By Daniel, Philip T K
I. INTRODUCTION The No Child Left Behind Act and the congressional reauthorization of the Individuals with Disabilities Education Improvement Act (IDEA) caused researchers to question whether the provision in the IDEA governing Free Appropriate Public Education should be revised to better serve the interests of special needs children. For each student protected by the IDEA, an instrument must be developed to serve the child’s unique needs, and part of this requirement is the promotion of participation in the general curriculum. As determined by the national government, standards of achievement measured by assessment instruments are cornerstones of this new approach to education. This study examines federal legislation, including statutes, regulations, and case law interpreting whether a student is entitled to “some benefit” or to a maximum benefit in education. A preliminary analysis suggests that the interpretation found in Board of Education of the Hendrick Hudson Central School District v. Rowley1, has changed little over the past quarter century. The United States Office of Education, however, may have a different opinion. Their recent study states that that further guidelines and research are important to establish before school personnel, parents, children, and the attorneys who represent each have a definitive position on this very important topic.
II. THE ROWLEY DECISION
The educational rights of students with special needs are created and protected primarily through the Individuals with Disabilities Education Act (IDEA).2 The Act provides extensive, detailed substantive and procedural rights and protections for disabled children and their parents. The Act’s fundamental premise is that all special needs children are entitled to a free appropriate public education (FAPE). Since the enactment of IDEA, there has been a great deal of litigation regarding what constitutes a FAPE. At the heart of this litigation is the definitive U.S. Supreme Court case of Rowley, which interpreted IDEA’S3 statutory definition of the term. The Court held that the statute does not require that a particular substantive standard be used to measure whether the education provided a special needs child is appropriate. In Rowley, the Court enunciated what it considered to be a “tolerable”4 standard for regulating the content of educational programs:
Insofar as a State is required to provide a handicapped child with a “free appropriate public education,” we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the state’s regular education, and must comport with the child’s IEP [Individualized Education Program]. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.5
The Court found that establishing a test for all children covered by the Act would be too difficult6 and therefore confined its analysis to Rowley plaintiff’s unique circumstances. The conclusion that education is appropriate if the child is achieving passing grades and advancing from grade to grade is implicit in the Court’s reasoning. Rowley therefore established that equal access, rather than equal opportunity, was the IDEA’S goal.7 Through its decision in Rowley, the Court established a “basic floor of opportunity” which need only be “individually designed to provide educational benefit to the handicapped child.”8
Unfortunately, as later lower court opinions confirmed, in attempting to set forth a functional standard for the FAPE element of the IDEA, the Rowley Court created more ambiguity than clarity for educators seeking to meet the statutory requirements. Lower courts have been left to struggle with the question of how the benefit is to be measured and how much is required to qualify a disabled child for a free appropriate public education. For example, cases that immediately followed the Rowley decision interpreted the “some educational benefit” test as establishing a standard that does not require a school to provide the best education that money can buy.9 In construing the Rowley educational benefit standard, the trend of cases reflect that special education should produce satisfactory or meaningful progress toward achievement of a disabled child’s unique educational needs.10
III. NATIONAL STANDARDS IN EDUCATION
Given the increasing national focus on standards and educational adequacy requirements, it is argued that Rowley and the “some benefit” language no longer accurately reflect the FAPE requirements in the IDEA.11 The catalyst for such a position is featured in the contemporary American experiment in accountability, based on student achievement, involving universal educational standards for each grade level and high stakes proficiency testing for every student.
Accountability and Testing
At one level, accountability represents a response to poor study and work skills, and substandard overall test scores on the part of all students, especially those representing protected populations. In 2002, the United States Congress, relying on the perceived success of programs in states such as Ohio, Texas, and North Carolina, radically restructured federal education funding by imposing new accountability procedures on every state. This new legislation, entitled the No Child Left Behind Act (NCLB), is a federal spending statute, authorizing and combining under one rubric, those funds to be allocated for K-12 education programs.12 Through the “spending clause” of the United States Constitution,13 the federal government has extended itself into American education on a national level as never before. As a profound shift of authority over educational policy tilted toward the national government and away from the states, this mandate prescribed accountability guidelines for states, districts, and schools. The Act held states accountable by measuring student performance in state tests based on a state’s general curriculum.
Assessment tests, aligned with challenging content and achievement measures for all students, are designed to accomplish accountability. States are required to administer these tests periodically. Within the core of NCLB, a number of measures are designed to drive broad gains in student achievement, and to hold states, school districts, schools and school personnel more accountable for student progress. States must establish “challenging academic content standards” and “student achievement standards” to ensure an adequate education for all students. For example, beginning in the 2002-2003 academic year, states had to furnish annual report cards showing a range of information, including achievement levels for students and targeted ethnic and socioeconomic populations; school-by-school data was also required to demonstrate this report card responsibility.-Furthermore, by the year 2005-2006, states began testing students in grades 3-12 against statewide standards in literacy, mathematics, and science. The tests had to align with state academic standards and each state had to participate in the National Assessment of Educational Progress testing program in reading and math to form year-to-year comparisons of achievement. With the national NCLB mandate, through programming states had to bring all students to a proficient level on state tests. Individual schools must meet state adequate yearly progress targets toward the proficiency level goal (based on a formula spelled out by law) for the student population as and certain demographics.
Students with special needs are a group singled out for protection under NCLB. Early on while enacting the legislation, Congress recognized the need to educate such students using the same standards as those without disabilities. Exposure to the general curriculum was initially required, and determination of progress was assessed with the same testing instruments to determine whether all students were making annual yearly progress.
Organizations supporting the needs of disabled children praised the legislation. The Disability Rights and Education Defense Fund stated that the Act “bolster[ed] the right of special needs students to participate . . . and make progress … in the general education curriculum … It put[s] an end to the processing and hoop jumping that students . . . endure … to improve their chances of getting the support they need.”14 Student disability rights organizations supported the notion that the law had an even stronger incentive than some disability statutes to align the education of special needs students with a state’s general education content.15 This meant that such students would integrate more into regular classrooms beyond social opportunities. Most of these students would be expected to reach the same level of proficiency as their non- disabled peers. This legislation was viewed as significant and as representing a noteworthy cause. Hence, few would disagree with the intent of this statute; to help educators and parents reconcile educational approaches with the needs of all students, particularly those with low-achievement scores, so as to substantially improve the chances of academic success. IV. IDEA 1997 AND 2004 REAUTHORIZATION
The Individuals with Disabilities Education Improvement Act (IDEA) continues to define FAPE as “special education and related services that . . . meet the standards of the state educational agency.”16 The definition is parallel to the original language of the legislation, but today it carries a more academic-centered meaning. At the time the Supreme Court decided Rowley in 1982, most state standards spoke to the process in which services would be provided to students, but did not involve substantive requirements for provision of the educational services. Today state and federal performance objectives address the essence of what students should know and be able to do. The standards-based reform movement has incorporated language in guidelines to educational institutions regarding curriculum content, expected levels of demonstrated achievement, and benchmarks based on assessment measures. Under current mandates, in order to accomplish FAPE, students without special needs must meet state curricular and achievement standards for their respective grade levels.17 These standards are based on content and proficiency standards rooted in a core curriculum which each state must create along with specific assessment measures.
The standards-based approach was integrated into the statute in two reauthorized phases. The 1997 IDEA amendments were the first to require demonstrated assessment of students with disabilities, marking a significant shift from the Supreme Court’s decision in Rowley. These amendments established high expectations for special needs children to achieve real educational results. The amendments changed the focus of IDEA from merely providing access to an education, as the Court noted in Rowley, to requiring measured educational improvement. These changes were made explicit in the House Committee Report:
This Committee believes that the critical issue now is to place greater emphasis on improving student performance and ensuring that children with disabilities receive a quality public education. Educational achievement for children with disabilities, while improving, is still less than satisfactory.
This review and authorization of the IDEA is needed to move to the next step of providing special education and related services to children with disabilities: to improve and increase their educational achievement.18
The No Child Left Behind Act, signed into law in early 2002, emphasized high academic standards for all children. As noted, this included disabled children. Under NCLB, state content standards must: 1) specify what children are expected to know and do; 2) contain rigorous content; and 3) encourage the teaching of advanced skills.19 State achievement standards must be aligned with content standards and must describe two levels of high achievement: proficient and advanced.20 A third level of achievement called “basic” is required to provide complete information about the progress of students towards meeting the proficient or advanced levels.21 NCLB makes it clear that, under federal law, students with disabilities are entitled to and expected to meet the same high academic standards as non-disabled children.
The standards movement assumes that all students can achieve high levels of learning if they receive high expectations, clearly defined standards, and effective teaching to support achievement. These high expectations in state education standards, however, are at odds with the core holding in Rowley that school districts only need to meet the minimalist “some educational benefit” standard. The shift from process to outcome, which is at the heart of the standards-based movement, also contradicts the Rowley finding that the purpose of the IDEA is to provide access to education. The movement’s emphasis on content and proficiency focuses on what students actually learn, not necessarily the process by which they learn. Special education, on the other hand, has traditionally focused on the process of providing services to students. Therefore, it has been hypothesized that it will be necessary for local and state educational agencies to incorporate state educational content and proficiency standards into the statutory definition of FAPE so that high expectations are included in the IEPs of students with disabilities. It has also been suggested that courts may use content and proficiency standards to assess whether a school has provided a child with a FAPE.
In early 2004, the United States Congress again reauthorized IDEA with the latest version entitled the Individuals with Disabilities Education Improvement Act (IDEA) or IDEA04.22 This more recent iteration of the legislation retains the basic foundation, but also illustrates the influence of NCLB requirements of academic proficiency for all disabled students. The statute explicitly mandates that states establish performance goals for children with disabilities consistent with the goals and standards set for all children.23 Specifically, the state must establish goals for the performance of children with disabilities that are the same as the state’s definition of adequate yearly progress. This must include the state’s objective of progress for children with disabilities consistent, to the extent appropriate, with any other goals and standards for children established by the state.24 Furthermore, the state must establish performance indicators that assess progress toward achieving the goals described above, including measurable annual objectives for progress by children with disabilities.25
The United States Department of Education has only recently issued regulations necessary to ensure compliance with the IDEA statute. These final regulations were not complete until summer 2006 and did not take effect until October of the same year. The guidelines follow NCLB legislation and the IDEA statute with the requirement for “highly qualified teachers.” Such teachers must have earned at least a bachelor’s degree at an accredited institution, possess a teacher’s license for the respective state, and be able to demonstrate knowledge of the content areas for subject matter and grade level.26 The regulations extend the statutory requirements permitting states to create “high[ly] objective uniform state standard[s] of evaluation” or HOUSSE standards, “by which special education teachers can demonstrate competency in core academic subjects they teach.”27 One researcher further defined such standards:
[A] single HOUSSE covering multiple subjects is permitted at all grade levels, as long as the separate HOUSSE does not establish a lower standard for content knowledge than is expected of general education teachers. Special educators typically have pedagogical training that is different from that of general educators, and presumably this new standard allows special education methods, assessment procedures, behavior management competencies, and other evidence-based practices to be introduced in a special education HOUSSE. The new standard, however, is unable to address concerns that recruitment and retention of special educators is being harmed by excessively strict academic subject matter competency requirements for special educators.28
Other FAPE-related provisions are equally important. The Code of Federal Regulations makes it clear that a child’s IEP must include a statement of the child’s present levels of academic achievement and functional performance, including how the child’s disability affects involvement and progress in the general education curriculum (i.e., the same curriculum that non-disabled children learn).29 The general education curriculum is presumed to include content and proficiency standards for student achievement; hence, it is necessary for a child’s present levels of academic achievement and functional performance in his/her IEP to directly reference the state content and proficiency standards that are articulated in the general curriculum standards for the school district.
The Regulations also specify that a child’s IEP must include a statement of measurable annual goals, academic and functional, designed to meet the child’s needs that result from the child’s disability. This is to enable the child to make progress in the general education curriculum.30 Again, this language suggests that IEPs now must include a statement of measurable annual goals designed to enable the child to be involved and make progress in the state content and proficiency standards articulated in the general education curriculum.
The Regulations state that an IEP must include a statement of any individual, appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on state and district-wide assessments. If the IEP team determines that the child must take an alternate assessment other than the state or districtwide assessment of student achievement, a statement of why the child cannot participate in the regular assessment must be clearly articulated.31
Finally, regulations of the No Child Left Behind Act state that “[a]ll children with disabilities are included in all general State and districtwide assessment programs, including assessments described under section . . .[6311 of this title]. . . with appropriate accommodations and alternate assessments where necessary and as indicated in their respective individualized education programs.”32 Almost immediately exceptions were realized for students with the most severe cognitive disabilities.33 These are students with severe cognitive disabilities who are unlikely to meet grade level testing with the assessments measuring nondisabled children. As such, NCLB now permits school districts to use alternate achievement standards to evaluate the performance of these students. Beginning in 2003, schools could include the assessments of such students, said to represent approximately 1% of all students, within their annual yearly progress totals. Just recently, Margaret Spellings, U.S. Secretary of Education, also announced new guidelines to allow an additional 2% of students to be tested alternatively.34 These are the socalled “gap kids” or disabled students with “persistent academic difficulties,” who do not fit into the category of children with “significant cognitive difficulties.” These students can make significant progress, but may not reach grade-level achievement standards within the state’s time frame. Such students are assessed on modified academic standards and take their tests based on these standards. These scores may also be blended in annual yearly progress reports. The two alternative assessments taken together would represent testing for 3% of all students or approximately 30% of students with special needs. Supporters of special education students have raised concerns based on the 1 %/2% testing scheme, suggesting that this would be a facial violation of NCLB and IDEA04 because it could deny students the possibility of participating in the general curriculum. It is more likely, however, that the regulations may alleviate dilemmas for students who could not meet the regular standards other students face. In fact, an argument could be made that the exceptions actually follow the principles established in the legislation, designed for students who need greater intervention; the laws were actually premised upon individualized instruction, and the creation of goals and objectives based on the unique needs of the student.
Concerns about the vast majority of students with special needs, or those presumed to be able to reach state-based achievement standards through educational assessments, represents another story. A real question is whether the new legislation can be interpreted to redefine free appropriate public education where content and proficiency standards of the general curriculum command that special needs students be educated to their maximum abilities. Recall the Supreme Court ruled in the Rowley decision that school districts were only obligated to educate the student so as to achieve “some benefit.”
V. INTERPRETATIONS OF FAPE SINCE ROWLEY
Continued research on interpretations of the standards-based movement, as legislated in NCLB and IDEA, yield the conclusion that emphasizing demonstrated educational accountability does not necessarily translate into an education that enables special needs children to maximize their potential. As noted in previous research, decisions of the courts can be divided into requirements of “meaningful benefit,””some or adequate benefit” and” a mixed standard.”35 Few courts have ruled that that the education statutes and regulations support re-interpretation of Rowley. An analysis of some of the few decided cases follows.
A. “Meaningful Benefit” Standard
In Polk v. Central Susquehanna Intermediate Unit 1636 the Court of Appeals for the Third Circuit interpreted the Rowley standard to require more than a de minimis benefit to a special needs student.37 In Polk, parents of a child with mental and physical disabilities wanted direct handson therapy from a physical therapist, rather than a teacher, as a related service. Agreeing with the parents about the need for professional treatment, the appeals court ruled that the anticipated benefit must be meaningful and, therefore, more than trivial progress must occur.38 The Polk court stated that the standard was more than a “toothless standard” and declared that a FAPE required more than the mere prevention of regression.39 In a very recent decision, Kirby v. Cabell County Board of Education,40 from the Southern District Court of West Virginia, a federal court followed the “meaningful benefit” standard, stating that IDEA “does not require providing every available service necessary to maximize a disabled child’s potential, [and] ‘a school district cannot discharge its duty … by providing a program that provides only de minimis or trivial academic achievement.'”41 The case also notes the importance of students with disabilities participating, as much as possible, in the same activities as students without disabilities. The case involved an eighteen year old student with non-verbal learning disorders: Asperger’s disorder, attention deficit disorder, a speech and language disorder, dysgraphia, and specific learning disabilities. The plaintiff in the case challenged the previous decision of the impartial hearing on an independent evaluation, appropriateness of the defendant’s IEP, private school placement, and reimbursement. In bringing the claim, the plaintiff contended that NCLB “imposes additional obligations on the District in regards to the level of educational benefit required by IDEA.”42 The court rejected the plaintiff’s claim, finding there is “no language in [NCLB] that places additional obligations on the development or assessment of a child’s IEP.”43 Rather, the court found that the statute places responsibility on the state to adopt “challenging academic content standards and challenging student academic achievement standards to carry out the state’s plan under the Act” and that this obligation applies to all students.44 The court found that NCLB “does not contain specific obligations to children with disabilities nor does it alter the Court’s standard of review [of] [IEPs].”45
B. “Some or Adequate Benefit” Standard
Federal courts, especially in recent decisions, interpret the floor of “some benefit” to be below the one provided in Polk and Kirby. In School Board of Lee County v. MM,46 a Florida district court addressed a request for reinterpretation of FAPE in light of NCLB and its impact on IDEA04. The case involved complaints about the adequacy of an IEP for a seven year old student with a specific learning disability, speech and language impairment, attention deficit hyperactivity disorder, and microcephaly. The court followed the “some or adequate benefit” standard, stating that “a child must be provided with ‘a basic floor of opportunity’ that affords ‘some’ educational benefit, but the outcome need not maximize the child’s education.”47 The court also stated that a “student is only entitled to some educational benefit; the benefit need not be maximized to be adequate.”48 The court noted that, in addition to the “some or adequate benefit” standard, education is a fundamental value in Florida and that it is, therefore, “a paramount duty of the state to make adequate provision for the education of all children residing within its borders.”49 The judgment, nevertheless, rejected the argument brought by the student that references to “high quality education” elevates the substantive component of the FAPE for Florida children and that NCLB establishes a higher state standard which requires that a child’s potential be maximized.50 In evaluating whether a higher standard is applicable, the court differentiated cases where a statute requires a state to ensure every child a fair and full opportunity to reach his full potential. The court found that given the well-established nature of the federal standard, an intent to impose an enhanced requirement for IDEA must be more clearly stated in NCLB and that there are no court decisions finding a requirement in Florida that education be maximized in the IDEA context. These cases, according to the court, continue to impose the Rowley standard, followed in Florida precedent, that “there is no requirement to maximize each child’s potential.”51
In Mr. C. v. Maine School Administrative School District52 the Court of Appeals for the First Circuit also applied the “some or adequate benefit” standard with regards to FAPE by declaring that IDEA “does not promise perfect solutions . . . [but rather] sets modest goals . . . emphasiz[ing] an appropriate, rather than ideal, education; requiring] an adequate, rather than an optimal, IEP.”53 “Appropriateness and adequacy,” the court continues, “are terms of moderation.”54 It follows that, although an IEP must afford some educational benefit, the benefit conferred need not reach the highest attainable level or even the level needed to maximize the child’s potential.
In drawing this conclusion the court rejected the plaintiff’s argument that the 1997 and 2004 amendments to IDEA rendered pre- 2004 case law obsolete and raised the bar with respect to the FAPE standard.” The court noted that the plaintiffs relied on J.L. v. Mercer Island School District* and that the First Circuit expressly rejected this argument in 2004. see L.T., T.B. and E.B. ex rel. N.B. v. Warwick School Community District51 (“This court has continued to apply the Rowley standard in cases following the 1997 amendments, as have several of our sister circuits. And that is for good reason. The Rowley standard recognizes that courts are ill-equipped to second-guess reasonable choices that school districts have made among appropriate instructional methods.”)
The court also rejected the plaintiff’s argument that Winkelman v. Parma City School District58 requires that the combination of the 1997 and 2004 amendments supersede the Rowley standard. This claim was rejected because the passage cited from Winkelman “merely noted the unremarkable fact that Rowley happened to have construed the meaning of FAPE in the precursor statute to the IDEA… [t]he court neither stated nor suggested that the standard set forth in the Rowley decision had been superseded by either the 1997 or 2004 amendments to IDEA.”59 C. Mixed Standard of the Seventh Circuit
The Court of Appeals for the Seventh Circuit is alone in its use of a mixed standard to determine the legal criteria for FAPE.60 This is best delineated in Alex R. ex. rel Beth R. v. Forrestville Valley Community Unit School District Number 221 in the following passage:
An IEP passes muster provided that it is “reasonably calculated to enable the child to receive educational benefits,” or in other words, when it is “likely to produce progress, not regression or trivial educational advancement.” The requisite degree of reasonable, likely progress varies, depending on the student’s abilities. Under Rowley, “while one might demand only minimal results in the case of the most severely handicapped children, such results would be insufficient in the case of other children.” Objective factors, such as the regular advancement from grade to grade, and achievement of passing grades, usually show satisfactory progress.61
Board of Ottawa Township High School District 140 v. The United States Department of Education62 in the Northern District of Illinois follows the same reasoning. The plaintiffs in the case were the school boards of the Ottawa Township High School and Elementary School districts, four special education students, and their parents. Collectively they brought complaints against the United States Department of Education, the Illinois State Board of Education, and the leadership of both agencies. Plaintiffs sought a declaration that portions of NCLB violated the IDEA. The District Court disposed of the case on standing grounds, reaching the merits of plaintiffs’ arguments only in dicta. With regard to standing, the court held that the plaintiff school districts failed to allege any current or imminent harm. Id. Specifically, the court held that those sections of NCLB containing corrective measures did not apply to the first of the two plaintiff school districts because it had not accepted Title I funds, and was therefore exempt from those sections of the Act. Id. The court rejected that district’s argument that the State of Illinois’ acceptance of Title I funds forced the district to comply with NCLB. Id.
With regard to the second school district, the court acknowledged that it had accepted Title I funds, but that it still lacked standing because the occurrence of the harms of which it complained- changing curricula and losing local control of the district-were too remote and speculative. Specifically, the school board claimed that NCLB’s creation of adequate yearly progress (“AYP”), used to determine the extent to which a district is meeting a states’ academic achievement standards, violated IDEA’S requirement that all children with disabilities are entitled to a FAPE. Under NCLB, nearly all students (except for a very small percentage with the most serious cognitive disabilities) are held to the same standard- achievement scores. The Plaintiff failed to make AYP because most of their students with disabilities were tested at grade level standards rather than standards established by their IEPs. The board alleged that, had the proficiency scores of the students with disabilities been excluded from the calculation, it would have made AYP.
The court rejected in dicta the argument that NCLB achievement standards harm children with disabilities because those children are held to the same standards as students without disabilities. First, the Court stated that the statutes provide for alternate assessments and alternative academic achievement standards for children with disabilities. second, the court reasoned that NCLB does not force children, protected by IDEA, to do anything contrary to IDEA’S guarantee of a FAPE. The court rejected all of the plaintiffs’ positions, relying heavily on alternative assessment allowances in NCLB:
IDEA requires all disabled children included in statewide assessment programs, including NCLB assessments, to take alternative assessments, if required by their IEPs. 20 U.S.C. [section]1412 (a)(16)(A). Alternative assessments are allowed for “children with disabilities… who cannot participate in regular assessments under subparagraph (A) with accommodations as indicated in their respective individualized education programs ” 20 U.S.C. [section] 1412 (a)(16)(C)(i) (emphasis added). These alternate assessments must be aligned with, not equal, the State’s challenging academic content standards and challenging student academic achievement standards; and also measure the achievement of students with disabilities against alternote academic achievement standards, if the State has adopted such alternate academic achievement standards permitted under the regulated promulgated to carry out [section]6311(b)(l). 20 U.S.C. [section]1412 (a)( 16(C)(ii).63
The court also pointed to the reasonable adaptations and accommodations that are available to students with disabilities as reasons to find NCBL did not violate IDEA. The plaintiffs’ complaint, in addition, asserted that NCLB only allowed alternate assessments for students with the most “serious cognitive disabilities” rather than all students with disabilities, and that this gap in the alignment of the statutes resulted in violation of IDEA’s main purposes. The court rejected this argument because there had been “no showing that holding disabled children to the same achievement standards as non-disabled children is in itself harmful or violative of IDEA’S guarantee of a [FAPE].”64 The Court again points to the inclusion of children with disabilities in alternative assessments and the alignment of alternate assessments with the State’s content standards as consistent with the purposes state in IDEA.
On appeal, the Seventh Circuit similarly failed to reach the merits of whether IDEA and NCLB impose inconsistent obligations upon school districts, although it acknowledged that both plaintiff school districts had standing to sue. The court accepted the argument that the school districts were required to comply with NCLB by virtue of the state’s acceptance of Title I funds, and further reasoned that the districts had standing because satisfying the requirements of NCLB is expensive and may cost more than a district receives in federal grants. The court, nonetheless, declined to address-or to remand for consideration of-the merits of the plaintiffs’ argument regarding the alleged inconsistent obligations imposed on the districts by IDEA and NCLB. The court held, as a matter of statutory interpretation, that any inconsistency between the two statutes must be resolved in favor of NCLB, as it was the statute enacted latest in time.65
D. The United States Office of Civil Rights
Amy June Rowley, the plaintiff in the Supreme Court case by that famous name, was a profoundly deaf student performing at a wellabove- average level even without the accommodation of a sign language interpreter she requested from her school district. Case law above would suggest that not much has changed in 25 years regarding a legal interpretation of FAPE. A recent executive opinion by the United States Department of Education Office of Civil Rights may, however, suggest that students like Amy are entitled to accommodations to meet the achievement levels of NCLB as delineated in their Individualized Education Plans. The opinion originated from a report that some schools and school districts have refused to permit qualified students with disabilities to participate in accelerated and gifted and talented academic programs or that schools condition participation in such programs on the abandonment of special education and related services. The Office of Civil Rights (OCR) found that these practices are inconsistent with section 504 of the Rehabilitation Act of 1973,66 Title II of the Americans with Disabilities Act,67 and the Individuals with Disabilities Improvement Act. Specifically with regard to FAPE, the Office instructed districts where participation by a student with a disability in an accelerated class or program is considered part of the regular education or the regular classes referenced in the section 504 and the IDEA regulations. Thus, if a qualified student with a disability requires related aids and services to participate in a regular education class or program, then a school cannot deny that student the needed related aids and services in an accelerated class or program.
OCR gave the following example: If a student’s IEP or plan under Section 504 provides for Braille materials in order to participate in the regular education program, and she enrolls in an accelerated or advanced history class, then she also must receive Braille materials for that class. The same would be true for other needed related aids and services such as extended time on tests or the use of a computer to take notes. OCR also cautioned school districts that conditioning enrollment in an advanced class or program on the forfeiture of needed special education or related aids and services. OCR noted that this is inconsistent with the principle of individualized determinations, and that the requirement for such determinations is violated when schools ignore the student’s individual needs and automatically deny a qualified student with a disability requisite related aids and services in an accelerated class or program.68
VI. CONCLUSION
The foregoing discussion demonstrates that the Individuals with Disabilities Education Improvement Act and No Child Left Behind support millions of children with special needs in gaining access to public education. It also alerts us that, for the most part, the education provided offers little in the way of promoting intervention leading toward maximum scholastic benefit. Progress has been made but, by and large, little has changed in the interpretation of a free appropriate public education since the landmark decision of Board of Education of the Hendrick Hudson Central School District v. Rowley decided 25 years ago. Congressional action protecting the rights of all students, with particular emphasis on students with special needs, has been necessary and impressive, but reliance on judicial interpretations has resulted in continued burdens on this population, particularly students who can perform at high academic levels. The few court cases addressing whether NCLB has heightened the requirements of FAPE or is violative of IDEA have yielded negative answers. This article has presented information on the Rowley decision, the FAPE standards in IDEA, the national standards fostering a general curriculum, and the NCLB standards for reaching goals, and case law interpreting FAPE. One ray of hope is found in a very recent executive opinion prepared by the United States Office of Education Office of Civil Rights. This executive rendering posits that a possible violation of IDEA, the Americans with Disabilities Act, and section 504 of the Civil Rights Act of 1973 may occur if qualified students with disabilities are refused the opportunity to participate in accelerated and gifted and talented academic programs or that schools condition participation in such programs on the abandonment of special education and related services. Further research in this area must wait until the OCR opinion prevails.
1. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, (1982).
2. 20 U.S.C. [section][section] 1400 et. seq.
3. At the time of the Rowley decision, the statute was called the Education for All Handicapped Children’s Education Act (EAHCA).
4. Rowley 458 U.S. at 203.
5. Id. at 203-204.
6. Id. at 198.
7. Id. at 200.
8. Id. at 201.
9. Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984) (IDEA “does not secure the best education money can buy;” rather it requires an “appropriate education” for the child); Hessler v. State Bd. of Educ., 700 F.2d 134, 139 (4th Cir. 1983) (education need not be the best education).
10. See, e.g., Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir. 1990) (affirming district court finding that day program constituted FAPE because student made good “educational progress” in that setting); Evans v. Dist. No. 17, 841 F.2d 824, 831 (8th Cir. 1988) (Rowley directive to allow school district to choose method of instruction means that “if a child is progressing satisfactorily” with the current method, court is not to question whether another method might work better); Abrahamson v. Hershman, 701 F.2d 223, 228 (1st Cir. 1983) (“educational progress” necessary for FAPE).
11. Scott Johnson, Reexamining Rowley: A New Focus in Special Education Law, 2003 BYU Educ. & L.J. 561 (2003).
12. 20 U.S.C. [section][section] 6301 et. seq.
13. U.S. Const, article I, [section] 8.
14. Stephen Rosenbaum, Aligning or Maligning: Getting Inside a New IDEA, Getting Behind No Child Left Behind and Getting Outside of it All, 15 HASTINGS WOMEN’S L.J. 1, 27-29 (2004).
15. Southern Disability Law Center, http://www.sdlcenter.org/ issues.htm (last visited Feb. 22, 2008).
16. 20 U.S.C. [section] 1401(9) (2006).
17. 20 U.S.C. [section] 1401(9)(B).
18. H.R. Rpt. 105-95, at 83-84 (May 13, 1997).
19. 20 U.S.C. [section]6311 (b)(1)(D).
20. 20 U.S.C. [section] 6311(b)(1)(D)(ii).
21. Id.
22. 20 U.S.C. [section][section] 1400 et. seq.
23. 20 U.S.C. [section] 1412(a)(15).
24. 20 U.S.C. [section] 1412(a)(15) (A)(ii, iv).
25. 20 U.S.C. [section] 1412(a)(15)(B).
26. 20 U.S.C. [section] 1401(10).
27. Dixie S. Huefner, The Final Regulations for the Individuals with Disabilities Education Improvement Act, 217 Educ. L. Rep. 1, 2- 3 (2007).
28. Id.
29. 34 C.F.R. [section] 300.320(a)(1)(i).
30. 34 C.F.R. [section] 300.320(a)(2)(i).
31. 34 C.F.R. [section] 300.320 (a)(6).
32. 20 U.S.C. [section] 1412(16).
33. 34 C.F.R. [section]200.13.
34. “U.S. Department of Education, Secretary Spellings Announces New Regulations to More Accurately Assess Students with Disabilities,” (April 4, 2007), http://www.ed.gov/ print/news/ pressreleases/2007/04/04042007.html. (last visited December 15, 2007).
35. P.T.K. Daniel and Jill Meinhardt, Valuing the Education of Students with Disabilities: Has Government Legislation Caused a Keinterpretation of a Free Appropriate Public Education?, 222 Educ. L. Rep. 515 (2007).
36. 853 F.2d 171 (3d Cir.1988), cert, denied, 488 U.S. 1030 (1989).
37. Id. at 184.
38. Id.
39. Id. at 179.
40. Kirby v. Cabell County Bd. Of Educ, 2006 WL 2691435 (S.D. W. Va., September 19, 2006).
41. Id. at 2, citing Bd. of Educ. of the County of Kanawha v. Michael M., 95 F. Supp.2d 600,607 (S.D. W. Va. 2000) (citations omitted).
42. Id. at 6.
43. Id.
44. Id.
45. Id.
46. Sch. Bd. of Lee County, Fl. v. M.M., 2007 W.L. 983274 (M.D. Fla., March 27, 2007).
47. Id. at 3, citing Walker Co. Sch. Dist. v. Bennett, 203 F. 3d 1293, 1296 n. 10 (11th Cir. 2000).
48. Id. at 3, citing Devine v. Indian River County Sch. Bd, 249 F. 3d 1289, 1292 (11th Cir. 2001).
49. Id. at 3.
50. Id. at 4.
51. Id., citing M.H. v Nassau County Sch. Bd, 918 So. 2d 316, 318 n. 1 (Fla. Dist. Ct. App. 2005).
52. Mr. C. v. Me. Sch. Admin. Dist. No. 6, 2007 W.L. 4206166 (D. Me., Nov. 28, 2007).
53. Id. at 26.
54. Id.
55. Id. at 27, n.31.
56. J.L. v. Mercer Island. Sch. Dist., 2006 W.L. 3628033 (W.D. Wash., Dec. 8, 2006).
57. L.T., T.B. and E.B. ex rel. N.B. v. Warwick Sch. Cmty. Dist., 361 F. 3d 80, 83 (1st Cir., 2004).
58. Winkelman ex. rel. Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994 (2007).
59. 2007 W.L. 4206166 at 27 n. 31.
60. Lester Aron, Too Much or Not Enough: How Have the Circuit Courts Defined a Free Appropriate Public Education After Rowley, 39 SUFFOLK U. L. REV. 1, 7 (2005).
61. Alex R. ex. rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 227, 375 F. 3d 603, 615 (7th Cir. 2004), cert, denied, 125 S. Ct. 628 (2004)).
62. Bd. of Ottawa Twp. High Sch. Dist. 140 v U.S. Dept. of Educ., 2007 WL 1017808 (N.D. Ill., March 31, 2007).
63. Id. at 7.
64. Id. at 8.
65. Bd. of Educ. of Ottawa Twp. High Sch. Dist. 140 v. Spellings, 517 F.3d 922, (7th Cir. 2008).
66. 29 U.S.C. [section] 794(a).
67. 42 U.S.C. [section] 12102 et. seq.
68. “United States Office of Education: Office of Civil Rights, Access by Students with Disabilities to Accelerated Programs,” (December 26, 2007). http://www.ed.gov/about/offices/ list/ocr/ letters/colleague-20071226.html (last visited January 2, 2008).
PHILIP T.K. DANIEL*
* Phillip T.K. Daniel is the William and Marie Flesher Professor of Educational Administration and an Adjunct Professor of Law at the Ohio State University in Columbus, Ohio.
Copyright Jefferson Law Book Company Jul 2008
(c) 2008 Journal of Law and Education. Provided by ProQuest Information and Learning. All rights Reserved.
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