Time for a Change to the Rowley Standard
A little over thirty years ago, on June 8, 1982, the United States Supreme Court set forth the seminal standard for a free appropriate public education in Board of Education v. Rowley for students with disabilities. In this case, the Supreme Court ruled that a school district provided a free appropriate public education (“FAPE”) to a child by providing an Individualized Education Program (“IEP”) “reasonably calculated” to produce educational benefit. In the Second Circuit, which covers New York, Connecticut and Vermont, the courts have refined Rowley to require “meaningful educational benefit,” still a vague term, and look to evidence of passing grades and regular advancement from grade to grade as evidence of FAPE. While courts will examine objective data, such as progress in standardized test scores, Rowley does not deem this essential.
Few courts have questioned Rowley’s basic premise or updated the standard to comply with the mandates of the Individuals with Disabilities Education Improvement Act (“IDEIA”) or the No Child Left Behind Act, both of which require scientifically-based research strategies in instruction and explicit evidence of progress in the general education curriculum for students with disabilities. Rowley made sense in 1982, based on the statute it was interpreting, the Educational for All Handicapped Children Act of 1975, in an era when children with disabilities were systematically denied access to education and generally excluded from standardized assessments. In the decision, Justice Rehnquest did not examine specific student achievement or test scores. Clearly, in the thirty years since the Rowley decision, the educational landscape and the expectations on the methodology that school districts utilize has drastically changed. NCLB requires data driven decisions and requires school districts to demonstrate progress for all subgroups of students, including students with disabilities, measured by a precise formula for “adequate yearly progress.” Moreover, school districts must keep this data and chart individual student progress.
Courts have applied the Rowley standard universally to all cases, although the Rowley case involved the specific issue of whether a student with deafness, with above-average intelligence, who was doing well in a classroom required the additional service of a sign language interpreter. The Court found that because the student was progressing, the school was not required to maximize her potential by having a sign language interpreter. In many cases, the vague standard clearly harms students. Most IDEIA cases indeed do not deal with parent claims that a school district must maximize potential, but rather with programs that have failed students, but which courts deem appropriate because the school district set forth an IEP that was “good enough.” Parents know that passing grades are necessarily subjective, but grade inflation can be very difficult to prove.
In addition, Rowley discouraged courts from carefully reviewing and questioning educational methodology and substituting their judgment. For example, in Grim v. Rhinebeck Central School District, in 2003, the United States District Court for the Southern District of New York ruled that the challenged IEPs were substantively inadequate because, among other reasons, they did not provide sufficient services to address the student’s decline in test scores from the preceding year. The Second Circuit, reversed this decision, based on Rowley, because the Impartial Hearing Officers and State Review Officer had held that the IEPs were appropriate. The Second Circuit held that adopting expert opinion on dyslexia was inappropriate for a court reviewing administrative determinations under the IDEA.
Thus, based on the applicable legal standard set by the courts for FAPE, parents must be proactive at the CSE level to understand the IDEIA and ensure their child is making meaningful progress. In conformance with the IDEIA, parents should expect and school districts should deliver:
- Scientifically-based instructional and positive behavioral support strategies;
- Training and professional development for staff targeted for a student’s disability;
- Supporting the use of assistive technology devices and services to maximize accessibility for students;
- Precise measurement and objective evidence of student progress and outcomes;
- Goals and objectives that are individualized, measurable and based on knowledge of a student’s abilities and scientifically-based, rather than vague and cookie- cutter;
- An examination of whether passing grades reflect students’ ability, as measured by careful attention to standardized test scores and student work product;
- Transition services designed to help students lead productive and independent adult lives, to the maximum extent possible.
When parents expect this level of progress and document, in a careful record, if it is not occurring under the IDEIA, the Rowley standard will eventually evolve. Due to the substantial deference standard used by the Second Circuit, Impartial Hearing Officers and the State Review Officer, rather than the federal courts, will be on the forefront of this evolution.
Indeed, the Rowley “reasonably calculated” standard does not serve school districts well either, particularly with the new annual professional performance review (“APPR”) model that New York State has required for teachers and principals, including special education teachers. The adoption of a lackadaisical “C” standard actually encourages a lack of vigilance and attention to the details, training and monitoring needed to identify and serve students with disabilities, under the IDEIA. Given the extensive resources that school boards devote to providing special education services and to the instructional staff employed, high expectations and precise measurement of progress, will better serve students and ensure that school districts are effectively using their vast resources to identify student needs and to educate students.
