Rowley Reconsidered: Revisiting Special Education's Landmark Case after 25 Years

Harold Schiffman hfsclpp at
Wed Jul 30 14:04:44 UTC 2008

Without Data All We Have Are Assumptions
Posted on: Tuesday, 29 July 2008, 03:00 CDT

By Crockett, Jean B Yell, Mitchell L

I. INTRODUCTION Policy decisions forged from legislation, regulations,
and litigation "cast long shadows of influence"1 over the practices
that guide the education of students with disabilities. Revisiting the
significance of past decisions can help reframe current policies or
clear the way for new ones, and such was the purpose of this issue of
the Journal of Law and Education. The papers presented in this
symposium proceed from a series of events that marked the 25th
anniversary of the Rowley decision, beginning with activities
initiated by the University of Wisconsin-Milwaukee and culminating in
a keynote presentation by several contributing authors at the annual
conference of the Education Law Association in November 2007.

The following commentary provides an epilogue to the special issue
entitled Rowley Reconsidered: Revisiting Special Education's Landmark
Case after 25 Years. Our intention is to weave together the threads of
insight offered by guest editors Elise Frattura and John LaNear, and
those of the distinguished contributors who readily shared their
scholarship and personal perspectives, including Amy Rowley, Philip T.
K. Daniel, Dixie Snow Huefner, Julie Mead, and Mark Paige. In the
epilogue we place our comments at the nexus of law and education by
reflecting on the forces of social policy that drive change in special
education, including professional initiatives that influence the
practices used by teachers and administrators. We then consider how
complex issues of accountability require educators to be more
diligent, and parents to be more vigilant, in using student-centered
data and scientifically- based instructional practices when designing
and assessing an appropriately individualized public education.


Arguably, the policy decision casting the longest shadow over the
meaning of an appropriate special education was made by the Supreme
Court on June 28, 1982 in the case of Board ofEduc. v. Rowley.2 A
fixed standard for a free appropriate public education (FAPE) has
never been set by Congress. However, the Rowley court determined that
appropriate meant tailored to a child's individual needs, not to the
needs of the school system, and that access to public schooling for
children with disabilities fell short of requiring schools to provide
the very best in programming.3 Some think this vague definition has
resulted in costly conflicts and litigation. Others caution that a
fixed standard of appropriate would be undesirable and antithetical to
the individualized nature of the Individuals with Disabilities
Education Act (IDEA).4

The IDEA, originally authorized as The Education for All Handicapped
Children Act (EAHCA) in 1975, began as a remedy for the exclusion of
millions of children from public instruction based solely on their
disabilities. As an educational funding statute, the reach of the IDEA
extends beyond civil rights protections by securing an appropriate
public education through the collaborative process of ensuring an
individualized education program (IEP) for each eligible student. The
law's least restrictive environment (LRE) principle guides placement
decisions so that students receive specially designed instruction in
regular classrooms, to the maximum extent appropriate to their
individual needs, and in alternative settings when teams of parents
and professionals determine that satisfactory progress cannot be made
in regular classes with specialized supports. From its enactment to
its most recent reauthorization, special education law has required
decisions about FAPE to be team-based and child-centered. In other
words, school districts and parents share a mutual obligation in
designing a beneficial education for a child who has a disability.

The contributors to this special issue examine the repercussions of
the Rowley decision on special education from various perspectives,
none more personally than the reflections of Amy Rowley who examines
this landmark dispute through the lens of her childhood memories.
Rowley comments that her narrative is an unusual entry in a
professional journal, and it is. Rarely are readers privy to the
reactions of the child at the center of a dispute. Now a professor of
American Sign Language, Rowley looks back sometimes in anger at the
isolation and absence of communication she experienced in elementary
school. Her anecdotes from classroom to playground vividly convey her
frustration with the type of accommodations she received as a deaf
student in a hearing environment. Rowley's concerns about educating
deaf children, in the past and present, are not unfounded; the absence
of communication and language for children who are deaf arrests the
development of their academic, social, and life skills.5 In advocating
for every child, whether deaf or hearing, Rowley's reflections speak
to the draining effect of such disputes on both children and their
families at the center of a special education conflict.

The impact of a disability on a student's opportunity to learn is a
recurring theme for Mead and Paige as they trace the precedential
influence of Rowley in special education policy to its influence on
other aspects of school law. Mead and Paige argue for the adoption of
a middle ground in defining FAPE that acknowledges the centrality of
both equal access and personal potential in developing a student's
IEP.6 Amy Rowley was unable to hear and that was the crux of the issue
in her case. Had the Court discussed Amy's limited physical access to
instruction resulting from her inability to hear, they argue, the
decision might have gone differently as Justice White suggested in his

Most disabilities affect the ways in which students' process
information and express themselves, but deafness, say Mead and Paige,
requires attention to the mode of communication itself. New provisions
in the IDEA 2004 require IEP teams to consider the use of sign
language as a special factor in educating deaf students, a provision
that might have been helpful to 8-year-old Amy June Rowley. Just as
new policy decisions are driving change in special education emerging
research is helping teachers and administrators recognize the language
characteristics of deaf students, and evaluate the quality and
character of classroom communication across a variety of educational
settings including special schools and inclusive classes.7

At the center of the current controversy surrounding the meaning of an
appropriate special education is the intersection of the IDEA with
another partially funded statute, The No Child Left Behind Act
(NCLB).8 Both pieces of legislation provide federal education dollars
to states, and both attempt to match diminishing resources to higher
expectations. In this issue, Daniel examines the relationship between
an individually appropriate education for students with disabilities
under IDEA, and the concept of an adequate education for all students
inherent in NCLB. Adequacy as a funding concept embodied in civil
rights legislation addressing equal educational opportunity dates, in
spirit, from Brown v. Board of Education.9 Lawsuits challenging how
American public schools are funded have been filed in 49 of the 50
states, and since 1989 plaintiffs have overwhelmingly prevailed in
funding cases based on adequacy. Such suits claim "that all schools
must receive the resources necessary to provide students with the
opportunity for a meaningful education that enables them to meet
challenging new state standards."10

Both Daniel and Huefner revisit the Rowley decision in light of the
broader accountability provisions of NCLB. Considering Rowley's
precedent that school officials need only provide some educational
benefit, Daniel raises the question of whether NCLB can be interpreted
as redefining FAPE by requiring students to meet content and
proficiency standards in the general curriculum. Noting that no court
to date has determined that a student's failure to show proficiency
signals a failure of FAPE, Huefner cautions that failure to meet and
implement the requirements of a student's IEP is far more than
harmless error.

Huefner traces changes in the IDEA statute and regulations, finding
the IEP to remain the proper tool for determining the extent of
educational benefit. In her analysis, she argues for revising the
standard of FAPE by reviewing evidence that the student has made
substantial progress toward at least a significant portion of the
goals articulated in the IEP. In honor of the individualization
required by the IEP, progress in meeting this standard should be
weighed against the child's capacity for growth.

Revisiting the Rowley decision from these various perspectives
underscores a central feature of special education as a public policy:
disability and impairment raise issues of social justice and practical
concern whenever societies pursue the goal of universal education.11
Simply put, children differ widely in how they learn, and a disability
represents a significant difference from what most people can do,
given their age, opportunities, and instruction.12 It is for this
reason that "the IDEA begins from a simple yet profound idea: that of
human individuality,"13 an idea articulated in the purpose statement
of the Act: "all children with disabilities have available to them a
free appropriate public education that emphasizes special education
and related services designed to meet their unique needs, and prepare
them for further education, employment and independent living."14
Special education, with its related services and supports, is the
vehicle through which the IDEA delivers individualized "in-puts," or
"counter-impairment interventions," designed to mitigate the effect of
a student's disability.15 As defined in the statute, special education
means specially designed instruction, at no cost to parents, to meet
the unique needs of a child with a disability including instruction
conducted in the classroom, in the home, in hospitals and
institutions, and in other settings."16 With the aid of specific and
intensive special education that addresses their disability-related
needs and ensures their access to the general curriculum, more
students with disabilities should benefit from the experiences
available to typically developing students. When specially designed
instruction is guided by research-based techniques, the likelihood is
increased that students will benefit and adjust more successfully to
the demands of the schoolhouse.17


Stakeholders might well ask the question, what is the proper measure
of educational benefit for special education students in this era of
standards-based reform? The basic right to learn is the centerpiece of
the accountability-movement, and the proof of learning is now assumed
to rest in positive results, not simply correct procedures. Program
improvements and educational progress for typically developing
students are now assessed against standard measures. However,
assessing the progress of special education students is complicated by
the nature of disability and the type of assessments used in most
states. Accommodations can conflict with the construct validity of
tests, and research has yet to provide assurance that these
assessments are accurately measuring what students really know and are
able to do. There are also major concerns with whether these
assessments are broad enough to capture the various ways that special
education students demonstrate their capabilities rather than their

Using personally relevant outcome data to demonstrate the meaning of
an appropriate education has long been advocated by Edwin W. Martin,18
a member of the group that used the term "appropriate" in Grafting PL
94-142 to refer to an education suited to the unique needs of an
individual with disabilities. Twenty years after the enactment of PL
94-142, and more than a decade after the Supreme Court's decision in
Rowley, Martin called for improving the effectiveness of special
education, and assessing appropriate instruction in ways that are
meaningful to a student's life. He asked a simple question to drive
home his point: "Do our programs meet the test of assisting students
to attain post-school success and positive self-regard?"19 Too often
special education decisions are based on argument instead of on data,
he noted, and "without data all we have are assumptions" about how
well students perform and how much they are capable of achieving.20

Using valid assessments with effective instruction has become
increasingly critical to making appropriate decisions that constitute
FAPE. The notion of how well school personnel communicate the results
for students is also significant and holds import for how
non-educators-parents, attorneys, judges-interpret the actions of


Two major areas of the IDEA that will significantly alter the ways in
which special education teachers work with their students are
requirements that (a) special education services be based on
peer-reviewed research, and (b) educators monitor and report on the
educational progress of students receiving special education. These
requirements may also serve to influence the ways that courts will
interpret the FAPE mandate of the IDEA.

The first requirement, added in the reauthorization of 2004, is that
the IEPs of students with disabilities must include a statement of the
required special education and related services and supplementary aids
and services, based on peer-reviewed research to the extent
practicable.21 Although IDEA does not define peer- reviewed research,
the 2006 regulations22 defined the term in accordance with NCLB's
requirement23 regarding scientifically-based research. According to
the language in NCLB, scientifically-based research applies the
rigorous, systematic, and objective methods of science to examine and
validate instructional procedures.24 This research (a) relies on
systematic, empirical methods that draw on observation or experiment,
(b) involves rigorous data analysis, (c) relies on measurements or
observational methods that provide reliable and valid data, (d) is
evaluated using experimental designs, (e) ensures that experimental
studies are presented in sufficient detail or clarity to allow for
replication, (f) is published in peer-reviewed journals or approved by
a panel of independent experts through a comparably rigorous,
objective, and scientific review. According to the U.S. Department of
Education's comments on the IDEA regulations, "states, school
districts, and school personnel must, therefore, select and use
methods that research has shown to be effective."25

The inclusion of this terminology may prove to be significant to
future courts when interpreting the FAPE mandate because the law
directs IEP teams, when developing a student's IEP, to base the
special education services to be provided on reliable evidence that
the program or service works. To comply with this new requirement,
therefore, special education teachers should use interventions that
empirical research has proven to be successful in teaching behavioral
and academic skills to students with disabilities.

The second major requirement in the IDEA, strongly emphasized in the
IDEA Amendments of 1997 and the reauthorization of 2004, is that
special education teachers must collect data to monitor student
progress toward the goals in their IEPs. By using such data, teachers'
educational decisions will be guided by objective information, rather
than subjective opinion. If the data show that a student is not
learning, the teacher can make instructional changes and continue to
collect data to determine if the instructional changes are working.
Thus, teachers can adjust their instruction in response to student
performance. Moreover, teachers must report to a student's parents the
progress that the student is making toward the goals on his or her
IEP. These reports must be provided concurrent with the issuance of
report cards,26 which in most school districts will be every nine
weeks. According to the U.S. Department of Education's comments on the
IDEA regulations, "we believe that these requirements will ensure that
progress toward achieving a child's annual goals can be objectively
monitored and measured."27

The IDEA, therefore, requires that (a) IEPs include annual goals that
can be measured, (b) teachers actually measure progress toward these
goals, and (c) parents be informed of their child's progress toward
the goals. The clear implication of these requirements is that, if a
student is not making adequate progress toward his or her annual
goals, his or her teacher should make instructional changes and
continue collecting data in an effort to improve student performance.

The contributors to this special issue illustrate the powerful
influence of the Rowley decision and what it means for special
education practice and law. The following principles derived from
revisiting this landmark case are offered as a means for restoring the
promise of the IEP as the tool for demonstrating the effectiveness of
specially designed instruction. These principles also reflect the
responsibility shared by educators and parents throughout the IEP
process for being vigilant in meeting a child's individual needs, and
diligent in using data and peer reviewed research to do so.

Principle #1: Ensure that special education teachers and
administrators understand the IEP requirements of the IDEA, as amended
in 1997 and 2004.

To ensure that public schools fulfill their obligations under the
IDEA, school-based teams must be able to develop and implement legally
correct and educationally meaningful IEPs. Huefner asserts that the
IEP is the proper tool for determining the benefit required for FAPE.
To develop meaningful IEPs, special educators must: (a) conduct
relevant assessments of students that provide information to teachers
on a student's unique academic and functional needs and how best to
address those needs; (b) develop meaningful educational programs for
students based on the assessment, which consists of special education
and related services grounded in research-based practices; (c)
generate measurable annual goals that will be used to monitor
students' academic and functional progress; and (d) monitor the
student's progress by collecting data on his or her growth toward
those goals, and make instructional changes when necessary. As Huefner
notes, "the (IEP) requirements are the substantive heart of the FAPE."

Principle #2: Ensure that special education teachers and
administrators understand and use research-based procedures.

The importance of using research-based educational procedures was
stressed in both NCLB and IDEA 2004. Given the IDEA requirement that
special education programs deliver meaningful benefit, it should be
noted that this level of benefit likely will not be realized when
ineffective instructional strategies are used. Thus, teachers must
understand and properly implement educational practices based on the
latest research. The way that teachers and administrators can ensure
that their programs deliver FAPE is to use educational procedures that
show evidence of producing meaningful outcomes. Principle #3: Ensure
that special education teachers know how to collect and use formative
data to monitor student progress.

The IDEA, as amended in 1997 and 2004, increases the federal mandate
that requires teachers to monitor student progress. To ensure that
special education programs confer meaningful benefit, special
education teachers must be able to collect data to determine if their
instructional and behavioral programs are working and that their
students are making progress toward meeting their measurable annual
goals. By using such data, teachers' educational decisions will be
guided by objective data. If the data show that a student is not
learning, the teacher can make instructional changes and continue to
collect data to determine if the instructional changes are working. By
adjusting their instruction in response to student performance,
teachers are more likely to develop and implement progress that leads
to increased academic achievement and functional performance.


In the Congressional findings section of IDEA 2004, Congress wrote
that "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."28 Recognizing
that the IDEA had been successful in ensuring that children with
disabilities and their families have access to a free appropriate
public education,29 Congress nonetheless stated that implementation of
the IDEA had been "impeded by low expectations and an insufficient
focus on applying replicable research on proven methods of teaching
and learning for children with disabilities."30 The primary purposes
of Congress in the reauthorizations of the IDEA in 1997 and 2004 were
to "ensure that educators and parents have the necessary tools to
improve educational results for children with disabilities"31 and "to
assess, and ensure the effectiveness of, efforts to educate children
with disabilities."32

A report from the House Committee on the Reauthorization of the IDEA
1997 stated that "the Committee believes that the critical issue now
is to place greater emphasis on improving student performance and
ensuring that children with disabilities receive a quality public
education."33 The Committee further noted that the reauthorization of
the IDEA was intended "to move to the next step of providing special
education and related services to children with disabilities; to
improve and increase their educational achievement."34 The language in
this House Committee report, and the language in the IDEA, seem to
have shifted the major purpose of the IDEA from providing access to
educational services, a purpose that had been demonstrably successful,
to providing meaningful and measurable special education programs that
result in improved results for students with disabilities. As Huefner
aptly states in this issue "the expectation of academic and functional
progress calls for more than a floor. Although IDEA does not expect,
let alone guarantee, any certain standard, it expects meaningful or
substantive progress."

According to Mead and Paige, for the past 25 years, the Rowley
decision has provided the framework for courts to determine whether
students were provided with a FAPE. An analysis of the IDEA
reauthorizations of 1997 and 2004, however, indicates that IDEA is no
longer about merely providing access to education, nor is it just
about affording students a basic floor of opportunity. The law now
embraces research, progress monitoring, and real results for students
with disabilities. Clearly, this will require changes in the ways that
school-based teams develop IEPs, and may influence courts on how they
view and assess FAPE. As Huefner concludes "after thirty years of
experience with the IDEA, and considering its 1997 and 2004
amendments, it is time for an authoritative, persuasive judicial
decision clearly enunciating the updated expectations of FAPE."

(Brookes 2006) for an extended discussion of the ways in which
legislation, litigation, administrative rules and regulations, and
professional initiatives have influenced decision-making in special
education. From 1967-1970 James J. Gallagher, Ph.D., served as the
first director of the Bureau for the Education of the Handicapped, now
the Office of Special Education Programs in the U.S. Department of
Education, a position which required him to implement new federal
legislation addressing special education for children with

2. 458 U.S. 176 (1982).


4. The Individuals with Disabilities Education Improvement Act of
2004, P. L. 108-446 (codified at 20 U.S.C. [section] 1400, et seq.

5. Lawrence Siegel, The Argument for a Constitutional Right to
Communication and Language, Sign Language Studies, Vol. 6, No. 3
(Spring 2006) at 255-272. Siegel argues for a constitutional right to
communication and language for deaf citizens as an essential
complement to the right to free speech.

6. This middle ground approach in effect combines the comparability
standard of FAPE ensuring equal access to educational opportunities
under Sec. 504, with the personalized standard of educational benefit
guiding special education under the IDEA.

7. Stephanie W Cawthon, Hidden Benefits and Unintended Consequences of
No Child Left Behind Policies for Students Who Are Deaf or Hard of
Hearing, AM. EDUC. RES. J., Vol. 44, No. 3 (Sept. 2007) at 460-492.
Cawthon studies how large scale reforms affect students with low
incidence disabilities and those with diverse linguistic backgrounds,
especially students who are deaf or hard of hearing.

8. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat.
1425 (codified at 20 U.S.C. [section][section]6301 etseq.

9. 347 U. S. 483 (1954).

10. Michael A. Rebell, Equal Opportunity and the Courts, PHI DELTA
KAPPAN, 89.6 (Feb. 2008) at 432-439.

Press 2006).

IT AND WHY WE NEED IT (Allyn & Bacon 2005).

13. Nussbaum, supra note 11, at 205.

14. 20 U.S.C. [section] 1400(d)(1)(A) (emphasis added).


16. 20 U.S.C. [section] 1401(29)(A) (emphasis added).

17. Jean B. Crockett, Taking stock of science in the schoolhouse: Four
ideas to foster effective instruction for students with learning
disabilities, J. LEARNING DISABILITIES, Vol. 37, Issue 3 (May/Jun
2004) at 189-199.

18. Edwin W. Martin, Ph.D. succeeded James J. Gallagher as the second
Chief of the Bureau for the Education of the Handicapped and served as
Deputy Commissioner of Education in the United States Office of
Education from 1969-1980.

19. Edwin W. Martin, case studies on inclusion: Worst fears realized,
J. SPECIAL EDUC., Vol. 29, Issue 2 (Summer, 1995) at 192- 199).

communication from Edwin Martin to Jean Crockett, April, 1996.)

21. 20 U.S.C. [section] 1414(d)(1)(A)(i)(IV).

22. 34 C.F.R. i 300315 et seq.

23. 34 C.F.R. [section] 300.25.

24. 20 U.S.C. [section] 9101(37).

25. Federal Register, Vol. 71, no. 156, Monday, August 14, 2006, p. 46665.

26. 20 U.S.C. [section] 1414(d)(1)(A)(III).

27. Federal Register, Vol. 71, no. 156, Monday, August 14, 2006, p. 46664.

28. 20 U.S.C. [section] 1401(C)(1).

29. 20 U.S.C. [section] 1401(c)(3).

30. 20 U.S.C. [section] 1401(c)(4).

31.20 U.S.C. [section] 1401(d)(3).

32. 20 U.S.C. [section] 1401(d)(4).

33. H.R. Report 105-95, at 83-84 (May 13, 1997).

34. Id.


* Jean B. Crockett, Ph.D., is an Associate Professor in the Department
of Special Education at the University of Florida. She is the Special
Education Editor for the Journal of Law and Education, and
President-Elect of the Council for Exceptional Children- Division for

** Mitchell L. Yell, Ph.D., is the Fred and Francis Lester Chair of
Teacher Education in the Department of Educational Studies at the
University of South Carolina.

Copyright Jefferson Law Book Company Jul 2008

(c) 2008 Journal of Law and Education. Provided by ProQuest
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