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Friday, April 5, 2013
When Rowley Doesn't Apply; New Law Review Article
If you are a fan of special education law, you should be familiar with Mark Weber, one of the leading academic authorities in this area of law. As a good impartial, I must admit to a bias, Mark is also the only person to have cited this blog in a law review article; therefore, everything he says is necessarily true and correct. (NOTE: in fairness, this only applies to law review articles. Professor Mitchell Yell has cited the blog in his excellent book, and Barbara Bateman and Mary Anne Linden have cited the blog in a couple places in their bible on IEPs. This blog has serious street cred!)
Anyway, I digress. Professor Weber has a new law review article. The title is "All Areas of Suspected Disability." He was nice enough to share it with me. I also discussed it with him, and heard him lecture about it, during a recent training in Missouri. In this article he notes the tendency of courts and hearing officers to strictly enforce the IDEA provisions requiring that students be evaluated in all areas of suspected disability and that their IEPs address their individual needs. He suggests three possible explanations for this development: First courts and hearing officers may be reacting to the limited definition of FAPE penned by the Supreme Court in the 1982 Rowley decision. Second, he notes that judicial and administrative decisions are placing an increasing emphasis on inclusion; or more technically the least restrictive environment requirement of IDEA. Finally, he looks at whether the bad economy of recent years may be fueling the trend. Obviously I'm summarizing here and probably badly; you should read the article yourself. It is available on SSRN at this link. You may need to register on the site to read the article.
We have wondered here before about the impact of the bad economy upon special education. What are your thoughts? Also Mark's article brings up a good point. Rowley only concerns FAPE cases. While that is the majority of cases, IDEA has other requirements, like LRE and evaluation and eligibility/child find and placement (a slippery term that means a lot of things like- LRE, stay put, discipline and maybe even location.)
Also as we have noted here about the trend in bullying cases and seclusion/restraint cases, the old maxim that bad facts make bad law has some resonance. We see courts and hearing officers paying lip service to Rowley and then not really applying its standard in cases where the facts are egregious. The sniff test seems to be closer to the real standard.
So read Mark's article, and tell us what you think.