"Some Benefit" or "Maximum Benefit": Does the No Child Left Behind Act Render Greater Educational Entitlement to Students with Disabilities

Abstract

I. INTRODUCTION The No Child Left Behind Act and the congressional reauthorization of the Individuals with Disabilities Education Improvement Act (IDEA) caused researchers to question whether the provision in the IDEA governing Free Appropriate Public Education should be revised to better serve the interests of special needs children. For each student protected by the IDEA, an instrument must be developed to serve the child's unique needs, and part of this requirement is the promotion of participation in the general curriculum. As determined by the national government, standards of achievement measured by assessment instruments are cornerstones of this new approach to education. This study examines federal legislation, including statutes, regulations, and case law interpreting whether a student is entitled to some or to a maximum benefit in education. A preliminary analysis suggests that the interpretation found in Board of Education of the Hendrick Hudson Central School District v. Rowley1, has changed little over the past quarter century. The United States Office of Education, however, may have a different opinion. Their recent study states that that further guidelines and research are important to establish before school personnel, parents, children, and the attorneys who represent each have a definitive position on this very important topic. II. THE ROWLEY DECISION The educational rights of students with special needs are created and protected primarily through the Individuals with Disabilities Education Act (IDEA).2 The Act provides extensive, detailed substantive and procedural rights and protections for disabled children and their parents. The Act's fundamental premise is that all special needs children are entitled to a appropriate public education (FAPE). Since the enactment of IDEA, there has been a great deal of litigation regarding what constitutes a FAPE. At the heart of this litigation is the definitive U.S. Supreme Court case of Rowley, which interpreted IDEA'S3 statutory definition of the term. The Court held that the statute does not require that a particular substantive standard be used to measure whether the education provided a special needs child is appropriate. In Rowley, the Court enunciated what it considered to be a tolerable4 standard for regulating the content of educational programs: Insofar as a State is required to provide a handicapped child with a free appropriate public we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the state's regular education, and must comport with the child's IEP [Individualized Education Program]. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.5 The Court found that establishing a test for all children covered by the Act would be too difficult6 and therefore confined its analysis to Rowley plaintiff's unique circumstances. The conclusion that education is appropriate if the child is achieving passing grades and advancing from grade to grade is implicit in the Court's reasoning. Rowley therefore established that equal access, rather than equal opportunity, was the IDEA'S goal.7 Through its decision in Rowley, the Court established a basic floor of opportunity which need only be individually designed to provide educational benefit to the handicapped child.8 Unfortunately, as later lower court opinions confirmed, in attempting to set forth a functional standard for the FAPE element of the IDEA, the Rowley Court created more ambiguity than clarity for educators seeking to meet the statutory requirements. …

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