REEXAMINING ROWLEY:

A NEW Focus IN SPEClALEDUCATION LAw

Scott F. Joh7UJOn*
... The Individuals with Disabilities Education Act (IDEA)
iMuires t~t students be provided with a Fi'ee and Appmpriate
. Public Education (FAPE). Exactly what FAPE means or
~sis.an.elusive topic. Twenty yeat'8 ago, in Board of
EdUcati9.,.;v. Rowley, the United States Supreme Court held.
~trA.PE .requires servioos that provide students with "some
:edueational benefit."}
Rowley isundoubted1y the most
Un,portantand intluentbU case in .special. education laW'. The
"some ed\lcatiol18lbenefit". standard permeates just about
e~ty aspect of special education because it is the standard
.ap.inst"hich all. semoosareDieasured. Subsequent . cases
ha.iveexpand,ed on thiS "soIDe educational benefit" requirement
~~ha~butitremaiJlsessentially intact today.
Mueh :us been written about Rowley and its .impact in
~.education law. 2
This paper presents a new and
dift"erent perspectiw on Rowley .by. examining the Rowley
ePmdardmr FAPE against the evolving . backdrop of state
etl1icatioJJ8lstandardsand litigation over what constitutes an
adQuate.ed.UC8.tion ~r state oonstitutional law. Applying
tMBe ~.toRowleYs analysis and reasoning, this paper
concludes that the "some educational benefit" standard no
IQDler accurately reflects the requirements of the IDEA.
Rather,. state standards . arid educational adequacy
requ:irem~nts themselveB.provide the substantive requirements
.

."

*.A~ . at

.Law. Stem,. VoJiDslry ... Cal.......n, P.A., CoIMlDl'd,. N_

H&DllN'lUnt, Co-couDee}ia ~tI.Gouenwr, 700 A2d 1863 (N.H. 1997); Pioo&eeor

Of ~, ~. UDiYenity &boola! Law; J.D. F:nmkIio. Pierce La.. C81lter. Tbi,s
~r ill bli.ee41ipoD 11 preeeDtPiOa oriiiiWJy cmm III; the z001 Eclw:atioD :r.w
In8titute .Ilt Fnmklin Pierce Law Ceuwr.. I WouJd lib to thank PIofBIeor Sarah
~1d IiDll ~Mark 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 law
review artil:les.
..

561

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562

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of FAPE, exceeding the "some educational benefit" benchmark.

Such a conclusion requires a fundamental change in the way
courts, school districts, and, parents view special education
services;
This paper first lays the background for and explains the
Rowley decision. Next, this paper discusses three important
changes since Rowley was decided: (1) litigation over what
constitutes an adequate education understate constitutional
law, (2) state educational standards, and (3) the 1997
amendments to the IDEA, and how' these changes. render
Rowley's "some educational benefits" standarcl invalid. Finally,
this paper concludee with a discussion of how to incorporate
high' educational standards and. expectations into special
education services as required by the amended IDEA.
I. BACKGROUND

The Individuals with Disabilities Education. Act (IDEA)

requires state and local schooL districts to provide students
with disabilities with a "free and appropriate public education"
(FAPE). FAPE is defined by the IDEA as special education and
related servicesthat:
(A) have been provided at public expense...without
charge [to the parents];
(B) meet the standards of the State educational agency;

(C) .include an ~ppropriatepreschool, elementary, or

secondary schooleducation in the State involved; and
(D) are provided in conformity with the student's
individualized education program....3
While the statute provides a basic definition of FAPE, it does
not describe the substantive requirements of FAPE, nor set any
requisite standards or levels. of learning achievement for
students With disabilities. Because of this lack of substance,
courts have. struggled when asked to determine if a school
district has provided FAPE to a student. 5
3. 20 U.S.C. f 1401(8) (West 2002).
4. BeL ofEduc. v. Michael M., 96 F.supp.2cl600, 607 (B.D. W. Va. 2000).
5. See ladonna 1.. Boeckman, Buwwin,g C1Ie Key w Public Educotio,,: 'l"M Effec"
of Judicial DetermiAatio1lll of the Individuals with DiBabume. EdutotW1& Act 01&
DUiabled a"d Non.diBabled Stude",.. 46 Drake L. Rev. 8M, 866-868 (1998).

561]

REEXAMINING ROWLEY

563

In Board of Education v. Rowley, 6 the United States

SUpreme . Court attempted to determine' the substantive
.stand8.idaof FAPE. The pl.tlio.tiff in Rowley argued that FAPE
required .schools tq maximize the potential of handicapped
CbiblrencomJDensuratewith the oPPOIt1JDij;y provided to other
cbildJen.Thetrial court' agreed with' this proportional
maximizatioDstandard, 7 and the Court of Appeals affirmed the
trialcou:rt's decision without much conunent.8
The Supreme',. Court overturned the ciJcuit .court's decision
A.iding . that the IDEA (then known astheEHA or Education
Ilamticapped. Act) did .not require. schools to proportionally
maxhniu the pOtential of handicapped. children. Rather, the
Couit . ~. that.' Congress had more moderate goals in mind.
~S\lpretne Court nilied, upon the text and legislative history
of the statute to find that Congressional intent was only to
Pl'OV:lde a. "basic floor of oppo1'tUDity" to students with
disabilitie$by providing them access to public education as
opposed'tQaddreesiDg the q,uality of education .received oneein
schOO1.9 The Cou:rtstated:
By passing the Act, Congress sought primarily to make
public education available'tobandicapped children. But
in seeking to p ~ such, access to public education,
Congress. did not. impose upon the States any greater
sUbStantive educational standard than .would be
,neOO:ssarY to m&kefJilCh ~88 meaningfUl. ...Thus, the
intent ottbeActwas more to opeD the door of public
education to handicapped children on appropriate terms
.'. than to j1Jal'antee any particular level ofedueation onoe
inside;10'
The Courtdetel"Jirined, . however, that some substantive

starida.rd ,for' FAPE was "implicit'in the oongresaional purpose

of proViding access to a free approPriate public education. "11
The Courtfuund
thatthe substantive,
standard for FAPE
.
.
req~ iJlstruction designed to" meet the unique needs of the
handicapped 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. 01 Educ.,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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B.Y.U. EDUCATION AND LAW JOURNAL

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to permit the child "to benefit" .from the instruction. 12 The

Court noted that the statute itself provided a checklist of
requirements for FAPEthat included providing instruction at
public expense and under public supervision, providing
instruction. that both met the State's educational standards
and approximated the grade levels used in the State's regular
education system, .and providing instruction that comported
with the child's individUalized educational plan (1EP)~18
The Court ooncluded. that ."if personalized instruction is
providedwithsu{ficientsupportive services to permit the child
to benefit -froiD the instruction, and the other items on the
definitional checklist are satisfied, the child is receiving a
FAPE as defined by the Act.l. The Court stated that when
deternUning whether a student . benefited from the sentices
provided, "the achievement of passing marks and adva.nrement
from grade.to grade will be one important factor in determining
educational benefit," because passing grades and grade
advancement .were methods of monitoring educational progI'eSB
for students being eduCated in regular cl.assrooms. 15
IL POSTRoWLEY
Subsequent court decisions interpret Rowley to mean that
the IDEA does not require schools to provide students with the
best or optimal education, nor to ensure that they receive
services to enable them to maximjze their potential 16 Instead,
schoolsare obligated only to offer services .that provide "some
educational benefit" to the student. Courts sometimes refer to
this as the "Cadillac versus Chevrolet" argument, with the
student being entitled to a serviceable Chevrolet as opposed to
a luxury Cadillae.l 7
12. ld. at 201.
13. ld. at 189.
14. ld.
15. Id. at 207 n. 28. The Row~ Court relied upon grades when a Btudent is
-mainatreamed- aDd educated in the replar education cluarooms of a public IlCbool
sywiem because it UBumedthat in Bucha situation, "the IYBt8m itself moaiton the
educational prolr888 of the child by adminiatering regular examinatiuna, awarding
grades, and permitting yearly adftllCement to -bieber grade levels fur those children
who 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. Doe e% reI. Doe II. Bd. of Educ., 9 F.3d 456, 459-460 (6th Cir. 1998);
D

REEXAMlNINGROWLEY

561]

565

Some 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 the
student's disability impacts their education. 18 . These courts
hold thatwhUe the IDEA does not requireasehool to maximize
a student'spotAmtial; the Btudent'spotential and ability must
be CQnsideredwbendetemrining whether he or she has
pqreseed and reoeiveded1icational benefit. 19 . Moreover, when
a studeDtdisplays considerable intellectual potential, the IDEA
requ.ires "a great deal Dio!'e than a negligible benefit."20
. De,spite. a .myriad of court decisions on the. topic, school
districts,parents, and courts still. have. little gUidance on bow
to assess FAPE or educational benefit. .The Rowley Court
mentiODedthat grades and advaucement from grade to grade
were factors in assessing benefit for mainstreamed students.
Thus, post-Rowley courts have viewed pa88ing grades and
p:ade~dvancementas important radom whend.etermining if a
student .:received educational benefit. 21 Grades for students
with .disabilities, .however; are often modified and lose their
validity as a measure ofbenefit or progre88. 2i
Somecourts have also looked to academic achievement
testing in addition to grades and grade advancement to
measure. educational benefit.28 These courts have relied upon
"objective" academictestB and scores on SUCC688ive tests to
measure 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 InrDiDI
andmeaniDcM bODefit); M.C. a: ret. J.e.v. C. Regl. St:A~ Dita. 81 F.3d 389 (3cI Cir.
19$i);~ 9F.3d at 4S8; 11I>loiid M~ v. CoMml'Ekh. CoB'" 910 F.2d 983, 981 (let
Cu. . ;{t9O)' ("'Ceucreu iDdUbitably. desired eflBctive reeUlta llDd dplOll8tZ'abJe
imp:tove~ fi:Jr the kre ~ ) ; ~ v. Bd. of Educ., 774 F.2d 828, 688 (4tb
CJr.ltHl5);~~v.G1'I!IlJteI' CkJr* CoUiaty SeA; Corp.. 96 F.8upp.2d.811 (S.D. IDd. 2000);
Roli$.v. Fra~Aam SeA. Comm., 44 F .8Upp.2clltM (D. Maa. IlJ88).
19. ~ 172 F.3d lit 147 (be1IIeIitmust be pulled in reJaiion to the child'.
poteutial);)lol(.uuJM., 910 F.3d at 81H (lIC8demic potI8Dtial ODe 1Bctor to be conaidered
wben addies8irig: sAldeDt'a Deeda).
20. llidlJewood, 172F.3cL .U47.

2~. 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 <M.D. Fla. 199&).
.22. R.B.v. Walli'll/lltwd; S6 IDBLR 32 (D. Coma. _1).
23. For,example, in ~ ~ Sdto(Jl ~ tbe court reviewed the
~tud.~11 lIOOieaOD the Wooclt:ock Jolmllou udelJileJiice IlDd8chieVemeDt teSt to _
the litudent's JI~ aDd Inmd that tile lICUree shOwed meaningful p!Op888, and
thua.tbe achOol hIId provided tllestodent cFAPE.200 F.3dat lU9-3IlO.

566

B.Y.U. EDUCATION AND LAW JOURNAL

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however,ha-ve .. produced varying results with . similar

information)l. The variance seems to be due to the fact that
courts do not have a substantive standard that defines what a
student should know and be able to do at a given point in time.
As a result, assessing benefit through improvement in test
ecoresbecomes a subjective analysis of whether a gain of a
certain amount is sufticient progrees or not.
The .lack of substantive . standards for FAPE,when
combined the current "Cadillac versus Chevrolet" perspective,
lowers expectations' and facilitates a min;lnalistic view of the
substantive' education.' that students with disabilities are
entitled toreeeive.When Congress reauthorized the IDEA in
1997, it expressly noted that low expectations for students with
disabilities impeded the implementation of the IDEAIII
Congress stated that educating students with disabilities could
24.. ~ ~ ~ Sc1tDolDUtrid. id. at 860, where the ~
grade equiValent8COltlti weft IJund to demoll8trlUe edacatioDal benefit:

MlJIoIIhide&
Math
Written laDpa.
Pusaae compo
Calculation
Applied problems
.Dictation
:Writing
WOld Identitication
Wold Attack

"""grades
3.1
1.9

5*I6dt grades

1.7
1.5
1.7
U

2.2
,3.3

%.0

8.0

3.6

1.6

1.8

%.8

1.4

2.6
2.1
1.8
2.1
2.6 .

1.8
0.7

~RbadiDB
'~eample8.

Baaic duat.er

2.8

1.8
3.8
3.3

2.1
13

Proofln&

4.4

2.9
3.9
6.0

2.8

2.6

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

Math

Readinc Recopitjon
Readinc Comp.
. SpeDiDg

GeDBr8l In1b

3"'grade
4.0
2.8
2.2

5.7
2.6
2.7

2.15

3.2

5.3

7.0

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

5*gNle

561}

, REEXAMINING ROWLEY

567

be ,more ~ffectiVe by "having high expectations fur such

childrelland ensuring their access in the general curriculum to
the DUUtimum extentpossible.p26
III. CHANGE IN THE LANDsCAPE

Three important eveD~'occurred after ,the Rowley decision,

all of ' wbich impact the validity of the "some educational
,benefit'" standard and change the nature of educational
serrieE$ that schools must provide studellts' who receive special
'edw:atiQn sentices, under the IDEA. ,The first' sigDificallt 'post
Rowley event is state litigation over the constitutional
'~Dlents of providingtpl "adeq\Ulte" education, to students,
includiDgstudents ,with diSabilities,understate constitutional
law. 'Anac:lequate education under :state constitutional law
reqUires the ~te to provide its', students' with', educational
servi~stargeted tQwards the acquisition of sufficient skills to
bes~ in eociety.&me of these Mqui:rements are at
-od4sWith. and requiie a higher level ofedueational services
than Rowley's "some educational benefit"' standard.
"The'seco.d eyentis tbeeducation standards movement that
~ted 'l;iigh expectations. for, all students, ,including' students
Withdieabilitles, by creatiDg generally applicable content and
Pl"Q~ciency standards.
These standards define academic
,P8rG:tJ1Danre levels and 'provide specific substantive
benChnUlrks that students should achieve during their
acadenriccareel'S.
,
'The third event isthe leauthorization of IDEA in 1997. At
, that'tune, Cp~ .expi'e~ ebanJed, the b:us of the mEA
fi'fnn' genera1accese' to education for childlenwith disabilities
tOhig~ e~tions ~d .~' educationalrQSUltB; Many of the
19&7'~ elilphasiZed that students with disabilities must
be 'P'D'rided with the same quality of ecJucational services
a.beady : provided to students ~ut, disabilities" including
aecessto 'curriculUDl that meets state educational standards.
These three, ,chang~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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An Adequate Education under State Constitutional Law

.Most states have state.constitutional provisions requiring

the state to provide educational services to students.27 Forty
four states have been. through. some type of litigation
concerning the educational requirements outlined by their
state constitutions.28 Tbemajority of these cases involved
challenges to. the state'ssy8tem of financing education.
Commentators organize school finance litigation into three
"waves," with some contending the last w8.veis ending and a
potential fourth is beginning.29.
Thefil'st two waves of school finance litigation dealt
p ~ with equal protection.. or equity, arguments
surrounding $Chaol ~g in local school districts. II) The third
wave of echool finance litigation has focused on. whether states
have a conStitUtional obligation to provide a certain level or
qwilityof edu~tion to its students. This qualitative level of
education isoftenrefened to 88 "8Jl.adequate education:'81
. Nwaerous state supreme courts have held that their
constitutions require . the state . to provide an adequate
education to all students.1l2 These d.ec:i$Qnsereate general state
law educational staDdartis aJidieqQirementB. These standards
are 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.ducatioIJal~: A Theory CIIId iU.1lnIedia. 28 U.
Mkh. J.L. Ref 481 (1995); ~.Iiapra D. 27; Kevin RaDdaJI McmilIaD, n.
~ Ti4e: The E~ FeanA W'ClVl!of SeItoolFiaonce BiJ(orm. LiIigatio" allod lhe
L~ ~ ~ 18 Ohio 81. U. 186'1 (1998); Deniae C.
Morpn,The 1'(ew Scltoo, .liVIonce. Liti.Ia~tL.' MbowletWiA6 .'I'hat Race Discrimi3otion
in PlWUcEdrM:aoon [sMOre T1Ian JUlle a 7.brc, 96 Nw. U. 1.. Rev. 99 (2001). For current
events On ~ funding Imption" <hUp:/Iwww.a0c8sl8dDet.work.OI.g/index.btmJ>.
29. CI~, ~D. 28; wii1i&m F. Dietz,Mar&a,Jeable Adequac.y Standards in
EducoeiqA:~rm LitiSOlioi&., 7( Wash. U. L.Q. 1198, 1196-1203(1996); Michael Helae.
Stale CoJIIIeicueio,.,. 8c1too' ~ Litigatioi&.,oM' lhe 'Third Wave"l' l'Tom Equity to
AdeqIiac:y.68Temp. 1..Bev.ll1Jl, 11117-119 (l99&);WiUiam B. Thro, ne Bird Wow:
The lrri,pact of lhe ~ ~ . cmd tao. Deeiaiou em lhe Future ef Public
ScItoo,FiN:uu:e &form ~ lfM.L. Educ. 219 (1980).
80. Heise, supra n . .2911t 111571158; Thro,supr'On.29.
81. Kelly. Thompson Cochran,. Beyond
FirIQACins: Defining cAe
ConsCUUCioIlO' 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. of E:ir:tIt:. Off. 0/ Educ. 6111 N.E.2d 1516; 548(1993); Claremom Sch. Di8t.

eouna;

Sc1aoo'

v. Gov., 708 A~2d 1863. 13156 (N.H. 1997) (Claremone 11).

REEXAMINING ROWLEY

561]

569

students with disabilities by the statutory provision that

requires FAPE to "meet state standards" and include "an
appropriate preschool. elementary, or secondary school
education in the State involved."33
Some courts hold that an adequate education is not a
minimal education. One of the earliest cases to address the
requisite qualitative level of educational services under a state
constitution was Pauley v. Kelly." In Pauley, the West Virginia
Supreme Court described the requisite quality of education
undertbeWe8t. VaginiaConstitution as onetbat "develops, as
best -the state of education .expertise allows, the minds, bodies
a..,ei. soci.almoraJity of its . charges to prepill'e them for useful
aJ).d happy occupations. recreation and citizenship, and does '90
eoonpurically."36
.
The oourt further found that the state had an obligation to
develop
. ,eve:r:y ~dto his or her capacity of (1) literacy; (2)
ability to a4d, subtmct.multiply and divide numbers;
(~) lmowiedle of:g()V~n$to the extelltthat the child
Will be equipped as a citizen to make informed choices
amOnlrJ)eI'8ODS and issUes that affect his own
.governaJi<:e; .(4) seIf~lmow1edge and knowledge of his or
:her total eQ,viromllent to allow the cbild to intelligently
choOse life work to know his or her optio:os; (5) work
'trilimngandadvanced ac;a~emic training as the child
may intelligently choose; (6) recreational pursuits; (7)
i:nte~stsin .all creative arts, suCh as music, theatre,
literatiire, and thevii;ual arts; (8) social ethics, both
behavioral and .abstract, to facilitate compatibility with
others in this 86ciety.86
Some years later, in Alabama Coolilionfor Equity, Inc. v.
. LTtur,t, an Alabama court held that the Alabama oonstitution
required the state to provide students with an education that
would eilBure:
33. 20 U.s.C.A.11401(8)(B), (0) (West ZOO%); NatlReaeucbCou:oc.il, ~

OM .. AU:S~Wi4A~arUlS-dards-Boeed
&torm 51-5! (LonaiDe M.
M
~.

.. PatridaMorieo
, .,.,
. ~
. . J. ~
...
.
D.o., N a tL Aaid.. PIetl8
. lDO'r\
"'u,),
Ifjchael DalilleDberg, ADerivtJtive ~ to Educatiort: How SIaNlDrds-Boeed
.8ducatiOa ~ lWe(iru:a tIle~ with Di.eobilities EducotioB Act, 15 Yale L.
.. PoIicyiev.829, ~l (199'7).
34. 266S.E.2d859 (W. Va. 1979).
35.Id. 877
36. Id.

at

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B.Y.D. EDUCATION AND LAW JOURNAL

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(viii) sufficient levels of acadenric or vocational skills to

enable public echoolstudents to compete favorably with
their counterparts in Alabama, in surrounding states,
across the nation, and throughout the world, in
academics or in the job market; and
(ix) .sufficient support .and guidance 80 that every
student feels a sense of self-worth and :ability to achieve,
and 80 that every student is encouraged to live up toms
or ber full human potential. 87
State constitutional mandates requiring states to develop
every child to his or her capacib' and enoourage them to live up
to their full human potential are directly at odds with the
Rowley basic floor of opportunity standard. Rowley rejected the
notion that the IDEA itself required states to maximjze a
student's potential. . Ina state where the state's constitution
requires such a stand.ax'd for. all students, however, the
requirement isincorporatedintothe.IDEA's definition ofFAPE
and should be the standard for students with disabilities. ll8
Any other approach would run afoul of the IDEA's
requirements. 89
Other state courts developed and applied similar
constitutional . requirements without express language
reg8.rd.iDg. IDaximising student potential, but these resulting
standm'ds.remamclea:tly contrary to the minimalist guideline
set by Rowley.J . For exampIe,the ~ntucky Supreme Court
decision in RoBe v. Councillor Better Education, Inc. 41 is
considered .one of the .se~lcases. with respect to the
req~JP,e~ts olan adeq~ educatiO~ In Rose, the court
found 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 of
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, at
689-48. At the time oi the Rowley decision, litipmn over a state', constitutional
ob~ationB to provide an adequate education was. in its infancy. The Court in Bowley
made . short ehrift of thia requirement in ita decision and did DOt addleu what an
appropriate education would be in Amy Rowley'estate.
89. Providinll difllrent lucatioDal etanclarda ibr students with disabilitiee could
aleoraiile equal protection OODCll!'D8. See Brow" I). BtL of Educ., 347 U.S. 483 (1915()
(edqcational ~ 8 must be pnMded eq-.Dy to alI).
4O.Thia objective is right in line with the lUD8ndmenta to the IDEA in 1997
discuesed i'ff/ro. The purpose of the IDEA iI 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 Rowle;y~ minimalist approach.
41. 790 S.W.2d 186.

u..

561]

REEXAMINING ROWLEY

571

(i)' sufficient. oral and written communication skills to

enable students to function in 'a complex and rapidly
ch8.nging civilization;

O.i) sufficient knowledge of economic, social, and political

sy8temstoenable the student to .make informed choices;
[m) sufficient undel'8tandingof governmental proresses
to enable' the student to understand the issues that

a:tfecthis or her community, state; and nation;

(iv) sut1icient self-knowlecigeand knowledge of his or

her men.tal and physical wellness;
. (v) s\UD.cientgl'Ounding in the arts to enable each

. student to appreciaW bis or her cultural and historical

heritage;
(vi)' .suft'icient training or preparation. fOr advanced
training ill either academic or weational fields 80 as to
enable . . eachc1rild 'to choose andpUI'SUe life work

intelligently; and

(vij)s~nt~ls of academic or vocational skills to

epablepublie school~ntsto .COJDpetefavorably with
thEtiI"COUn1;erpatts in sUrrotmding states, in academics
or in the ioti market.u
.

Several other state$UpJ,'elD~ ~ have. also adopted the

seven' 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 edu~tion.
The New ~pslrire 'Supreme Court stated in Claremont v.
Governor (ClaretnonJ Il),
'.
Given the 'compleXities of'ollr sooiety today, the State's
constitutio,mu duty,. ~Dds beyond' mere reading,
writi:ng, ' apd arithmetic.. It also, . includes broad
e4~~tional' opportunities. needed in today's society to
p~ .cit~Da fortheiT role as participants and as
pOW~t.UdCODlpetitqnintoday'8
m arketplace of ideas. A
eonstitutioJ;18Jly a:deq~te p~lic education is not a static
concept remWedfrom.
de~. 'of an evolving
world:. It is not the needs of the few but the critical
requirements of the' many .that it must address. Mere

thee

42. Id.at 212.

43. Seee.ll. Me1Juff:y, 615 N.E.2d at 554; Claremo,,', 708 A.2d at IM9.

572

RY.U. EDUCATION AND LAW JOURNAL

[2003

competence in the basic&--reading, writing, and

arithmetic-is insufficient in the waning days of the
twentieth century to insure that this State's public
school students are fully integrated into the world
around them; A broadexposure to the social, economic,
scientific. technological, and political realities of today's
society. is essential for our students to compete,
contribute, and :flourish in the tWenty-first century."
When states ." properly . incorporate these oonstitutional
requirements into the IDEA's definition of FAPE, students
with educatiolialdisabilities become entitled to more than just
a basic :floor of opportunity or some educational benefit. They
areentit1ed to receive an education enabling meaningful
participation in a delllOCftltic8Qciety, as weD as competition for
post-secondary education andeDiployment opportunities.46
The IDEA requires. i.ncoiporation . of broad educatiolial
adequacy 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, is
entitled .to .an IEP under the IDEA4(l An . IEP must be
indiVidu.aUy tailored to meet the unique needeofthe student"7
The IEP is the cornerstone of proViding FAPE." CoUrts look to
whether an IEP is appropriate when assesSing whether a
school district has provided FAPE."
Aligning IEPswith a state's oC()Qstitutionalrequire'inents
regarding. ail adequate education, .presents. challenging issues
for school officials and parents. Educatore and fa.milies must
boildolVnbroadadequacygoalstoa per8()nalized and detailed
plan fur a specifiestudent~ An IEP must contain Specific goals
and. objectives" to meet the student's uniqueneed.s, as well as
outline the special education and related.eervices the student
will~ive to meet the goals andobjectives;49
When the state coristitutiolUtladeqU8.CY requirements are
incol'Pon'lted 'into .theIEP .process; the goals, objectives, the
44,. ~ 103A2d.e 1StJ9,
46. See 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. of Educ. 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).

II

REEXAMINING ROWLEY

561]

573

special education, and related. services must be targeted

towards enabling the student to meet the educational adequacy
requirements. .The broad .educational adequacy requirements
aloneJDaY nOt be specific enough to enable schools and parents
to . readily meet thiBreqUit'eDlent. IIi this respect, state
educational standards can assiBt by providing specific,
measurable st8.ndardsestabJi,sbing what students should know
and-be able to dO at certain stages in their academic
prDjJtession. 15O Thesesta.ndards can be individuaJizedand
inOOrPoratedinto students' IEPs.

B. State Educational Standards

checklist of FAPE. referenced by the

inRowlq includes a requirement that the
~CatiOn .provided to students. with .disabilities meet state
Btandards;61 When the Court decided Rowley, this requirement
did. notba~ the same meaniDg it does today. Most state
standa.rds at the time oltbe decision did not involve
substantive reqllirements. for. the educational services provided
to .studen~.. Instead, the standards addreesed -the process by
whiebt4eserviees would be provided and were deSigned to be
"minimum" standards. 51
_. However, today the focus of educational standards has
ch8nle~tState and ~ educational standards addre88 the
eNential oo:re of knowledge of what students should learn.
Known in. the edueational worldu ..standards~based education
re~,"etate and f'ederaleducational standards now include
oontent .. Standartis specifying what students -should learn,
proficie~. .. ~ndards ... settiDgthe expectations for what
8~etlts must koow and be able to do at certain stages, and
. asee88~ meaeures determining whether the student has
TlIe.ID~s definitional

SUpl'eJlle

COurt

achiev~tbe .expectations in the. standards. 158

.50. MJuy' E. MoraD, SIaadards- :and.~ n.rNew Mea8rIre 0{ ~

iiI..&/IiOOl MIIOIICe ~ 25 J. fit Edue. Fin. 33 (1998); Coc:hnm, supra D. 31. at
462-64.
51. 28 U~_C.A. 11401(8)(b) <W- 2002).
52, Ff;lr ~Ie, in New Hamp8bil'e, the IItat8 has ~ -DliJiiaum studards"
since . nnach\v. ;
TheBe~. IIIIdnee ioputil liIte the nUJJlber of eredita
8i~ mqiltilaave to pad. . ., h .._raJ. coaree that lIChooJa m_ of etudIIIDte (ie,
~. ~~~ ut8, ete); the _of cIalI8rooma. etc. .They also lIddnea lJChool
operatjopal . .~ like
Of ~lUId claMrooma; teacher certification, etc.
See N.JI. Ilept.:.,F.clue,MiDimDDl St8Dda., ED 300, d ..,.
53. NatL .R8aeama Co1mciI. Brq1J"a rL sa, at S, U. 27-28, 88-40, 113-18; LBt:we No

J953-

* ..

574

B.Y.U. EDUCATION AND LAW JOURNAL

[2003

The standards based education reform eBort became

prominent at the national level with Goals 2000. This federal
law proposed national education goals requiring states
receiving funds under the program to develop strategies for
meeting national education standards. These strategies,
moreover, . had to include . developing and adopting state
education standards and asseument methods. 54
.Other federal .laws like Title I of. the Elementary and
Secondary Education Act, as. amended by the Improving
America's Schools Act of 1994, require states to develop or
adopt chalJenging content, proficiency standards, and
aesessment m:ech8njsms.'~5 Under Title I, students who receive
Title I services must make adequate yearly progress toward
meetillg the .state staildards. ll8 Schools.whose students do not
make adequate progress must develop .coJ7ec=ti.ve action plans.57
The passage of the No childLeft Behind Act of 2001
<NCLB)58 greatly expanded the .8:C0P8. of Title fs requirements
and reatlirmed the federal goVernment's position that all
students should meet bigh academic standards. 59 Schools with
.

Child Behilld Act, !O. U .s.c. fGa02 (Weet IOO~ GoaUI 3000: Educate Americ:o .Ad,
Pub. 1.. No. 1~22'7, f3, 188 Stat. 125, 129-30(2001).
. MSee Title llI,.Section. 306 of GoalsJtJOO: Educate American Act, 108 Stat. at
160-67 (2002) (ixIdiIied at; 20 UB.C. f 5888 (repealed 1999.
M. EIem.en.tary & Secondary .~I'& Ad 88 ameDded by the ImprovilaB
America's &hoolsAct of IIH; Pub.L. No. 108-382. lOS Stat. 8518 (1997).
56. [d.

57.Id.

58. No Child Left &Aind.Adof8001, Pub. 1.. No; 107110, 116 Stat;. 1425 (2002)
(~at .U.s.C. H 83016777 (2000.
59. The NoClNld Left ~.A 1Jf:iI1IIop ~ MIa, prepued by the
~ of tbeUQiDd States Department of Educ:atjon, begins Wit;h a IDeIl88P
from PNlident; Geo!p W.B..h that; states:
The NCLB Act; is desiped. to help an 8tUd8Dt8 IlUl8thirh, academic standards
by requiring . that; sta_create 8DnUill asseasmentl t;hat measure what
children bow and can do in readiDtr and mat;h in grades 8 thl'Ougb 8. These
_ta. based on chaDsJIIiDI ..... stanclaidllj will allow parlims, educaton,
. ~ .po)ieymliken, lUIll the Pb81'It1puhlic to t:rBct the
pertJniumce of every tichoOi in the riation. Data will be disanrepted 1br
stude.Dt8.by poverty .Ievele,l'IIC8, e~disa~ 8nillimited. EDglish
pro&:ieDCies to eDSure thIlt DO chiJd~ss of IUs or her baclqpound--is
~ be~.Tbe~ra1aovemmem . w ill provide ...._ _ to help states
dlieian and adminis1isr these te8ts. Stliitea . . must J'ePOrt on achool sa&ty on
asqboolby-8chool bitaia.
No Child lAIt. Be1&irId:. A 1JfIB_p . ~ 8003 9-10 (available at;
<http~;ed..IJOVJOIiiceaK>ESFJre1llre~;)ItDl1:~).
.ThlJ publication goes on to say
that, -ritle I, Part A. is inteDded to help eD8ure that
children have the opportunity
to obtain abiih-quality education and reach prolicieucy on ehaDeqiq state academic

an

II

REEXAMINING ROWLEY

561)

575

Title I. students must now make adequate yearly progress

b~ upon annual testing. ~ In fact, under NCLB, all children,
Yeg'ardleS8 .of Title 1 status,. in schools that do not make

adequate -yearly progress and are deemed in need of

improvement now have the right to attend. another public
school or receive supplemental services such as tutoring from
the SchoOl district.81

Virtuai!yevery state has DOW adQPted someform of content

and/or proficiency-stand8.rds. setting forth specific performance
etilndai'd$ andestabJishing the required outcomes for proViding
at~dents with an adequate or appropriate education under
state- law.62 . In addition, a majority of states have developed
specific .a88efJ8JDeDt measures that test students' levels of
achievem.eJlt in meeting state standards.68
There are two important .aspects of standards based reform
.related to FAPE'andtbe~upreme Court's decision in Bowley.
First, education standards establish high expectations for all
students incl-qding students With disa~. Such standards
8$5UDle an students can: a.dUeve elevated levels of learning
after setting. high expectations, clearly defining standards, and
designing. teacbiilg. to support student achievement." The
intended reBult C1t education standards is that aU students will
learn lIl0te~66 Some sta~. have even developed specific
atandutis . for students withdisabilitie8, but most simply
created-one set of standards for all -students.- The high
expeeta.tiona instate educatiOnstandards are at oddS with the
core holding in Rowley, which Stated. that scllooldistricts need
only. meet the minimaliBtic "some educational .benefit"
standard.67
The second important aspect of educationalstandards shifts
the foCus from process to outcome. Content and proficiency
.

.".

siandU'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. Re~Couneil. 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>iIIaI1ililia
t!ilIdSJmid,arda-Bo8ed Bdueufiors &fOrm (available at <ht;tp:JIwww.fcen.ortJipeed
. eselst~ib.htmt.
61$. Vahs et al,supran. 64.
M. Natl. Reaearch Council, sUj1m n. 38, at lil788; Voba, supra n. tU.

67.ROwle.Y, 468U.8. at 189, 200-01.

"

576

B.Y.U. EDUCATION AND LAW JOURNAL

[2003

standards center on whatstudents actually learn as opposed to

the process by which the students learn the infurmation. 68
Currently, special education focuses in large part on the
process of providing services to students and not neceBBarily
the outcomes that result from the services.. Education
standards redirect the inquiry to the eft'ectiveness of the
education actually provided to the student. The focus on
student. achievement contradicts Rowley's finding that the
purposeof the IDEA is to provide access to education and not
to add.reBB the substance or quality of services students ~ive
once they. have acoeBB.89
The state-estabJished Curriculum Framewotks in New
Hampshire illustrate. one example of content and proficiency
standards.70 The FraIneworks set content and proficiency
standards in various academic areas. In the area of Language
Arts, the .Framework sets forth the following general reading
standard:
.Students will deJllonstrate the in~rest and ability to
read age-appropriate .materials fluently,
with
understanding and appreciation..
The .Language Arts framework then sets forth the fullowing
broad goals:
Students will readtluently, with understanding
and appreciation.
Students. will write effectively. for a variety of
purposes and audiences.
Students
will
articulately.

speak

purposefully

and

Students will listen and view attentively and

critically.
Students will understand, appreciate, interpret,
and critically analyze claBBicaland contemporary
American and British literature as well as
literary works translated into English.
88. NatI. Reeearch CoUDDil, tmpra IL 83, at 36-39, 11...18; YOM, tmpra n. 64.
69. Rowley, 468 U.s. at 192.
70. The frameworb were e~hed 88 part of a New Hampehire 8tatute, N.H.
Rev. Stat. Ann. fl98-C (1999). The frameworb are available on the New Hampahire
of
Education
Website
at
<bttp:/Iwww.ed.lltate.nh.U8I
Department
CurriculumFrameworkaleurricuLbtm>.

REEXAMINING ROWLEY

561]

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, this
peteepmnchanges when applied to a student with a disability.
These.. goals become sigeiDcant and require scl1oo1 districts to
provide services .10 enable the&tudent to meet these goals; this
will likely be a significant change for some school districts and
'8tud~nts. For example, requiring a student with dyslexia to
read age appropriate materials fluently is a goal that some
scltoo1districts might ordinarily . not set because of the
dJ.ffieultiea a student with dyslexia often has reading.71
lliBtead, a achool district might set a goal targeting simple
itDpmvements to the student's readiPg ability, even if that
i~plOVernent left the student several years .behind in hislher
reacting level
Incorporating state educational content and proficiency
standards into the statutory definition ofFAPE means high
e~tions must now be included. in disabled students' IEPs.
Edueational standards define performancecrlteria forstuderits
that .scllool dietriet8 and parents lIJ.ust use when developing
goals:. altd objeetiVes in &. student's IEP. School districts,
paren,ts, and. courts may.. ~ use these standards when
asseeaingwhet:lter.a sc1)oo1 district bas successfully provided a
student a F APE.72
7 L stanley S. Herr, Special Edwotioll Law a,.d CIJildren. wirh Reading cmd
Other DisObiliries, 28J.L. & Educ. 3S7, 343 (1999).
72. Tbeleis 4- p<*ntial risk of using hiP 8taDdards to the detriment of lOme
studen.with disalriJiAee. For e_pJe, reqairiag a atl1deut with a diMbilliy to palllJ a
high
in order to receive a hiP JICIIool ctipJoilaa can be a JIIlQor ob8t8cle to the
~iltheet1identcaaaot n!8d d,. to their dilIability. For a diiCuasion of high
stabe. ~imd
With disabili1:ietJ, see Paul T. O'Neill, Special Educaliorl
rwtliJ8A $to1rea Tt!llWclrl' lliiI'" ~. arudUatiot&: Aa AlIalysi8 0{ CunYmt Law aIId
Polir:y, lOJ.L,; " Ed.uc. 1M, 186(2001); R&'an R. W-, StuditDt Author, The Falloc:I
Be!Wsdll1CTeaili!d~: Bow DieolJled SCuden.ts' ~ Bi,gh&8 Hove
&iim ~ bJ (J RuA ItJI1fI/1Ie1M,"~Staktt6Emma, 2002 B.Y.U. Educ. If
LAt Ml (2002); 1'heeePIObJema.ml1lt be addnlseed 80 that.menu with di.biJme8
are not pllDiabed Or a-eed baMld. upOn ~ir disability. Raising the expectatiou JDr
siudentll W;i:thdiaabili&iee must iDcIade raisiDg the expectatioI18 fin' how we teach and
how we _atudentS with dillabilitiee.

.tabs.

Biu"

578

B.Y.U. EDUCATION AND LAW JOURNAL

C.

[2003

The 1991Amendments to tMIDEA.

Congress amended the IDEA in 1997. The amendments

show . Congress' conscious decision to incorporate state
educational standards into special educational programming
for students. The statute now explicitJymsndates that states
establish performance goals. for clrildren with disabilities that
are consistent with other .goals and standards set for all
children. 78 .The 'IDEA now ,requires. states. to establish
perrol'Dl8nC2 indicators that assess progress toward achieving
those goals. At a minimum, the goals must address the
performance of children with disabilities on assessments, drop
out rates, andgracluation rates. 74
The amendments to the IDEA mark a significant change of
direction from the Court's .decision in Rowley.
The
amendments establish high expeeta~ns. for children with
disabilities to achieve real educatj()nal results.
The
amendIQents,cbange the focus of IDEA frQm one that merely
provides students.. with disabilities aooeseto .an education to
onerequiringUnproved results and achievement. The changes
&remade explicit in the House Committee Report whieh states:
This CoJlllPittee believes that the ~ issu,enow is to
place greater emphasis on improving student
performance and ensuring that children with
~bilities receive
a quality pui)lic education.
Educatio~ adri.evement f9r cbildren with ~bilities,
while improViDg, is sti)lless,than sati.ctory.... This
review and authorization althe IDEA is needed to move
to the nen step. of .provicljng. special education and
related services to cbildren with 'diaabUities: .to improve
alid increase their educational achievement.7&
Similarly, the findings section of the 19997 IDEA
amendments states that:
Over 20 years of research and experience has
demOD8trated that the education of children with
disabilities can be. made more effective by having high
expectations fOr sud1 cbildr$ and ensuring their access
in the generalctll'l'iCmumto the maximum extent
possible ...[and] 8UppOIting. bigh-quaJity, intensive
73.20 U.S.C. f 1412(&)(16) (W~t 2002).
74. Id.
75. H.R. Rpt. 1~96, at 88-84 (May 1B, 1987).

II

561]

REEXAMINING ROWLEY

579

pl'Ofeesional .development for all personnel who work

with such children in order to ensure that they have the
skills and knowJ.e4ge necessary to enable them to meet
developJ:nental goals. and, to the maximum extent
posSible, those challenging expectations that have been
established for all children." 76

Whenever possible a general curriculwnmust now include

students with disabilities, and IEPs must contain goals and
objectives that enable disabled students' involvement and
ptQgl'ess in the general curriculum that is avaiIableto all
students. 77 This is one method of incorporating the high
e~tioDSof educatiouaIstandards into special education
ptogt8ttlming tOr studeni;$ with disabilities. 'l8 The IEP details
the . sPecual educationservioos schools must provide disabled
students. The definition of special education in the IDEA now
expressly .states thatspeciai education means specially
~ instruction to ensure access to the general curriculum
S(J that thestucieBt can meet "the educational standards within
the ~ n .of the public agency that apply to all

children."79

States and school districts must now include disabled

students in their assessments or provide them with an
altel'Date examination.so
These asse88lDents commonly
measure the extent to which the student.meets the content or
ptoficlency .standards. States and districts JDust consider the
stUdent'spel'formanceon thesea$1essments when developing
78. 20 U.S.C.A. 14OO(e)(~)(A), (E)(i) (West 2002).
71.84 C.F.a.I800841(Z)(.i) (2002).
78. H.R.R9.t.l~915, ai;tI9-100. 20 U.s.CA 11461(a)(5), (a)(8)(A), (a)(8)(B) (West
2002).('1i'~aiId ~fo Part A <National.Acti:ritiea to Impruve EducatioD of
~ withDNbiJitieB) of PlEA.). See o.lIo
.s.CA t14lO(c)(6)(A).
79. S4C;F.ll f ~")(3)(ij)(JOO2).
80... Appro'-tely baJlof all Il&udeDtB with diaabilities are currently excluded
boia .welliId di8tril:t-wide .iie_IReD_The. new 19fT1 amendmeDt8 &0 the IDEA
~llVrequin:
(1) fl'Ibe.develOpment of &t:a1l!. perlimniuice lJ08la for ehiJdJ:eD with diabiJjtjee.
~tmust~certaiIl by~oftbe1lQllll8IIJ ofeducatioMl eftbrtB
.~r tbUeCbiJdren-4DcludiDg, ata 1IliDJmum, pBrimIuiDce OD aelsllme"',
dropout rates,. aM pilduatioD rates, IUId regWar teporta to tile public on
p~mward. ~ . the goals; (2) that cltiJcbeD with disabilitiea be
mc)udedin .ieDeraI IItate 8Dd~ . I I B I _ I.... with apptopria&e
acmmmodatioDe.ifnecfIBaryf;] Bod (3) that flChocJIa report to pmeDts OD tIbe
pzQgre88 of the diilabJed child as ofteD 8uuch reportS are provided to panm.ts

zo u

of~bWcIUIdnm.
See 62 Felt Reg. MO. 530.29 (Oct. 22, 1997).

580

B.Y.U. EDUCATION AND LAW JOURNAL

[2003

the student's IEP. States and districts may also ueethese

results to measure student progress towards meeting IEP goals
and objectives.81 Results on some of these tests indicate that
programming for students with disabilities is not yet aligned to
state edueational standards.
New Hampshire's test results, show vast differences
between students 'with .disabilities and students without
disabilities. New- Hampshire divides its test scores into four
categories: novioo, basic. proficient, .lUld advanced. During the
test administered. in 2000, only thirty-two percent of students
with disabilities scored basic and above in third grade language
arts, compared to eighty-three percent for all other students~
Moreover, only five percent ofstudents with disabilities scored
proficient and abov-ein third grade Iangu,agearts compared to
forty~three percent of all other students. Overall, only twenty
five .percent.of students with disabilities scored basic and above
compared to eeventypercent of all. other students. Only four
percent of students with disabilities scored proficient and above
compared to thirty.;one percent of all other students. 82
The 1997 amendments to the IDEA incorporate the high
expectations of state educational standards . into the
prognmming fur disabled students. The amendments also
show that FAPE is now' more than access. to abasictloor of
opportunity. FAPEis now aligned with the high expectations
in state education standards. .As a result, theeehigb
expe<:tationsmustbeincorporated into the IEPs' of students
with disabilities.

IV. How oro INCORPORATE HIGH STANDARDS INro IEPs

A student's unique needs and abilities determine how
educators incorporate standards into an IEP~ As a general
matter, a student's IEP Team must alJ8888 the student's needs
and abilities and then determine the best method of
incorporating
specific
standards
in
the
student's
programming.88
With respect to academics, a student's IEP need only
81. 84 C.F.R.1800.846(a)(1) (2002).
82. Sell New Hampshire Eduoational ImproveJM1lt a1&d Aae8Bmenc Program
.EducaUon., ABseU~ &port. (2001) (available at <l!tqI:/lwWW.ed.8tate.nb.QIl/
Aalle88mentlreeulta2000.htm.
83. 84 C.F.R. II 800.340 800.360 (2002).

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REEXAMINING ROWLEY

581

address thoseareas where the student's disability affects their

ability. to progress in general ClUriculwn. 84 Therefore, the IEP
does not ~esarily need to address every edueation standard
in every academic area.85 Rather, an IEP Team should assess
how the student's disability impacts hisIher ability to
participate in and progress. in the general curriculum, and
ident1fythe content andproficieney standards that apply to the
itnpacted Metis. In some cases, the content and proficiency
standards may be used directly as a goal or an objective in an
IEP. In other cases, the IEP team may need to modify content
Of. proficiency standards- by individualizing the standard and
pn;>Viding more detail on what the student will accomplish in a
period oftime. 86
The Team may also determine that the student cannot
presently meet a content orpNficiency standard and choose to
devel'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.
must, lioweller, addrel8 mote than just academic Deed8. . LeM, 998
F.2dIlt: 1089.
.
86... ~ Ap~ Ato 84 C.F.R.Putaoo, Queatioaa 2, 4. The Houe Comaittee
report on tbareautlaorisation ol~IDEA states:
. ~ DeW8@basiaoapartil;ipatirmiD the pneral education curricalum is not
in.DiIIed by tile ComJDiUlee to. NiPlkin DUQor ~ in the . . 01 tile
IEP af.OO"- 01 paaiea 01 cIetaiJed .... and benchmarb or objectives in
every cuftiicuIu eoDtebt iirnMiiPli or skill. TM DeW fbcaa ill intended to
prod~""Dtothe~os8Dd ad,juataelda necel..ry tbr
cliMbled. eI1iIdreD to ~ tbepaeral flClucatiOn cUrricuJ:aia and the special
lI8rn:.e.wbich may.be. JIIlClflIIIIllr fino Ml'OIUiate J)III'ticipldiou inpartlcular
~ of the c:urricalum; Ii.. to the Ji$lre oIb diBabiJity. Specific day to d8,y
adj1l8tmelltJJ in iD8tnactioaal medlodB and approacbee that are DWIe by
either a ftPlar or epecial eduea~Dteaeber to ..... a diBabJed child to
~ve bilOJ:bel' ammar ..... wo1dd IIOi DOnDaDy require action by the
dWd's IEPTeam. BOwvver. ifchaDaea are coatemplatecl in the clWd'a
,....~ amwal . . . . __DCm.ub. or ahorttena objectiyea, or in qy af
~. eerviC88or. JIl'QIi'aIa ~ or other COJIIPOD8aU ~ in the
chiJdi8 lEP. the LEA . . . e _ t h a t the ~11BP Team is teeOD98aed in
it timely ~.r to addre. those chluJao8a.
H;R.ilpt. 1~, at 100.
.86.'. NatL llBeearcll Council. supro n. 33, at 140-11U.
81.. The juue of w!leUlel'.dae 8tudent is c:apdle. of Ittajniag ci!rbdn 8taDdarde at
oertsin srade levels iI ODe tbat:w:ill bave to be eateftdJ,y iEBlsedfbl' each 8tDdeDt. In
8O~", the etudent'I~Dt 1IUlY" 80 simtre tlIat the p!OficieDcy standard ill
um:ea:J:ilWC. ~r, dJejee ~D8 wil1libly be rare. Re8eIm:h hIlII delllOlllltrated
that ~nwith~ireeilpable oIattaiDiq hiP JeamiiItr ~ wben
.. theyan,;P1'Wid8d Wiih ~.~tbatenahJe tbem to do BO. ThiI is true e98ft
'td~eu..tJi~uit.lltbai a ~ l.Jf kwracaaetDic achievelDeJlt. John Bruer, Sc1toolB for
~: 'l'l-7S(M:.... lDit.ofTech. Preea 1992); SaDy E.S~ D:18laia, 273 Sci.
Am. 98. 10$ (NOv. 1998).
Sdlool~

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B.Y.U. EDUCATION AND LAW JOURNAL

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When this is done, the IEP Team's standard should be linked

with the state content or proficiency standard. The standard
developed for the student should be challenging yet achievable,
and. designed to assist the student with ultimately meeting
overall state .standards. 88
Similarly, the IEPTeam must focus on developing the
student's access skills needed to satisfy the content and
proficiency standards.~ Direct services and remediation (such
as one-on-one tutoring in Orton-Gillingham or Lindamood Bell,
etc.) are often neceBBary to help students with certain
disabilities develop the access .skUls necessary to fulfill content
and proD.e2ency standards.. The Team must develop additional
goals and objectives for these access skills. The IEP Team
must also determine if any other accommodations or
modifications are required to ellllble the student to meet the
relevant content and proficiency standards and to enable the
student's participation in state or distnct.888essments.90

88. The ComJDi:tt;ee O1lGoaJs 2000 and the Inclusion 01 Students with Disabilities
made a number of recommeDdations regarding BtudentB with disabilities and
standarda iDcludiDr the iillowing:
1. States and
that decide to implement Btandardll-based retbrma
should deaip their common content ~8, per.lb.mumce standards, and
&88888ments to maximize participation oIstudentB with disabilities.
2. . The pftlSumption. should be thatesch student with a disability will
participate. in the state or Jocail lltaDdard&; however, participation fur any
given 8tQdent may require alterations to the common standards and
8SlMlssments. Decisions to make such alterations must have compelling
educational jUlJtiftcation and must be made on an individual buie.
S, When content and pertbrmance standards or alll88SlD8nts are altered tor
a student with a disability:

the altemate standards should be chalJeDIiDI yetpotentiaJ)y
achievable;

they should re11ect the full rllDP 01 kDowJedge and akillB that
the 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 used
only to oft'set the imPact of disabilities unrelated to the kDowJedp and skiils
beq measared. T.b8yal8o. sbould be justified 9D a qee..by-cue basis, but
individual decisions abould be guidea bya unitorm set of ~
Natl. Research CoUDCil,.rtpro n. 88, at 197-209.
89. Aoce88 skill,1Ul8 _ply akilJathat are aliped with the content and
proficiency standar:da ~ .. that enable the student to meet these standarda. See
Patricia Burwell .t: Sar~ Ksooedy, ~GtJts 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.

JocaIii.,.

REEXAMINING ROWLEY

561)

583

Consider, for instance. athirdgrade student with dyslexia

who is having difficulty reading. The IEP Team should assess
how the dy81exia affects .the student's. involvement and
progress iii ~eeting the content and proficiency standards that
are part of the general curriculum. In New Hampshire, the
IEPTeam would need to review the state's Curriculum
F~meworks in Language 1\rtS.. that . set forth grade specifi.c
ben.cbD1arks that students.should meet. The Frameworks state
that by the end of the third grade. students should be able to:
. Determine the pronunciation and meaning of
worda by using. phonics (matching letters and
cmnbinations of letters with sounds), semantics
.(language sense and. meaning), syntactics
.(sentence structure), graphics, pictures, and
contextaal well as knowledge of roots, prefixes,
and suffixes.
.Understand and use the format and conventions
of written .language to help them read texts (for
example, left to right, top to bottom. typeface).
Identify a specific purpose for their reading such
as learning, locating information, or enjoyment.
.. :Forman initial understanding. of stories and
other materials they. 'read by identifying major
elements presented in the text including
chamcten,. setting, oonflict and. resolution. plot,
theme, main idea, and supporting details..
Reread to confirmtheir initial understanding of
a text and to extknd their initial impressions,
developing a mOl'ecomplete un~rstanding and
interpretation of the text.
.

Identify and understand the UfJe of. simple

l.an.g-eulge
including
similes,
figurative
metaphors, and idioms.

Reoognize that .their knowledge and experiences

affect their undel'8tanding of materials they
read.

. Make and confirm simple predictions to increase

their level of understanding.

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B.Y.U. EDUCATION AND LAW JOURNAL

[2003

. Seek help to clarify and understand information

gathered through reading.
Employ techniques, such as previewing a text
and skimming, to aid in the selection of books
and articles to read.
Demonstrate the ability and interest to read
independently
for . le8.rning, .information,
communication, and pleasure. 9~
The Te~ should oonduct the necessary evaluations to
determine which of these standards: are impacted by the
student's dysle~and if the student can meet any of these
standards. The Team sholildthen consider how to develop a
programtbat enables the student to meet the' unmet
standards. The Teamtnay iDclude some of the unmet
standards themselves as goals and objectives in the student's
IEP, or it may . need to modify and individualize those
standards depending on the student's unique needs. The team
may also need to develop linlringstandards aliped with the
unmet standards in the curriculUlll frameworks. Goals and
objectives'thilt develop aooessskills will also need to be part of
the student's IEP.. The Team should then consider standards
for other .academic areas such as math, science, and social
studies in determining if the student's dyslexia will inhibit his
or her ability to meet these sUm~. If so, the Team should
follow the same process fur developing goals and objectives to
address the issues.

V.

CONCLUSION

The 1997 reauthorization ofthe IDEA and the eDlergence of

state educational standards and constitutional requirements
should lead to fundamental changes in how IEPs are written,
implemented, and evaluated. . This,in turn, should also
influence how oourts assess FAPE. .These changes require a
reexamination of Rowley and its "some educational benefit"
standard.
Reexamining Rowley is no small undertaking. It has
provided the basic framework for special education services for
91. LaneuaIle Ares Framework
CurriculumFrameworblcurricuLhtm.

(available

at

<http://www.ed.8tate.nh.uaI