Thursday, March 29, 2012

Special Education Law and Academia: New Law Review Article

Academia Oamenilor de Stiinta din Romania / Th...Academia Oamenilor de Stiinta din Romania / The Academy of Romanian Scientists (Photo credit: cod_gabriel)

One of the truly cool things about doing this blog is that it has received a good reaction from the academic community. We appreciate their support.  Some of our favorite professors have their own blogs and are listed on the lefthand side of this blog. I was going to mention all of our friends in academia, but I was afraid that I might forget somebody.  So I'll just focus on a few. You know who you are and thank you.

And the academic community has been very kind to me and this blog.  For example, while I was doing a hearing officer training for the Part B and Part C hearing officers in South Carolina last year, I had the privilege of meeting Professor Mitchell Yell. He honored me by mentioning the blog, and he gave me a copy of his textbook, "The Law and Special Education."  It is a valuable resource.

Another good friend of this blog is Professor Mark Weber of DePaul University School of Law. Mark is one of the thinkers in the field of special education law, an to my knowledge he is still the only person to cite this blog in a law review article.

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.
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  1. Could you post a pdf of the article for us? Most of us do not have access to the journal. Thanks.

  2. KK,

    Sorry I don't have permission from Professor Weber or the journal to reprint the article. You can probably find it at a bigger law library.

    Good Luck,


  3. Thanks to Jim for the kind words about my work. Folks who are interested in reading the article may download it from the Social Science Research Network website:

    SSRN author page:

    Another article in the symposium that is definitely worth a look is that of Professor Terry Seligmann. It can also be found on SSRN:

    All best, Mark Weber

  4. Mark,

    Thanks for the link. Several readers have inquired about this.

    Also thanks for your great support of the blog.


  5. PJ,

    Thank you for your kind words.

    I appreciate our readers.


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