Thursday, April 19, 2012

The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part I

The Supreme Court of the United States. Washin...The Supreme Court of the United States. Washington, D.C. Français : La Cour suprême des États-Unis. Washington D.C., États-Unis. ‪Norsk (bokmål)‬: Høyesterett i USA. Washington, D.C. (Photo credit: Wikipedia)

This is the first of a two part series.  As I have said many times, special education law is a lot closer to metaphysics than it is to contract law.  Older lawyers (obviously I mean those older than me) are confounded by it; teachers and parents find it difficult to understand. Assistant principals in charge of student discipline curse it.  It can indeed be slippery.

The one hornbook rule that we have, though,  is the standard for a free and appropriate public education. The basic requirement of the IDEA is that states and school districts must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, § 612(a)(1).

     The IDEA defines “FAPE” as: special education and related services that:
(A)  have been provided at public expense, under public supervision and direction, and  without charge;
(B)  meet the standards of the State educational agency;
(C)  include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D)  are provided in conformity with the individualized education program required (…hereunder.).
IDEA, § 602(9).  See also 34 C.F.R. §§ 300.101 to 300.113.

     The IDEA defines “special education” as: Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A)    instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B)    instruction in physical education.
IDEA, § 602(29).

          The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of  Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982).  The facts of the case were that the student had a hearing impairment.  The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes.  Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

          Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student.  The U. S. Court of Appeals for the Second Circuit affirmed.  See, Rowley, 102 S.Ct. at 3040. The Supreme Court reversed.  Rowley, supra, 102 S.Ct at 3052.  After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

          The Supreme Court noted that the individualized Educational Program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049.  The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act.  Rowley, supra, 102 S.Ct at 3050-3051.  The Court also cautioned the lower courts  that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

          The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability.  Rowley, supra, 102 S.Ct at 3048.  Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

          The Supreme Court instructed lower courts that the inquiry in cases alleging denial of FAPE should be twofold:  First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.”  Rowley, supra, 102 S.Ct. at 3051.

The Rowley decision pertained to the adequacy of an IEP, but the ruling is regarded generally as the gold standard for whether FAPE has been provided in any situation.  In the next installment in this mini series, we will look at whether the bullying cases may be in the process of altering the Rowley FAPE standard.  Stay tuned.
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  1. I am wondering what the law for transition services is under IDEA federal law as many school districts in Oregon appear to be denying appropriate transition services to student's with severe needs. They are stating that they don't need as many services and that they do not have to provide any community experiences or many related services such as OT, PT. My understanding is that SPED students are entitled to an education until age 21.
    Please help me understand better, the law.
    Thank you.

    1. Sorry Anon,

      As an impartial, mediator, hearing officer and state consultant, I do not represent or give advice to parents or school officials. Please see the blog disclaimer for further details. You should consult a lawyer licensed in your state, preferably one familiar with special ed law.

      Good luck

    2. This comment has been removed by the author.

    3. Parents in Oregon who need information about special education may contact the parent training and information service formerly called OrPTI and now part of an organization called R.I.S.E.. Here is their website:
      This organization cannot advocate but can offer information, education, and support.

      In addition, the Oregon Department of Education maintains a list of attorneys who represent families in special education cases.

  2. Thanks MA,

    We always appreciate information about resources that special ed stakeholders can use.


  3. It’s good to see the laws are changing, and more protection is being given to those students that need it. Well, assuming that recent cases will change laws, as I hope they do.

    I’d really like to see laws regarding special education made more approachable to the public, so that families will know exactly on what legal ground they stand, without needing a lawyer to interpret every change.

  4. This comment has been removed by a blog administrator.

  5. If you go to due process for outplacement and the hearing officer declines the parent request. Would the parents have to file due process again to have then request changes be made in the current district school or could it all be handled at the due process hearing for the outplacement

  6. If you file for mediation in June do hearing officers continue with mediation through the summer.

  7. Anon,

    Please see the disclaimer.

    As an impartial, mediator & ho, I never represent or give legal advice to parents or school officials.

    Please consult a lawyer licensed in your state, preferably one experienced in special education law.


  8. It's a right way to Keep up the great work. If you may required in future the outplacement services ,We give the outplacement services @ Outplacement services Perth