The Rowley Standard – Part Two

Board of Education of Hendrick Hudson School District v. Rowley

The passage of time has not yet vindicated the dissent authored by Justice White and joined by Justice Brennan and Justice Marshall in Board of Education of Hendrick Hudson School District v. Rowley. For a quick primer on the facts surrounding the decision in Rowley, please refer to my previous article. In this post I will look at the reasoning behind Justice White’s dissent in Rowley and Congress’ re-authorization of the IDEA in 1997 which was the catalyst for a number of cases that were brought forward re-examining the Rowley standard.

Legislative History of the Act
In his passionate dissent, Justice White challenges the majority opinion with a look at the legislative history behind the Education of All Handicapped Children Act (later reauthorized as The Individuals with Disabilities Education Act). Legislative history is composed of the documents, committee reports, testimony, debates and other material generated when considering legislation. If there is ambiguity in a statute, attorneys may look to such documents to determine congressional intent. Justice White challenges the majority’s interpretation of an “appropriate” education by referencing numerous indicators of congressional intent found within the statute’s legislative history. He reasons:

The Act itself announces it will provide a “full educational opportunity to all handicapped children.” This goal is repeated throughout the legislative history, in statements too frequent to be “passing references and isolated phrases.”… According to the Senate Report, for example, the Act does “guarantee that handicapped children are provided equal educational opportunity.” This promise appears throughout the legislative history.

Indeed, at times the purpose of the Act was described as tailoring each handicapped child’s educational plan to enable the child “to achieve his or her maximum potential.”
(citations have been removed for readability)

Justice White, relying upon the legislative history and the actual language of the Act, concludes that the Majority opinion by conscribing the definition of an “appropriate” education to one that provides a “meaningful benefit” falls far short of the promise made by the Act of “specially designed instruction at no cost to parents or guardians, to meet the unique needs of a handicapped child.” Essentially, Amy Rowley receiving “meaningful benefit” in a classroom without the sign language interpreter for which her parents advocated is not tantamount to her receiving an education that meets her unique needs. It is not an education which would “eliminate the effects of the handicap.” It is not an education which would provide her with an equal opportunity to learn. Criticizing the majority’s cramped interpretation, Justice White tersely states, “The Act promises more.”

Following the Decision in Rowley
A vehement dissent in a Supreme Court decision may eventually be validated and adopted as the law of the land. One way to achieve such a turnabout is for Congress to amend the statute at issue and by speaking clearly alleviate any ambiguity in the language of the statute. Another way is through the passage of legislation at the state level as exemplified in Kelo v. City of New London (an infamous Supreme Court decision which allowed the taking of privately held land that was considered blighted which resulted in forty-four states passing laws to curb the abuse of eminent domain). Of course, it is always possible for the Supreme Court to overrule itself in a subsequent case as it did quite dramatically in the landmark decision Gideon v. Wainwright (the Supreme Court in Gideon v. Wainwright held that state courts are required under the sixth amendment as extended to the states through the fourteenth amendment to provide counsel to indigent defendants in criminal cases thereby overruling the Court’s previous decision in Betts v. Brady). I will explore these avenues of possible reversal beginning with Congress’ reauthorization of the IDEA in 1997 and relevant caselaw associated with the amended statute.

Congressional Reauthorizations of the IDEA
The IDEA has been reauthorized and amended numerous times since it was enacted by Congress as The Education of All Handicapped Children Act. Since the Rowley decision, the IDEA was reauthorized in 1983, 1986, 1990, 1997, and 2004. With each of these reauthorizations which occur approximately every four years, Congress has the opportunity to amend and clarify the meaning of the statute. The most recent 1997 and 2004 reauthorizations have engendered cases that have tested whether the Rowley standard endures.

IDEA Reauthorization in 1997 and Deal v. Hamilton (2004)
The reauthorization of the IDEA in 1997 contained new and heightened emphasis on substantive and not simply procedural compliance. The following congressional comments prefaced the amended Act:

“Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities. The implementation of this act has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.”

These new (or, arguably old requirements more clearly articulated) were cited by the 6th Circuit Court of Appeals in Deal v. Hamilton (the parents of a seven year-old child with autism were seeking reimbursement for Lovaas-style ABA therapy and private placement while the district contended that the program they offered which did not include Lovaas-style therapy but a more ‘eclectic approach’ should not be judged in comparison with the Lovaas-style therapy but only as to whether it was an “appropriate” placement offer). After a somewhat convoluted procedural history* the matter of Deal v. Hamilton was decided by a court of appeals channeling the spirit of the amended IDEA:

The facile answer to the question raised by this disagreement is that a school district is only required to provide educational programming that is reasonably calculated to enable the child to derive more than de minimis educational benefit. This Court and others faced with essentially the same question have decided that school systems are not required to provide autistic children with the sort of intensive (and expensive) educational program pioneered by Dr. Lovaas.

At some point, however, this facile answer becomes insufficient. Indeed, there is a point at which the difference in outcomes between two methods can be so great that provision of the lesser program could amount to denial of a FAPE. A school district clearly is not required to “maximize each child’s potential commensurate with the opportunity provided other children,” Rowley, 458 U.S. at 198, 102 S.Ct. 3034 (internal citation omitted), i.e., to provide all children with equal educational opportunity. The Third Circuit, however, has held that an IEP must confer a “meaningful educational benefit.” Further, that benefit “must be gauged in relation to a child’s potential.” Based on the analysis set forth below, we agree that the IDEA requires an IEP to confer a “meaningful educational benefit” gauged in relation to the potential of the child at issue. *
citations removed for readability.


Educational outcomes, replicable research based therapy, and somewhat more heightened expectations for children with special needs are hallmarks of the 1997 reauthorization. The above language from the decision in Deal v. Hamilton was in keeping with the spirit of the recently reauthorized IDEA because: the court considered the potential of the child at issue and looked to the “difference in outcomes” when weighing which potential therapy to employ; credence was given to the research-based Lovaas-style therapy as opposed to the more “eclectic” therapy offered by the district, and a disparity in outcomes between two methods was contemplated when determining whether FAPE was offered. This decision which referenced the earlier decision Polk v. Central Susquehana Intermediate Unit 16 (1988) was itself referenced and refined by other courts in their interpretation of FAPE.

California continues to explore the parameters of an education that confers a “meaningful benefit.”The ninth circuit decision in N.B. v. Hellgate Elementary School District significantly references the 6th Circuit’s decision in Deal v. Hamilton when applying the “meaningful benefit” requirement in the 1997 amendments to the IDEA. However, this interpretation may be short-lived with the most recent decision in J. L. v. Mercer Island School District.

I hope that by reading this post and my previous post following the evolution of the IDEA that you appreciate the malleability of this evolving area of law. With my next installment I will explore the 2004 revision of the IDEA and additional case law further refining the definition of FAPE and the Rowley Standard. Specifically, I will look at J.L. v. Mercer, which appears to have cramped the expansive language in N.B. v. Hellgate.

*After being unable to reach agreement with the school district over the provision of ABA services for their son, Zachary, the Deals filed a due process complaint. The Deals were the prevailing party in the due process hearing. However, the Deals sought additional reimbursement in a district court for privately obtained services and attorney fees for the administrative hearing which the Administrative Law Judge (ALJ) had declined to award. The school district requested an additional evidence hearing from the district court to present testimony and additional documents. The district court granted the school district’s request and ultimately reversed the ALJ decision holding that the Deals were not entitled to reimbursement. The Deals appealed the decision.