Sunday, August 30, 2015

Rowley FAPE Standard: Some Vs Meaningful Educational Benefit #FAPEstandard

As I have said here many times, special education law is closer to metaphysics than it is to contract law.  We don't have many solid hornbook rules.  Even the FAPE standard- perhaps the best established principle in this ever-growing area of law- sometimes seems to have some wiggle room.

The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter or“FAPE.” IDEA, Section 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, Section 602(9).  See also 34 C.F.R. Sections 300.101 to 300.113.

          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, or “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 (and by implication, due process hearing officers) 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 concluded 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.

            OK so that is close to a hornbook style rule, right. Unfortunately even here there is room for argument.

         Whenever a court discusses a FAPE issue, it invariably quotes Rowley, as it should.  But then some circuits state the standard as meaningful educational benefit; whereas some state the standard as some educational benefit. Many have argued that the latter standard is higher.

             This issue hit the fan in a Tenth Circuit decision issued last Tuesday. The case is Endrew F by Joseph F & Jennifer F v. Douglas County Sch Dist RE-I 115 LRP 39422 (10th Cir. 8/25/2015). In this case, the parents urged the Court to adopt the "higher" meaningful benefit standard. The court analyzed the issue and decided to apply the some educational benefit standard.

           The thing is that I don't think that the practical applications of the standard are different whether called meaningful or not.  The Supreme Court has spoken on the FAPE standard, and the circuit courts of appeal are not free to adopt a higher standard. In our system the Supremes get the final word. The Rowley standard is the law. Period.

       Also I don't see much difference in how the standard is applied on a given set of facts, regardless of whether the term meaningful is added by the courts.  The result is really the same for all practical purposes. Indeed, the Tenth Circuit hinted at this problem in its opinion. (The cool stuff is always in the footnotes.) In footnote number 8, the court noted that the difference between meaningful benefit and some benefit is not clear. I agree completely.

             You can and should read the Tenth Circuit's opinion here.  This argument will come up again.

              So what do you think? What the heck is the FAPE standard? And can't we agree on anything?


  1. JG,
    I just found your blog through one of my classes and I am thoroughly enjoying it. Thank you. We are discussing educational benefit now in this class and found it appropriate to respond to this post. I agree with you completely on this, the application of educational benefit is not different if meaningful is used instead of some. Their is no measurable difference between meaningful and some, besides that fact that meaningful does sound more optimistic, in my own opinion.

    Thank you for your blog and the amazing amount of information it contains.

  2. Anon,

    Thanks for your kind words. Good luck in school


  3. You are correct, the argument has come up again. Yesterday, May 31, 2016, the Supreme court issued a CVSG in Endrew F by Joseph F and Jennifer F vs Douglas County School District (No. 15-827)

  4. Anon,

    Thanks for your comment and heads up.

    Jim Gerl

  5. Thank you for the nutshell.

    It is lamentable the potential-maximizing standard was defeated by basic floor of opportunity. To me, that's where the real tension lies. If the Court was right, Congress short changed education (in another of numerous ways). If the Court was wrong, Congress should clarify the statute.

    The second part of the debate, what constitutes the floor, is just sad. I applaud efforts to elevate it from the basement floor to at least the first or second story floor. Alas, no.

  6. Grant,

    Thanks for your comment.


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