He has also provided a useful treatise. Recently though, he sent me a copy of a recent law review article, "Common-Law Interpretation of Appropriate Education: The Road Not Taken in Rowley," 41 Journal of Law & Education 95 (January 2012). Too frequently, those of us who practice special education law take the few established principles in our field for granted. (As I have bemoaned, special education law is closer to metaphysics that contract law.) For example, it is important to occasionally examine the Rowley standard and how it applies to our cases.
In the article, Professor Weber notes that without waiting for a clear conflict in the circuit courts to develop, the Supremes defined FAPE in Rowley as the basic floor of opportunity and in so doing foreclosed the opportunity to develop a common law of appropriate education. He points out that lower courts and commentators before Rowley and opted for a proportional maximization approach, meaning that appropriate would require services that would develop a child's ability to the same extent that non-disabled children are developed. He also predicts that a number of categories of cases, while not rejecting Rowley, do not fit squarely within the "some benefit" standard Rowley establishes.
Obviously, I have summarized a long article here for our readers. As with all articles by professor Weber, this one is a must read if you practice special education law. Thanks for sharing it.