some educational benefit benchmark.Such a conclusion requires a fundamental change in the waycourts, school districts, and, parents view special educationservices;This paper first lays the background for and explains theRowley decision. Next, this paper discusses three importantchanges since Rowley was decided: (1) litigation over whatconstitutes an adequate education understate constitutionallaw, (2) state educational standards, and (3) the 1997amendments to the IDEA, and how' these changes. renderRowley s some educational benefits standarcl invalid. Finally,this paper concludee with a discussion of how to incorporatehigh educational st nd rds and. expectations into specialeducation services as required by the amended IDEA.

I BACKGROUNDThe Individuals with Disabilities Education. Act (IDEA)requires state and local schooLdistricts to provide studentswith disabilities with a free and appropriate public education(FAPE). FAPE is definedby the IDEA as special education andrelated services that:(A) have been provided at public expense withoutcharge [to the parents];(B) meet the standards of the State educational agency;(C) .include an ~ p p r o p r i t e p r e s c h o o l elementary, orsecondary schooleducation in the State involved; and(D) are provided in conformity with the student'sindividualized education program 3

While the statute provides a basic definition of FAPE, it doesnot describe the substantive requirements of FAPE, nor set anyrequisite standards or levels. of learning achievement forstudents With disabilities. Because of this lack of substance,courts have. struggled when asked to determine i a schooldistrict has provided FAPE to a student.5

3. 20 U.S.C. f 1401(8) (West 2002).4. eL of Educ. v Michael M. 96 F .supp.2cl600, 607 B.D. W. Va. 2000).5. See ladonna 1.. Boeckman, Buwwin g C Ie Key w Public Educotio,,: 'l M Effec

of Judicial DetermiAatio1lll of the Individuals with DiBabume. EdutotW1 Act 01DUiabled a d Non.diBabled Stude ,.. 46 Drake L. Rev. 8M, 866-868 (1998).


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561] REEXAMINING ROWLEY 563In Board of Education v. Rowley,6 the United StatesSUpreme . Court attempted to determine' the substantive

.stand8.idaof FAPE. The pl.tlio.tiff in Rowley argued that FAPErequired .schools tq maximize the potential of handicappedCbiblrencomJDensuratewith the oPPOIt1JDij;y provided to othercbildJen.Thetrial court' agreed with' this proportionalmaximizatioDstandard,7 and the Court of Appeals affirmed thetrialcou:rt's decision without much conunent.8The Supreme',.Court overturned the ciJcuit .court's decisionA.iding that the IDEA (then known as theEHA or EducationIlamticapped. Act) did .not require. schools to proportionallymaxhniu the pOtential o handicapped. children. Rather, theCouit ~ that.' Congress had more moderate goals in mind.

~ l p r e t n e Court nilied, upon the text and legislative historyof the st tute to find that Congressional intent was only toPl'OV:lde a. basic floor of oppo1'tUDity to students withdisabilitie$by providing them access to public education asopposed'tQaddreesiDg the q,uality of education .received oneeinschOO1.9 The Cou:rtstated:

By passing the Act, Congress sought primarily to makepublic education available'tobandicapped children. Butin seeking to such, access to public education,Congress. did not. impose upon the States ny greatersUbStantive educational standard than .would beneOO:ssarY to m kefJilCh meaningfUl. Thus, theintent ottbeActwas more to opeD the door of publiceducation to handicapped children on appropriate terms.'. than to j1Jal antee any particular level ofedueation onoeinside;10'The Courtdetel Jirined, . however, that some substantivestarida.rd ,for'FAPE was implicit'in the oongresaional purposeof proViding access to a free approPriate public education. 11The Courtfuund thatthe substantive, standard for FAPE.r q ~ iJlstruction designed to meet the unique needs of thehandicapped child. supported by such services as are necessary

iI. 458 U.S. 176.(1982);7 wiey v Btl ofEduc 48& F.Supp.lS28, IS84 (S.D.N.Y. 1980).8.RowIe, 1I.l:Jd. 01Educ.,682F.2d 943 (.2d tir. 1980).9 Rowley; 468 U.S. at 192, 200.

1 . [d. at 192.11. Id. at 200.


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564 B.Y.U. EDUCATION AND LAW JOURNAL [2003to permit the child to benefit .from the instruction. 12 TheCourt noted that the statute itself provided a checklist ofrequirements for FAPEthat included providing instruction atpublic expense and under public supervision, providinginstruction. that both met the State's educational standardsand approximated the grade levels used in the State's regulareducation system, .and providing instruction that comportedwith the child's individUalized educational plan 1 E P ~ 18

The Court ooncluded. that . if personalized instruction isprovidedwithsu{ficientsupportive services to permit the childto benefit froiD the instruction, and the other items on thedefinitional checklist are satisfied, the child is receiving aFAPE as defined by the Act.l. The Court stated that whendeternUning whether a student .benefited from the senticesprovided, the achievement of passing marks and adva.nrementfrom grade.to grade will be one important factor in determiningeducational benefit, because passing grades and gradeadvancement.were methods of monitoring educational progI'eSBfor students being eduCated in regular cl.assrooms.15

IL POSTRoWLEYSubsequent court decisions interpret Rowley to mean that

the IDEA does not require schools to provide students with thebest or optimal education, nor to ensure that they receiveservices to enable them to maximjze their potential16 Instead,schoolsare obligated only to offer services .that provide someeducational benefit to the student. Courts sometimes refer tothis as the Cadillac versus Chevrolet argument, with thestudent being entitled to a serviceable Chevrolet as opposed toa luxury Cadillae.l7

12. ld at 201.13. ld at 189.14. ld15. Id. at 207 n. 28. The w ~ Court relied upon grades when a Btudent is-mainatreamed- aDd educated in the replar education cluarooms of a public IlCboolsywiem because it UBumedthat in Bucha situation, the IYBt8m itself moaiton the

educational prolr888 of the childD by adminiatering regular examinatiuna, awardinggrades, and permitting yearly adftllCement to -bieber grade levels fur those childrenwho attain an adequate kDQwledp of coune material- Id. at 202-08. The value of

grade. tbr etudents who are not mai.netreamed is not &II certain.16. See e.g. Lerm II. Porelorld Sch. Comm. 998 F.2d 1088 (lBt Cir. 1993).17 oe e reI Doe II Bd o Educ., 9 F.3d 456, 459-460 (6th Cir. 1998);


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561] REEXAMlNINGROWLEY 565Some courts further refine the "some educational benefit".standard torequi:re students to achieve a "meaningful benefit,"

or to make. "meaningful progi'esS" in the aJeas where thestudent's disability impacts their education.18 . These courtshold thatwhUe the IDEA does not requireasehool to maximizea student'spotAmtial; the Btudent'spotential and ability mustbe CQnsideredwbendetemrining whether he or she haspqreseed and reoeiveded1icational benefit. 19 . Moreover, whena studeDtdisplays considerable intellectualpotential, the IDEArequ.ires "a great deal Dio 'e than a negligible benefit."20. De,spite. a .myriad of court decisions on the. topic, schooldistricts,parents, and courts still.have. little gUidance on bowto assess FAPE or educat ional benefit. .The Rowley CourtmentiODedthat grades and advaucement from grade to gradewere factors in assessing benefit for mainstreamed students.Thus, post-Rowley courts have viewed pa88ing grades and

p : a d e ~ d v a n c e m e n t as important radom whend.etermining i astudent .:received educational benefit.21 Grades for studentswith .disabilities, .however; are often modified and lose their. .validity as a measure of benefit or progre88.2iSomecourts have also looked to academic achievementtesting in addition to grades and grade advancement tomeasure.educational benefit.28 These courts have relied upon"objective" academictestB and scores on SUCC688ive tests tomeasure educational benefit. . Courts using this approach,FayBCteviUe v Perry Sch.lMt., 20 IDELR 1289 (SEA Ohio 1994).

18. HCIUftOIJ bulq ScIi DiiIt. v BobI1 Y B., 200 F.8d341, 341 (5&h Cu. 2000); Btl.ofEdri.c. v. N.E. i72 F:8d288, 247 (8d Cir.lfJ89)(IDEA requine eigniftc8nt InrDiDIandmeaniDcM bODefit); M.C. a: ret. J e v C. Regl. Dita. 81 F.3d 389 (3cI Cir.

1 9 i ; ~ 9F.3d at 4S8; 11I>loiid v CoMml Ekh. CoB' 910 F.2d 983, 981 (letCu. . ;{t9O) ("'Ceucreu iDdUbitably. desired eflBctive reeUlta llDd dplOll8tZ'abJei m p t o v e ~ fi:Jr the kre ~ v Bd. ofEduc., 774 F.2d 828, 688 (4tb

C J r l t H l 5 ; ~ ~ v .G1'I IlJteI' CkJr* CoUiaty SeA; Corp.. 96 F.8upp.2d.811 (S.D. IDd. 2000);Roli .v. r a ~ a m SeA. Comm., F.8Upp.2clltM (D. Maa. IlJ88).

19. 172 F.3d l i t 147 (be1IIeIitmust be pulled in reJaiion to the child'.poteutial);)lol(.uuJM., 910 F.3d at 81H (lIC8demic potI8Dtial ODe 1Bctor to be conaideredwben addies8irig:sAldeDt a Deeda).20. llidlJewood, 172F.3cL .U47.

Doe ~ reL v Ala. St. Dept. of Educ., 915 F.2d 61)1, 666 (11th CU. 1990);PareAt v osCeola CoWlly SelL Btl 69 F.8upp.3d 1248


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566 B.Y.U. EDUCATION AND LAW JOURNAL [2003however,ha-ve .. produced varying results with . similarinformation)l. The variance seems to be due to the fact thatcourts do not have a substantive standard that defines what astudent should know and be able to do at a given point in time.s a result, assessing benefit through improvement in testecoresbecomes a subjective analysis of whether a gain of acertain amount is sufticient progrees or not.The .lack of substantive . standards for FAPE,whencombined the current Cadillac versus Chevrolet perspective,lowers expectations' and facilitates a min;lnalistic view of thesubstantive' education.' that students with disabilities areentitled toreeeive.When Congress reauthorized the IDEA in1997, t expressly noted that low expectations for students withdisabilities impeded the implementation of the IDEAIIICongress stated that educating students with disabilities could

24.. Sc1tDolDUtrid id. at 860, where thegrade equiValent8COltlti weft IJund to demoll8trlUe edacatioDal benefit:

MlJIoIIhide grades 5 I6dt gradesMath 1.7 3.1 4.4Written l aDpa . 1.5 1.9 2.9Pusaae compo 1.7 2.2 3.9Calculation U 3.3 6.0Applied problems .0 8.0 3.6

.Dictation 1.6 1.8 .8:Writing 1.4 2.6WOld Identitication 1.8 2.1 2.8Wold Attack 0.7 1.8 1.8

~ R b a d i D B 2.1 3.8~ e a m p l e 8 2.6 . 3.3

Baaic duat.er 2.1 2.8Proofln 13 2.6

with Hall v. Boord of Education 1988-1984 EHLR 356:437 (E;D. NC 1988), affd 774F.2d629 (4th. Cir. 1985), where tbecourt fbund thattbe fbIJowing teet; scores were f l lsufticient P Oareu to pl'OVide educational benefit:

3"'grade 5*gNleMath 4.0 5.7Readinc Recopitjon 2.8 2.6Readinc Comp. 2.2 2.7. SpeDiDg 2 15 3.2GeDBr8l In1b 5.3 7.0

25. 20 U.s. C. t14OO(c)(4) (Weat2002).


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561} , REEXAMINING ROWLEY 567be ,more ~ f f e c t i V e by having high expectations fur suchchildrelland ensuring their access in the general curriculum tothe DUUtimum extentpossible.p26

III. CHANGE IN THE LANDsCAPEThree important v e D ~ 'occurred after ,the owley decision,all of ' wbich impact the validity of the some educational,benefit' standard and change the nature of educationalserrieE$ that schools must provide studellts'who receive special'edw:atiQn sentices, under the IDEA. ,The first'sigDificallt post- owley event is state litigation over the constitutional

~ D l e n t s ofprovidingtpl adeq\Ulte education, to students,includiDgstudents ,with diSabilities,understate constitutionallaw. 'Anac:lequate education under :state constitutional lawreqUires the ~ t e to provi e its', students'with', educational

s e r v i ~ s t a r g e t e d tQwards the acquisition of sufficient skills tos ~ in eociety.&me of these Mqui:rements are at-od4sWith. and requiie a higher level ofedueational servicesthan Rowley s some educationalbenefit ' standard.The'seco.d eyentis tbeeducation standards movement that~ t e d 'l;iigh expectations. for, all students, ,including' studentsWithdieabilitles, by creatiDg generally applicable content andP l Q ~ c i e n c y standards. These standards define academicP8rG:tJ Dan r levels and 'provide specific substantivebenChnUlrks that students should achieve during theiracadenriccareel'S. ,'The third event isthe leauthorization of IDEA in 1997. At, that'tune, C p ~ . e x p i e ~ ebanJed the b:us of the mEAfi'fnn' genera1accese' to education for childlenwith disabilities

t O h i g ~ e ~ t i o n s d ~ educationalrQSUltB; Many of the1 9 7 ~ elilphasiZed that students with disabilities mustbe 'P'D'rided with the same quality of ecJucational servicesa beady :provided to students ~ u t disabilities includingaecessto 'curriculUDl that meets state educational standards.These three, , c h a n g ~ s require a reevaluation of what the,stattdaNfor FAPE and RiJwley mean today.

26 20 U.S.c. 1400(c)(4).(5)(A) (WeBt 20(2).


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568 B.Y.U. EDUCATION AND LAW JOURNAL [2003A An Adequate Education under State Constitutional Law

.Most states have state.constitutional provisions requiringthe state to provide educational services to students.27 Fortyfour states have been. through. some type of litigationconcerning the educational requirements outlined by theirstate constitutions.28 Tbemajority of these cases involvedchallenges to. the state'ssy8tem of financing education.Commentators organize school finance litigation into threewaves, with some contending the last w8.veis ending and apotential fourth is beginning.29.

Thefil'st two waves of school finance litigation dealtp ~ with equal protection.. or equity, argumentssurrounding Chaol ~ g in local school districts. I I ) The thirdwave of echool finance litigation has focused on.whether stateshave a conStitUtional obligation to provide a certain level orqwilityof d u ~ t i o n to its students. This qualitative level ofeducation isoftenrefened to 88 8Jl.adequate education:'81. Nwaerous state supreme courts have held that theirconstitutions require .the state . to provide an adequateeducation to all students.1l2 These d.ec:i$Qnsereate general statelaw educational staDdartis aJidieqQirementB. These standardsare subsequently incorporated into the .definition of FAPE for

27. Paula J. Luodberg, State CourtB aIId Schoo' J1undinB.' A Fifty State AMl.1Bi8,63 Alb. 1.. Rev. 1101, 1167 (2000).

28. William H. CIUDe, F d u c a t i o I J a l ~ A Theory CIIId iU.1lnIedia. 28 U.Mkh J.L. Ref 481 (1995); ~ I i a p r a D. 27; Kevin RaDdaJI McmilIaD, n .Ti4e: The ~ FeanA W'ClVl of SeItoolFiaonceBiJ(orm. LiIigatio allod lheeouna; L ~ 18 Ohio 81. U . 186'1 (1998); Deniae C.Morpn,The 1'(ew Scltoo, .liVIonce. i t i I a ~ t L MbowletWiA6 .'I'hat Race Discrimi3otionin PlWUcEdrM:aoon [sMOre T1Ian JUlle a 7.brc, 96 Nw. U. 1.. Rev. 99 (2001). For currentevents On funding Imp t ion .29. C I ~ ~ 28; wii1i m F. Dietz,Mar a,Jeable Adequac.y Standards inE d u c o e i q ~ r m LitiSOlioi&., 7 Wash. U. L.Q. 1198, 1196-1203(1996); Michael Helae.Stale CoJIIIeicueio,.,. 8c1too Litigatioi .,oM' lhe Third Wave l' l'Tom Equity toAdeqIiac:y.68Temp. 1..Bev.ll1Jl, 11117-119 (l99&);WiUiam B. Thro, n Bi rd WowThe lrri,pact of lhe ~ cmd tao. Deeiaiou em lhe Future ef PublicScItoo,FiN:uu:e form lfM.L. Educ. 219 (1980).

80. Heise, supra n . .2911t 111571158; Thro,supr'On.29.81. Kelly. Thompson Cochran,. Beyond Sc1aoo FirIQACins: Defining cAeConsCUUCioIlO' RiB 'c to 1M Adeqqoie Edut:otioi ., 78 N.C. 1.. Rev. 399, 413-417 (.1000);PatriQaF. First. lDuia F. MUon, The M_iJIB or-an Adequate Education. 70 Educ. L.Rep. 7315, 737 (1992).

S2. Rose II Counci' for tW Educ., In.c., 790 S.W.2d 186, 212 (Ky. 1989);MCDuIb v. Sec. ofE:ir:tIt: Off. 0/ Educ. 6111 N.E.2d 1516; 548(1993); Claremom Sch. Di8t.v. Gov., 708 1863. 13156 (N.H. 1997) (Claremone 11).


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561] REEXAMINING ROWLEY 569students with disabilities by the statutory provision thatrequires FAPE to meet state standards" and include anappropriate preschool. elementary, or secondary schooleducationin the State involved."33Some courts hold that an adequate education is not aminimal education. One of the earliest cases to address therequisite qualitative levelofeducational services under a stateconstitution was Pauley v. Kelly. In Pauley, the West VirginiaSupreme Court described the requisite quality of educationundertbeWe8t.VaginiaConstitution as onetbat "develops, asbest -the state of education .expertise allows, the minds, bodiesa..,ei. soci.almoraJity of it s .charges to prepill'e them for usefulaJ).dhappy occupations. recreation and citizenship, and does 90e o o n p u r i c a l ly . 3 6 .

The oourt further found that the state had an obligation todevelop. ,eve:r:y ~ t o his or her capacity of 1) literacy; 2)ability to a4d, subtmct.multiply and divide numbers;lmowiedle f : g ) V ~ n to the extelltthat the childWill be equipped as a citizen to make informed choicesamOnlrJ)eI'8ODS and issUes that affect his own.governaJi


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570 B.Y.D. EDUCATION AND LAW JOURNAL (2003(viii) sufficient levels of acadenric or vocational skills toenable public echoolstudents to compete favorably withtheir counterparts in Alabama, in surrounding states,across the nation, and throughout the world, inacademics or in the job market; and(ix) .sufficient support .and guidance 80 that everystudent feels a senseof self-worth and :ability to achieve,and 80 that every student is encouraged to live up tomsor ber full human potential.87State constitutional mandates requiring states to developevery child to his or her capacib' and enoourage them to live up

to their full human potential are directly at odds with theRowley basic floor of opportunity standard. Rowley rejected thenotion that the IDEA itself required states to maximjze astudent's potential. . na state where the state's constitutionrequires such a stand.ax d for. all students, however, therequirement isincorporatedintothe.IDEA's definition ofFAPEand should be the standard for students with disabilities.ll8Any other approach would run afoul of the IDEA'srequirements.89Other state courts developed and applied similarconstitutional . requirements without express languagereg8.rd.iDg. IDaximising student potential, but these resultingstandm'ds.remamclea:tly contrary to the minimalist guidelineset by Rowley.J For exampIe,the ~ n t u c k y Supreme Courtdecision in RoBe v. Councillor Better Education, Inc.41 isconsidered .one of the s e ~ l c a s e s with respect to ther e q ~ J P e ~ t s olan e q ~ e d u c a t i O ~ In Rose, the courtfound the state was obligated to provide every child with:

87. Ala. CoolitioFl or EqrAIy lnc. I . Hunt, No. CV-90-88S-R (Ala. Cir. Ct. 1998),reprin in OpWlm o u.. Jrutices No.aaa 624 S.2d 107, 166 (Ala. 1993).38. NIUl Be.arch CollDl;lil, u pro n. S8, at 151-52; Dannenber IlUIJro n. 33, at689-48. At the time oi the Rowley decision, l i t i pmn over a state', constitutional

o b ~ a t i o n to provide an adequate education was. in its infancy. The Court in Bowleymade short ehrift of thia requirement in ita decision and did DOt addleu what anappropriate education would be in Amy Rowley'estate.

89. Providinll difllrent lucatioDal etanclarda ibr students with disabilitiee couldaleoraiile equal protection OODCll 'D8. See Brow I). BtL o Educ., 347 U.S. 483 (1915()(edqcational must be pnMded eq-.Dy to alI).4O.Thia objective is right in line with the lUD8ndmenta to the IDEA in 1997discuesed i ff/ro. The purpose of the IDEA i I DOW to prepare Itudents with diaabilitiell

for independent JmDi and employment 20 U.s.C. I 1400(0)(1), (d)(l)(,A) W t 2(02).Thia purpci8e itaelf is arguably incoD8iBtent with o w l e y ~ minimalist approach.41. 790 S.W.2d 186.


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561] REEXAMINING ROWLEY 571(i)' sufficient. oral and written communication skills toenable students to function in 'a complex and rapidlych8 nging civilization;O.i sufficient knowledge ofeconomic, social, and politicalsy8temstoenable the student to .make informed choices;[m sufficient undel 8tandingof governmental proressesto enable' the student to understand the issues thata:tfecthis or her community, state; and nation;(iv) sut1icient self-knowlecigeand knowledge of his orher men.tal and physical wellness;

. (v) s\UD.cientgl'Ounding in the arts to enable each. student to appreciaW bis or her cultural and historicalheritage;(vi) .suft'icient training or preparation. fOr advancedtraining ill either academic or weational fields 80 as toenable eachc1rild t o choose andpUI SUe life workintelligently; and .

v i j s ~ n t ~ l s of academic or vocational skills toepablepublie c h o o l ~ n t s to .COJDpetefavorably withthEtiI COUn1;erpatts in sUrrotmding states, in academicsor in the ioti market.u .Several other s t a t e U p J , e l D ~ have.also adopted theseven' eriteria.set forth in .RoBe as requirements under .their

state .' ooDBtltution&.43 These courts . clearly hold a.OE)ristitptioDlllJ,yadequate education is not aJD,inimal d u ~ t i o n . The ew ~ p s l r i r e 'Supreme Court stated in Claremont v.Governor ClaretnonJ Il), .Given the 'compleXities of ollr sooiety today, the State sconstitutio,mu duty,. ~ s beyond mere reading,writi:ng, ' apd arithmetic.. It also, . includes broad

e 4 ~ ~ t i o n a l 'opportunities needed in today's society toc i t ~ D a fortheiT role as participants and as

p O W ~ t . U d C O D l p e t i t q n i n t o d a y 8marketplace of ideas. AeonstitutioJ;18Jly d e q ~ t e p ~ l i c education isnot a staticconcept remWedfrom. thee d e ~ . of an evolvingworld:. It is not the needs of the few but the criticalrequirements of the many .that it must address. Mere42. Id.at 212.43. Seee.ll. Me1Juff:y 615 N.E.2d at 554; Claremo,, , 708 A.2d at IM9.


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572 RY.U. EDUCATIONAND LAW JOURNAL [2003competence in the basic&--reading, writing, andarithmetic-is insufficient in the waning days of thetwentieth century to insure that this State's publicschool students are fully integrated into the worldaround them; A broadexposure to the social, economic,scientific. technological, and political realities of today'ssociety. is essential for our students to compete,contribute, and :flourish in the tWenty-first century. When states properly .incorporate these oonstitutionalrequirements into the IDEA's definition of FAPE, studentswith educatiolialdisabilities become entitled to more than justa basic :floor of opportunity or some educational benefit. Theyareentit1ed to receive an education enabling meaningful

participation in a delllOCftltic8Qciety, as weD as competition forpost-secondary education and eDiployment opportunities.46The IDEA requires. i.ncoiporation .of broad educatiolialadequacy goals into an .individual edueZiQnal Program (IEP)meeting the uniq. needs of eaehindiviciual disabled student.Every stUdent 'ith a disability, as defined by the IDEA, isentitled .to .an IEP under the IDEA4 l An . IEP must beindiVidu.aUy tailored to meet the unique needeofthe student 7The IEP is the cornerstone of proViding FAPE. CoUrts look towhether an IEP is appropriate when assesSing whether aschooldistrict has provided FAPE.Aligning IEPswith a state's oC()Qstitutionalrequire'inentsregarding. ail adequate education, .presents. challenging issuesfor school officials and parents. Educatore and fa.milies mustboildolVnbroadadequacygoalstoa per8()nalized and detailedplan fur a s p e i f i e s t u e n t ~ An IEP must contain Specific goalsand. objectives to meet the student's uniqueneed.s, as well asoutline the special education and related.eervices the studentw l l ~ v to meet thegoals andobjectives;49

When the state coristitutiolUtladeqU8.CY requirements areincol'Pon'lted 'into .theIEP .process; the goals, objectives, the44,. 103A2d.e 1StJ9,46. ee e.g. 790 S.W.ldat212; Claremollt, 708 A.U at 1869; Abbot. I .Burke. 698 A2cl417, 428 (N.J; 1991).46. 34 C.F.R.,800.841(aXl) (2002).47 BOllig tI. Doe 484 U.s; 306, 311 (199$); RolaMM. 910 F.2d at 987.48 BMiB 484 U.s. at 811; Pihl v. MCJ88 Dep ofEduc 9 F;3d 184. 187 (l8t Cir.1998 ; Roland M., 910 F.2d at 987; DauidD. I . Dartmouth Sch. Comm 775 F.2d 411,415 (let Cir. 1985).49. 84C.F.R. 800.347 (2002).


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561] REEXAMINING ROWLEY 573special education, and related. services must be targetedtowards enabling the student to meet the educational adequacyrequirements. .The broad .educational adequacy requirementsaloneJDaY nOt be specific enough to enable schools and parentsto . readily meet thiBreqUit'eDlent. IIi this respect, state educational standards can assiBt by providing specific,measurable st8.ndardsestabJi,sbing what students should knowand-be able to dO at certain stages in their academicprDjJtession. 15O Thesesta.ndards can be individuaJizedandinOOrPoratedinto students' IEPs.

B. State Educational StandardsT l I e I D ~ s definitional checklist of FAPE. referenced by theSUpl'eJlle COurt inRowlq includes a requirement that the

~ C a t i O n .provided to students. with .disabilities meet stateBtandards;61 When the Court decided Rowley this requirement did. n o t b a ~ the same meaniDg t does today. Most statestanda.rds at the time o l tbe decision did not involvesubstantive reqllirements. for. the educational services providedto . t u d e n ~ . . Instead, the standards addreesed-the process bywhiebt4eserviees would be provided and were deSigned to beminimum standards.51

_ However, today the focus of educational standards hasc h n l e ~ t S t a t e and educational standards addre88 theeNential oo:re of knowledge of whatstudents should learn.Known in. the edueational worldu ..s t a n d a r d s ~ b a s e d educationr e ~ e t a t e and f ederaleducational standards now include oontent Standartis specifying what students -should learn,

p r o f i c i e ~ .. n d a r d s ... settiDgthe expectations for what8 ~ e t l t s must koow and be able to do at certain stages, and. a s e e ~ meaeures determining whether the student has

a c h i e v ~ t b e .expectations in the. standards.158.50. MJuy' E. MoraD SIaadards a n d ~ n rNew Mea8rIre 0{

iiI.. /IiOOl MIIOIICe 25 J. it Edue. Fin. 33 (1998); Coc:hnm supr D. 31. at462-64.51. 28 U ~ _ C A 11401(8)(b)


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574 B.Y.U. EDUCATION AND LAW JOURNAL [2003The standards based education reform eBort becameprominent at the national level with Goals 2000. This federallaw proposed national education goals requiring statesreceiving funds under the program to develop strategies formeeting national education standards. These strategies,moreover, .had to include . developing and adopting stateeducation standards and asseument methods.54.Other federal .laws like Title I of . the Elementary andSecondary Education Act, as. amended by the ImprovingAmerica's Schools Act of 1994, require states to develop oradopt chalJenging content, proficiency standards, andaesessment m : e c h 8 n j s m s . ~ 5 Under Title I, students who receiveTitle I services must make adequate yearly progress towardmeetillg the .state staildards.ll8 Schools.whosestudents do not

make adequate progress mustdevelop .coJ7ec=ti.ve action plans.57The passage of the No childLeft Behind Act of 2001


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561) REEXAMINING ROWLEY 575Title I. students must now make adequate yearly progressupon annual testing. ~ In fact, under NCLB, all children,Yeg'ardleS8 .of Title 1 status,. in schools that do not makeadequate -yearly progress and are deemed in need ofimprovement now have the right to attend. another publicschool or receive supplemental services such as tutoring fromthe SchoOl district.81 .

Virtuai yevery state has DOW adQPted someform of contentand/or proficiency-stand8.rds. setting forth specific performanceetilndai'd$ andestabJishing the required outcomes for proVidinga t ~ d e n t s with an adequate or appropriate education understate- law.62 . In addition, a majority of states have developedspecific .a88efJ8JDeDt measures that test students' levels ofachievem.eJlt in meeting state standards.68

There are two important .aspects of standards based reform.related to F A P E a n d t b e ~ u p r e m e Court's decision in Bowley.First, education standards establish high expectations for allstudents incl-qding students With d i s ~ Such standards. . . . . - .8$5UDle n students can: a.dUeve elevated levels of learningaftersetting. high expectations, clearly defining standards, anddesigning. teacbiilg. to support student achievement." Theintended reBult C t education standards is that aU students willlearn l I l t e ~ Some s t ~ have even developed specificatandutis . for students withdisabilitie8, but most simplycreated-one set of standards for all -students.- The highexpeeta.tiona instate educatiOnstandards are at oddS with thecore holding in Rowley which Stated. that scllooldistricts needonly. meet the minimaliBtic "some educational .benefit"standard.67The second important aspect ofeducationalstandards shiftsthe foCus from process to outcome. Content and proficiencysiandU'deand a8lle8 meD 8'- lrl. at 1S.

6 .20 U.S.C. t 6311(a,) (We. 2003).61. 2OU.S.C., 6816(b)(E), (e) (West 200S).62; Natl. R e ~ C o u n e i l supra D. 38, at 27-29.63. ltJ. at.27-29, 154-68.

. 64;kL llt 22-26. .29-39; Janet R. Vohs, Julia K. Landau & Carolyn A Romano,PElQi lahwraOliQII Britrf: 1ltIiBUIg of .8bJdg . uIiIA I>iIIaI1ililiat ilIdSJmid,arda-Bo8ed Bdueufiors fOrm (available at


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576 B.Y.U. EDUCATION AND LAW JOURNAL [2003standards center on whatstudents actually learn as opposed tothe process by which the students learn the infurmation.68Currently, special education focuses in large part on theprocess of providing services to students and not neceBBarilythe outcomes that result from the services.. Educationstandards redirect the inquiry to the eft'ectiveness of theeducation actually provided to the student. The focus onstudent. achievement contradicts Rowley's finding that thepurposeof the IDEA is to provide access to education and notto add.reBB the substance or quality of services students ~ vonce they.have acoeBB.89The state-estabJished Curriculum Framewotks in NewHampshire illustrate.one example of content and proficiencystandards.70 The FraIneworks set content and proficiencystandards in variousacademic areas. In the areaof LanguageArts, the.Framework sets forth the following general readingstandard:

.Students will deJllonstrate the n ~ r s t and ability toread age-appropriate .materials fluently, withunderstanding and appreciation..The .Language rts framework then sets forth the fullowingbroad goals:

Students will readtluently with understandingand appreciation. Students. will write effectively. for a variety of

purposes and audiences. Students will speak purposefully andarticulately. Students will listen and view attentively andcritically. Students will understand, appreciate, interpret,and critically analyze claBBicaland contemporaryAmerican and British literature as well asliterary works translated into English.

88. NatI. Reeearch CoUDDil tmpra L 83, at 36-39, 11...18; YOM tmpra n. 64.69. Rowley 468 U.s. at 192.70. The frameworb were ~ h 88 part of a New Hampehire 8tatute, N.H.Rev. Stat. Ann. fl98-C (1999). The frameworb are available on the New HampahireDepartment of Education Website at .


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561] REEXAMINING ROWLEY 577 Students will use reading, writing, speaking,listening, and viewing to:

gather and organize information; communicateeffectively; and succeed in educational, occupational,civiC; social, and everyday settings.

While these requirements may .appear ratherbaBic at first, thispeteepmnchanges when applied to a student with a disability.These goals become sigeiDcant and require scl1oo1 districts toprovide services .10 enable the&tudent to meet these goals; thiswill likely be a significant change for some school districts and

8 t u d ~ n t s For example, requiring a student with dyslexia toreadage appropriate materials fluently is a goal that somescltoo1districts might ordinarily . not set because of thedJ.ffieultiea a student with dyslexia often has reading.71lliBtead, a achool district might set a goal targeting simpleitDpmvements to the student's readiPg ability, even i f that

i ~ p l O V e r n e n t left the student several years .behind in hislherreacting levelIncorporating state educational content and proficiencystandards into the statutory definition ofFAPE means high

~ t i o n s must now be included. indisabled students' IEPs.Edueational standards define performancecrlteria forstuderitsthat .scllool dietriet8 and parents lIJ.ust use when developinggoals:. altd objeetiVes in . student's IEP. School districts,paren,ts, and. courts may .. use these standards whenasseeaingwhet:lter.a sc1)oo1 district bas successfully provided astudent a FAPE.72

7L stanley S. Herr, Special Edwotioll Law a,.d CIJildren wirh Reading cmdOther DisObiliries, 28J.L. Educ. 3S7, 343 (1999).72. Tbeleis p


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578 B.Y.U. EDUCATION AND LAW JOURNAL [2003C. The 1991Amendments to tMIDEA

Congress amended the IDEA in 1997. The amendmentsshow . Congress' conscious decision to incorporate stateeducational standards into special educational programmingfor students. The statute now explicitJymsndates that statesestablish performance goals. for clrildren with disabilities thatare consistent with other .goals and standards set for allchildren.78 .The 'IDEA now ,requires. states. to establishperrol'Dl8nC2 indicators that assess progress toward achievingthose goals. At a minimum, the goals must address theperformance of children with disabilities on assessments, dropout rates, andgracluation rates.74

The amendments to the IDEA mark a significant change ofdirection from the Court's .decision in Rowley Theamendments establish high e x p e e t a ~ n s for children withdisabilities to achieve real educatj()nal results. TheamendIQents,cbange the focus of IDEA frQm one that merelyprovides students with disabilities aooeseto .an education toonerequiringUnproved results and achievement. The changes

remade explicit in the House Committee Report whieh states:This CoJlllPittee believes that the issu,enow is toplace greater emphasis on improving studentperformance and ensuring that children with

~ b i l i t i e s receive a quality pui)lic education.E d u c a t i o ~ adri.evement f9r cbildren with ~ b i l i t i e swhile improViDg, is sti)lless,than sati.ctory.... Thisreview and authorization althe IDEA is needed to moveto the nen step. of .provicljng. special education andrelated services to cbildren with 'diaabUities: .to improvealid increase their educational achievement.7Similarly, the findings section of the 19997 IDEA

amendments states that:Over 20 years of research and experience hasdemOD8trated that the education of children withdisabilities can be. made more effective by having highexpectations fOr sud1 cbildr and ensuring their accessin the generalctll'l'iCmumto the maximum extentpossible [and] 8UppOIting. bigh-quaJity, intensive73.20 U.S.C. f 1412(&)(16) 2002 .74. Id.75. H.R. Rpt. 1 ~ 9 6 at 88 84 (May 1B, 1987).


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580 B.Y.U. EDUCATION AND LAW JOURNAL [2003the student s IEP. States and districts may also ueetheseresults to measure student progress towards meeting IEP goalsand objectives.81 Results on some of these tests indicate thatprogramming for students with disabilities is not yet aligned tostate edueational standards.New Hampshire's test results, show vast differencesbetween students with .disabilities and students withoutdisabilities. New- Hampshire divides its test scores into fourcategories: novioo, basic. proficient, .lUld advanced. During thetest administered. in 2000, only thirty-two percent of studentswith disabilities scored basic and above in third grade languagearts, compared to eighty-three percent for all other s t u n t s ~ Moreover, only five percent ofstudents with disabilities scoredproficient and abov-ein third grade Iangu,agearts compared to

f o r t y ~ t h r percent of all other students. Overall, only twentyfive percent.of students with disabilities scored basic and abovecompared to eeventypercent of all other students. Only fourpercent of students with disabilities scored proficient and abovecompared to thirty.;one percent of all other students.82The 1997 amendments to the IDEA incorporate the highexpectations of state educational standards . into theprognmming fur disabled students. The amendments alsoshow that FAPE is now more than access. to abasictloor ofopportunity. FAPEis now aligned with the high expectationsin state education standards. .As a result, theeehigbexpe


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561) REEXAMINING ROWLEY 581address thoseareas where the student's disability affects theirability. to progress in general ClUriculwn.84 Therefore, the IEPdoes not ~ e s a r i l y need to address every edueation standardin every academic area.85 Rather, an IEP Team should assesshow the student's disability impacts hisIher ability toparticipate in and progress in the general curriculum, andident1fythe content andproficieney standards that apply to theitnpacted Metis. In some cases, the content and proficiencystandards may be used directly as a goal or an objective in anIEP. In other cases, the IEP team may need to modify contentOf. proficiency standards- by individualizing the standard andpn;>Viding more detail on what the student will accomplish in aperiod oftime.86The Team may also determine that the student cannotpresently meet a content orpNficiency standard and choose todevel'OP. its own standard as an immediate goal or objeetive.87

84, 34C.F.R. at 1800.lU7; AppeJJdi:i A to 34 C.F.R. PIIl't 800, Queetioos 2, 4.S d l o o l ~ must, lioweller, addrel8 mote than just academic Deed8. .LeM, 998F.2dIlt: 1089. .

86.. . ~ p ~ Ato 84 C.F.R.Putaoo, Queatioaa 2, 4. The Houe Comaitteereport on tbareautlaorisation l ~ I D E states:

. ~ DeW8@basiaoapartil;ipatirmiDthe pneraleducationcurricalum is notin.DiIIed by tile ComJDiUlee to. NiPlkin DUQor in th e 01 tileIEP af.OO - 1paaiea 01 cIetaiJed and benchmarb or objectives inevery cuftiicuIu eoDtebt iirnMiiPli or skill. TM DeW fbcaa ill intended top r o d ~ D t o t h e ~ o s 8Dd ad,juataelda necel ry tbrcliMbled eI iIdreD to tbepaeral flClucatiOn cUrricuJ:aia and the speciallI8rn:.e.wbich may.be. JIIlClflIIIIllr fino Ml'OIUiate J)III'ticipldiou inpartlcularof the c:urricalum; Ii to the J i l reoIb diBabiJity. Specific day to d8,yadj1l8tmelltJJ in iD8tnactioaal medlodB and approacbee that are DWIe byeither a ftPlar or epecial e d u e ~ t e e b e r to a diBabJed child to~ v e bilOJ:bel' ammar ..... wo1dd IIOi DOnDaDy require action by the

dWd's IEPTeam. BOwvver. ifchaDaea are coatemplatecl in the clWd'a. . . . ~ amwal __DCm.ub. or ahorttena objectiyea, or in q y af~ . eerviC88or. JIl QIi aIa or other COJIIPOD8aU in thechiJdi8 lEP the LEA e_that the 1 1 B P Team is teeOD98aed init timely r to addre . those chluJao8aH;R.ilpt. 1 ~ at 100.

.86.'. NatL llBeearcll Council. supro n. 33, at 140-11U.81 ..The juue of w leUlel'.dae 8tudent is c:apdle. of Ittajniag ci rbdn 8taDdarde atoertsin srade levels i I ODe tbat:w:ill bave to be eateftdJ,y iEBlsedfbl' each 8tDdeDt. In8 O ~ the e t u d e n t I ~ D t 1IUlY" 80 simtre tlIat the p OficieDcy standard illum:ea:J:ilWC ~ r dJejee ~ D 8 wil1libly be rare. Re8eIm:h hIlII delllOlllltratedthat n w i t h ~ i r e eilpable oIattaiDiq hiP JeamiiItr wben. . theyan,;P1'Wid8d Wiih ~ t b a t e n a h J e tbem to do BO. ThiI is true e98ftt d ~ e u t J i ~ u i t l l t b a i a l Jf kwracaaetDic achievelDeJlt. John Bruer, Sc1toolB for~ 'l'l-7S(M: lDit.ofTech. Preea 1992); SaDy E S ~ D:18laia 273 Sci.

Am. 98. 10$ (NOv. 1998).


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582 B.Y.U. EDUCATION AND LAW JOURNAL [2003When this is done, the IEP Team s standard should be linkedwith the state content or proficiency standard. The standarddeveloped for the student should be challenging yet achievable,and. designed to assist the student with ultimately meetingoverall state.standards.88Similarly, the IEPTeam must focus on developing thestudent s access skills needed to satisfy the content andproficiency s t a n d a r d s ~ Direct services and remediation (suchas one-on-one tutoring in Orton-Gillingham or Lindamood Bell,etc.) are often neceBBary to help students with certaindisabilities develop the access.skUls necessary to fulfill contentand proD.e2ency standards.. The Team must develop additionalgoals and objectives for these access skills. The IEP Teammust also determine i f any other accommodations ormodifications are required to ellllble the student to meet therelevant content and proficiency standards and to enable thestudent s participation in state or distnct.888essments.90

88. TheComJDi:tt;ee O1lGoaJs 2000 and the Inclusion 01 Students with Disabilitiesmade a number of recommeDdations regarding BtudentB with disabilities andstandarda iDcludiDr the iillowing:

1. States and JocaIii. . that decide to implement Btandardll-based retbrmashould deaip their common content ~ per.lb.mumce standards, and&88888ments to maximize participation oIstudentB with disabilities.2. . The pftlSumption.should be thatesch student with a disability willparticipate. in the state or Jocail lltaDdard&; however, participation fur anygiven 8tQdent may require alterations to the common standards and8SlMlssments. Decisions to make such alterations must have compellingeducation al jUlJtiftcationand must be made on an individualbuie.S, When content and pertbrmance standards or alll88SlD8nts are altered tora student with a disability:

the altemate standards should be chalJeDIiDI yetpotentiaJ)yachievable; they should re11ect the full rllDP 01 kDowJedge and akillB thatthe student needs to Iiveaful1, productive lite; and the echool system should; intbrm parents and the student of

any coDsequences oftllese alterations.4. A88ee8lD8nt accommodations should be provided, but they 8hould be usedonly to oft'set the imPact of disabilities unrelated to the kDowJedp and skiilsbeq measared. T.b8yal8o.sbould be justified 9D a qee..by cue basis, butindividual decisions abould be guidea bya unitorm set of Natl. Research CoUDCil,.rtpro n. 88, at 197-209.89. Aoce88 skill,1Ul8 p l y akilJathat are aliped with the content andproficiency standar:da ~ that enable the student to meet these standarda. SeePatricia Burwell .t: a r ~ Ksooedy, ~ t t s TetlI8d Gels 1 cJlJ6/at; m o Gets 1 esl8d,Gets Tou gla: Curriculum I'romework1JfnielOplMl lProcess (Mid-8. Reg]. Resource Ctr.1998) (available at b p:i1wWw JhdLuky.edUlMSRRClPublicationslWhatjpttB.htm.90. 34 C.F.R. at I 300.847.


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584 B Y U EDUCATION AND LAW JOURNAL [2003 . Seek help to clarify and understand informationgathered through reading Employ techniques, such as previewing a textand skimming, to aid in the selection of booksand articles to read. Demonstrate the ability and interest to readindependently for . le8.rning, .information,communication, and pleasure.

The e ~ should oonduct the necessary evaluations todetermine which of these standards: are impacted by thestudent s y s l e ~ n i f the student can meet any of thesestandards. he Team sholildthen consider how to develop aprogramtbat enables the student to meet the' unmetstandards. The Teamtnay iDclude some of the unmetstandards themselves as goals and objectives in the student sIEP, or i t may .need to modify and individualize thosestandards depending on the student s unique needs. The teammay also need to develop linlringstandards aliped with theunmet standards in the curriculUlll frameworks. Goals andobjectives'thilt develop aooessskills will also need to be part ofthe student s IEP.. The Team should then consider standardsfor other .academic areas such as math, science, and socialstudies in determining i f the student s dyslexia will inhibit hisor her ability to meet these s U m ~ f so, the Team shouldfollow the same process fur developing goals and objectives toaddress the issues.

V CONCLUSIONThe 1997 reauthorization of the IDEA and the eDlergence ofstate educational standards and constitutional requirementsshould lead to fundamental changes in how IEPs are written,implemented, and evaluated. . This,in turn, should lsoinfluence how oourts assess FAPE. .These changes require areexamination of Rowley and its "some educational benefit"

standard.Reexamining Rowley is no small undertaking. t hasprovided the basic framework for special education services for

91 Laneua le Ares Framework (available at

reexamining rowley

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