In this post, Dr. Posny talks about the Rowley standard for FAPE and the issue of a parent's right to meaningful participation in the process.
Another issue that comes up a lot, and this is a real sticking point with parents, is the Rowley standard. In terms of educational benefit, most circuit courts have required that to be some meaningful educational benefit. The parents cite the legislative history of the original EHA and say that it really should be a potential maximizing law. Do you think that something - - in fact, there was a Washington State federal trial court decision in Mercer Island that said that the Raleigh standard sets the bar too low and they were using the 1997 amendments to based that, not even the no child left behind stuff. Do you think we need to rethink the standard for that or should we stay away from it or what?
AP: Okay, well now, let me just give you my personal opinion.
AP: My answer would be no. I don't think we need to and it's because of what we're doing - - what did in terms of no child left behind and if I sit and think around an IEP team and trying to determine what the maximum benefit would be, well, we could be all over the place. I mean, what could we have possibly established as a criterion and yet, if we take a look at what are the outcomes we want, you know, in terms of what no child left behind has done, you know, that to me is the better place to put our time, effort and energy. And, you know, because again we could be spending a lot of our time litigating something that we probably could not even figure out. What would be a maximum benefit? Is it employment? So, therefore, if a child is not gainfully employed and has a living income - - I mean, how far could we possibly go? I just think it's very difficult to define. So, I really think coming up with the outcomes in terms of how well they do academically, I think that just holds a whole lot more.
JG: One special ed administrator said to me once that you know, we don't really guarantee any kid a maximized potential, it's sort of up to the kid too.
AP: Well, there are a lot of other mitigating factors. You know that as well. You know, the parents, the background, you know, the child, whether - - have they had effective teachers?
AP: And, you know, and I'm talking about in special ed, have they had effective general ed teachers? Because if they haven't taught it, then you know, boy there are a lot of - -
JG: It makes it hard.
AP: Oh - - I don't know where you would take that one, but I understand, believe me. I very clearly understand what parents are asking for.
JG: Well, and I have a daughter, and I've always wanted the best for her and most parents want the absolute best for their kids, but I'm not sure that the school system is ever going to be able to do that I guess is the problem.
AP: No, and there was a part of me saying, I'm responsible for my son.
AP: You know, because my son is 26 and he's an engineer and at Georgia Tech right now and they're paying for his education. (laughing)
AP: But a major part of that responsibility was me. What am I doing at home to make sure that he's doing everything that he needs to. I would never have force it on the teachers to say, well, you're not teaching him enough.
JG: Right, and again, that's one important part of IDEA is that it guarantees the parents the right to participate in the process and I think most hearing officers and most courts come down really hard on school districts the hardest when they think that they're not allowing parents that opportunity.
AP: Absolutely. They need to be a major voice at the table.
AP: Oh, you bet.
JG: And I think even if the courts feel that the parents are being - - the district is pretending to give the parents some input but not really considering anything that they say that they get very upset, not that they have to necessarily agree with them all of the time, but - -
AP: That's correct, but they need to be - - you know, this is a relationship that we establish. I often laugh about it because I often talk about a special ed, I think, is second to a superintendent in terms of probably the headaches, but the difference is this and I said, you know, for us in special ed, we could literally have a relationship with parents for 21 years. And is said, there isn't anyone else, not any of the principals, no one else has that long of a period of time and I said, so, we better start this out the right way and make sure that we're working well together because I said, 21 years is a long time.
JG: Well, and I think a lot of the cases that I see when they make it - - usually by the time they make it to me as a mediator or as a hearing officer, there's been some unpleasant things happening along the road.
AP: I agree.
JG: But one of the things - - one of the main problems I see school districts having is not paying attention to the communication and relationship issue kind of things.
AP: Oh, absolutely.
JG: And I thing that that plays well with what you just said, I think, because that's an important part of it.
AP: You bet.