Vol. 79, No. 4, pp. 497-508.

©20 ¡3 Council for Exceptional Children.

Exceptional Children

Is It Time for Elevating theStandard for FAPE Under IDEA?

PERRY A. ZIRKELLehigh University

ABSTRACT:r: • This article examines a critical question for the special education community: What

should be the current meaning of "free appropriate public education" (FAPE) in light of not only

the Supreme Court's landmark Rowley decision in 1982 hut also developments in the 3Ú years

since then? After synthesizing what the Rowley Court, the scholar-commentators, and the post-

Rowley lower courts have said, the author examines the latest answer from Congress via the. 2004

Individuals With Disabilities Education Act amendments. Particular attention is paid to the pro-

vision concerning peer-reviewed research and the recent case law interpreting this provision. The

author suggests that the time is ripe for the special education community to help Congress fashion

an appropriately heightened substantive or at least procedural standard for FAPE.

The cotnerstone of the IndividualsWith Disabilities Education Act(IDEA) is tbe child's entitlementto "free appropriate public edu-cation" (FAPE), as documented

in an individualized education program (IEP).Ever since the inception of the otiginal version ofIDEA in 1975, tbe key question has been the op-etational meaning of EAPE, that is, what is theextent of the child's entitlement (or, conversely,the districts obligation)? The FAPE issue, includ-ing the high-stakes remedies of tuition reimburse-ment and compensatory education, accounts forthe vast majority of the litigation under IDEA(e.g., Zirkel, 2012). It is also of central signifi-cance to various stakeholders in botb general andspecial education—including practitioners, pro-fessors, and parents—in addressing the needs ofindividual children with disabilities in the contextof school system resources and responsibilities.

Thus far, the special education communityhas not been prominent in answering this ques-

tion. Other voices, including advocacy groupsand legal commentators, have domihated the de-liberations in Congress and in the courts. Yet, •scholars and practitioners in special éducationhave both the advancing knowledge and continu-ing obligation to address FAPE under IDEA.

Reviewing the successive soui'ces that haveaddressed the EAPE question to the critical, pte-sent time facilitates the infotmed considerationand active participation of tbe btoad special edu-cation community. Since the Suprerrie Court'slandmark decision in Board of Education v. Rowley(1982), the scholarly commentaty addressing theFAPE question has been ptimarily but not exclu-sively from the legal rathet than the special edu-cation community. Duting the same time period,lower courts have interpreted Rowley i-estrictivelyrather than expansively Although Congress, in its2004 amendments to the IDEA, added a quali-fied standatd of peer-reviewed research (PRR) tothe IEP provision for FAPE, recent case law hascontinued its district-deferential trend. It is

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apparent that the timé is ripe for Congress to de-termine a heightened substantive or at least proce-dural standard FAPE, chus at least restoringRowley or adjusting it in line with the threedecades of posi-Rowley maturation of the specialeducation field.

T H E ROWLEY D E C I S I O N

In Rowley (1982), the Supreme Court provided aninitial answer to the question of the operationalmeaning of FAPE. The child in this case, AmyRowley, was a deaf student in first grade. The pro-posed IEP included placement in a general educa-tion class, the use of an FM hearing aid, 1 hr perday of instruction from a tutor for the deaf, andspeech therapy for 3 hr per week. Amy was doingwell with these services, but her parents pointedout the notable disparity between her performanceand potential due to her disability. To provide herwith an opportunity commensurate with herpeers, Amys parents sought the addition of inter-preter services for all of Amy's academic subjects.

The Supreme Court focused on the defini-tion of FAPE in what was then the original ver-sion of IDEA, finding it to be helpful but notsufficiently specific to reveal Congressional intent.Against the historical backdrop of exclusion ofchildren with disabilities, the majority opinionviewed the various provisions of the Act as em-phasizing access via procedures, such as the pre-scribed parental notices, IEP team members, IEPforrnat specifications, and dispute resolutionmechanisms. As a result, the Court used a clarify-ing metaphor to conclude that the purpose of thelegislation was to "open the door" {Rowley, 1982,p. 192) rather than provide a high substantivefloor. Thus, the Rowley Court concluded that themeasure for FAPE is a two-pronged standard: (a)Did the district comply with the various applica-ble procedures? and (b) Is the IEP "reasonably cal-culated to enable the child to receive educationalbenefits?" (1982, pp. 206-207). The emphasiswas on the first, procedural prong. In contrast,the substantive prong was relatively low; indeed,as the dissent pointed out, a school district appar-ently could meet it by providing Arhy with ateacher who had a loud voice. However, deaf tothe dissent, the majority rejected the higher sub-

stantive standards of self-sufficiency, comniensu-rate opportunity, and maximization as beyondCongressional intent.

Finding no dispute with the lower courts' de-cisions that the district had complied with theprocedures of .the Act, the majority concludedthat, based on Amy's notably positive progi ess, theIEP met the .substantive standard for FAPE. Byway of what is known as "dicta," or ancillary com-mentary that does not directly answer thé issue ofthe case, the majority provided two caveats. Thefirst, which subsequent lower courts (characterizedhere as "the Rowley progeny") have largely ignored;is that "We do not attempt to establish any onetest for [FAPE]," instead cabining the answer tothe context of a child "who is performing aboveaverage in the regular classrooms of.a publicschool system" {Rowley, 1982, p. 203). The major-ity's second Shakespearean aside, which the Rowleyprogeny have frequently applied, is one of judicialdeference to state and local authorities, especiallyfor questions of educational methodology.

THE COM IVI E NTATORS

In a long line of commentaries in the educationlaw literature, reformist authors have advocatedelevating the substantive standard for FAPE.These journal articles generally fit into three suc-cessive segments. The first and second segnients,or stages, argued that Rowley (1982) is oui:datedin light of more recent Congressional action, par-ticularly the 1997 and 2004 IDEA amendments.For example, the 1997 amendments started withfindings that emphasized high expectations foroutcomes in general education, and the 2004amendments appeared to further extend this eni-phasis on accountability.

THE FIRST STAGE

The first segment of commentary was based onthe 1997 amendments and was directed at thecourts. More specifically, a law student relied onthe emphasis on outcomes in IDEA 1997 to posita heightened benefit standard for the courts: "rea-sonably calculated to confer measurable educa-tional progress based on the general educationcurriculum" (Eyer, 1998, p. 17). Another law stu-dent, who subsequently became a parent attorney.

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echoed this position, adding that "judicial en-forcement of IDEA can no longer be complacentwith merely 'opening the door' of educational op-portunity for children with disabilities" (Quade,2001, p. 71). Subsequently and similarly, a parentattorney advocated that courts apply a heightenedsubstantive standard for FAPE based on the shiftfrom mere access to high expectations in the 1997amendments of IDEA, with supplementary refer-ence to the No Child Left Behind Act of 2001(NCLB) and state school finance litigation (John-son, 2003).

THE SECOND STACE

The next wave of articles relied on the 2004amendments and directed their proposals largelyto the administering agency or Congress. Morespecifically, one commentator proposed that theU.S. Department of Education adopt a morestringent substantive standard in the IDEA regu-lations pursuant to the 2004 amendments (Blau,2007). She relied on the preamble of IDEA 2004,which stresses the importance of improved educa-tional outcomes for self-sufficiency of individualswith disabilities and v/hich incorporates NCEB's"adequate yearly progress" accountability provi-sion (§ 6311[b][2]). However, her message was ei-ther too little or too late, because the 2006 IDEAregulations did not incorporate this change. Ex-hibiting less restraint. Yell, Katsiyannis, andHazelkorn (2007) opined that the 2004 amend-ments signified "a fundamental alteration in theways in which the courts view a FAPE" (p. 9). Onthe more cautious side, Huefner (2008) distin-guished what the courts will do from what theyshould do—adopt a substantive standard of "sub-stantial progress toward at least a significant por-tion of the goals [in relation to] the individualchild's capacities for growth" (p. 379).

Similarly, another pair of commentatorscharacterized IDEA 2004 as heightening the out-comes-oriented standard of IDEA 1997 but, rec-ognizing the resistance of the intervening courtdecisions, addressed their more tempered pro-posal to Congress (Daniel & Meinhardt, 2007).More specifically, they cautiously concluded thatthe Rowley Court's "minimalist interpretation" (p.532)—that is, the floor-based standard of reason-able calculation for benefit—could be outdated.

suggesting only that "the extent ... remains am-biguous and should be addressed in future legisla-tion" (p. 335).

THE THIRD STAGE

The most recent segment of commentary islargely in the January 2012 issue of xht Journal ofLaw and Education, which focused on the sub-stantive side of the Rowley standard. The majorityof the contributors echoed the criticism of earliercommentary, but they were more varied in theirproposed solutions. Tempering his earlier pro-posal, Johnson (2012) proposed that courts adoptthe Third Circuit's "meaningful benefit" interpre-tation of Rowley, pending Congressional clarifica-tion in an upcoming reauthorization. Selectivelyciting separate strands of judicial movement inthis direction, Weber (2012) reached this evenmore restrained conclusion: "It is premature tolabel Rowley obsolete, but a common-law ap-proach to an appropriate education—one thatleads to proportional maximization or one thatdoes not—may be glimmering on the horizon"(p. 128). Taking a preemptive approach, Kaufmanand Blewett (2012) instead suggested that theoutcome standards and enforcement mechanismsof the NCLB are effectively replacing the IDEARowley-hdiSta litigation, with residual ambiguityand concerns about individual rights. Illustratinga more circuitous alternate route, MacFarlane(2012) speculated that the Common Core StateStandards may raise the bar for FAPE via its statu-tory definition.

In stark contrast with the other contributors,viewing the glass on the full side. Seligmann(2012) celebrated Rowley in comparison to themore recent shift in the Supreme Court and soci-etal landscape. She concluded that although Row-ley's substantive standard for FAPE is relativelylow, its insistence on individualization not depen-dent on costs has "supported the development of apowerful mandate for special education" (p. 94).However, in the context of autism cases, she previ-ously focused on the empty side of the glass, con-cluding that Rowley had not provided sufficient"teeth" (Seligmann, 2005, p. 287) to defeat costcontentions and pro-district deference, particularlyin FAPE disputes centered on methodology.

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Filling out this third segment, three other ar-ticles recently proposed varying approaches to theFAPE standard. In a special education journal,Etscheidt (2012) suggested that the general accessorientation of IDEA and the aggregate account-ability influence of NCLB had an eroding effecton FAPE. Instead, to assure the individualized in-tegrity of the Rowley educational-benefit standard,she proposed that Congress (a) remove the NCLBcap on the number of students with disabilitiestaking alternative assessments with alternativestandards, and (b) strengthen IDEA's progressmonitoring provisions.

At about the same time, two law review arti-cles appeared that suggested different solutions.In one, a law student proposed that the Depart-ment of Education issue an IDEA regulationdefining FAPE similar to the commensurate op-portunity standard in the definition of FAPE inthe Section 504 regulations (Coldschmidt, 2011).In the other and much more thorough analysis, alaw professor proposed that courts reinvigoratethe procedural emphasis oïRowley by interpretingthe oft-ignored procedural-violation provision inIDEA 2004 in light of three structural princi-ples—individualization, collaboration, and con-tractualization (Romberg, 2011).

THE ROWLEY PROGENY

During the 30 years since Rowley (1982), includ-ing the successive periods of this continuing com-mentary, the lower courts have applied itstwo-pronged standard to hundreds of FAPEcases—thus providing the precedents for thou-sands of hearing and review officer decisions underIDEA—in four significant ways. The first way isspecific to the procedural prong, whereas the otherthree are applications of the substantive prong.

PROCEDURAL PRONG.- EROSION

First, the Rowley progeny gradually eroded theprong specific to compliance with the proceduralrequirements of the Act by developing a harmless-error (i.e., no harm, no foul) approach, akin to afootball referee not throwing a penalty flag for in-terfering with the pass receiver if the pass was sooverthrown as not to be catchable. In a long andincreasingly consistent line of cases under IDEA

(e.g., Zirkel, 2012), the courts have ruled if thedistrict violated various applicable procedures, butthe noncompliance did not result in failure tomeet the floor-based substantive prong, the childwas not denied FAPE.

At the same time, with occasional exceptions,the lower courts have generally treated as proce-dural not only IDEA's notice and meeting re-quirements, including IEP team membership(e.g., AH. V. Department of Education, 2010), butalso various other IDEA specifications that specialeducation experts would arguably find at leastequally substantive: the IEP's key contents, suchas present educational levels (e.g., Nack v. OrangeCity School District, 2006), measurable annualgoals (e.g., Leticia H. v. Ysleta Independent School

District, 2007), related services specifications(e.g., Stanley C. v. M.S.D. of Southwest AllenCounty Schools, 2008), and—at least at age 16—transition services (e.g., Tindell v. Evansville-Vanderburgh School Corp., 2011). As a result, in

these cases, the parents lost at a second hurdle;despite preponderant proof of a procedural viola-tion, the court did not find a resulting loss of ed-ucational benefit. Similarly and even more starkly,appellate courts in recent years have undercut theIDEA structure of providing for corollary statelaws that, may provide higher standards by treat-ing such standards as merely procedural and thussubject to this defendant-friendly, harmless-errorapproach {A.C. v. Board of Education, 2009; L.M.V. Capistrano Unified School District, 2009).

Even when sweeping various hallmarks ofcurrent special education practice under the pro-cedural umbrella, courts have even gone so far asapply the opposite per se approach, finding auto-matic substantive adequacy. For example, in AlexR. V. Forrestville Valley Community Unit SchoolDistrict (2004), the Seventh Circuit Court of Ap-peals summarily rejected the parents* challenge tothe adequacy of their child's behavior interventionplan (BIP) without considering whether it wasreasonably calculated for the child's benefit.Instead, finding no IDEA definition or standardsfor a BIP, the court blithely concluded that theIEP's BIP, regardless of what it provided or lacked,"could not have fallen short of substantive criteriathat do not exist" (p. 615).

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SUBSTANTIVE PRONG: NON-RIGOR

Second, acknowledging that the Supreme Courtestablished a merely "modest" substantive standard(e.g., Z. W. V. Smith, 2006), the lower courts haveconsistently resisted raising this other prong ofRowley, interpreting the preamble and purposes ofthe successive amendments of IDEA as insufficientin light of the unchanged statutory definition ofFAPE (Zirkel, 2008a). As this comprehensive can-vassing of the case law clearly showed, the courtsaddressing the contentions of the first two stagesof the commentary have clearly rejected these ar-guments, with the one unpublished federal districtcourt decision serving as the limited and only tem-porary exception, or outlier (Zirkel, 2008a). Morerecently, the Ninth Circuit Court of Appeals re-versed the district court, thus making the patternquite consistent {J.L. v. Mercer Island School Dis-trict, 2010). Following the approach of the rest ofthe Rowley progeny, the Ninth Circuit acknowl-edged the lofty prefatory language in the IDEA'ssuccessive amendments, but concluded that ifCongress had intended to revise Rowley (1982) itwould have expressed its disagreement andchanged the FAPE definition in the Act.

More generally, although the courts have var-ied in their specific elaborations of Rowleys sub-stantive prong (e.g., Wenkart, 2009), the variationhas been relatively limited within a consistentlydistrict-favorable range chat is short of the Rowtey-rejected standards of self-sufficiency, commensu-rate opportunity, and maximization. For example,at the high end of the range the Third CircuitCourt of Appeals has interpreted Rowley (1982) asrequiring a "meaningful" educational benefit (e.g.,Ridgewood Board of Education v. N.E., 1999).However, the lower courts in the Third Circuithave followed this standard to accept rather mini-mal results, showing that the adjective did not addsignificant rigor. For example, a Pennsylvaniacourt ruled that an IEP for a student with a spe-cific learning disability that restilted in 2 monthsof progress in the next 10 instructional monthsmet this substantive standard [Delaware ValleySchool District V. Daniel G., 2002).

Similarly, consider from the perspective ofspecial education expertise whether, generalizationis one of the criteria for substantive FAPE—thatis, should the child be able to transfer classroom

benefit to demonstrable functional performancein other settings, such as the community and thehome? Thus far, without clear Congressional di-rection, the courts have rather consistently con-cluded that generalization is not part of FAPE'ssubstantive formulation (e.g., San Rafael Elemen-tary Scbool District v. California Special EducationHearing Office, 2007; Thompson R2-J School Dis-trict v. Luke P., 2008).

Should the child be able to transfer

classroom benefit to demonstrable

functional performance in other settings,

such as the community and the home?

SUBSTANTIVE PRONG: DEEERENCE

Third, reinforcing this low rigor of the substan-tive prong, the lower courts have interpreted theconcluding dicta in Rowley (1982) about leavingthe choice of "educational method ... to state andlocal educational agencies" (p. 207) as generallyestablishing an adjudicative deference, whichstarts with hearing and review officers, to dis-tricts. This general expansion of the Rowley dictahas gone well beyond methodological issues andignores the dicta's tandem phrase "in cooperationwith the parents . . . of the child" (p. 207). Forexample, in applying the Rowley reasonably calcu-lated test to an IEP that the parents had success-fully challenged at the hearing, the SeventhCircuit Court of Appeals correctively concluded:

The hearing officer substituted her judgmentfor that of the school administrators. Thehearing officer thought the administratorswere mistaken and they may have been.However, the administrators were not unrea-sonable. (Alex R. V. Forrestville Valley Commu-

nity Unit School District, 2004, p. 611)

Similarly, in upholding a district's extendedschool year policy for students with disabilities, afederal district court cited Rowley for "the strongdeference" accorded to local and state educationauthorities {McQueen v. Colorado Springs SchoolDistrict No. 11, 2006, p. 1309).

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SUBSTANTIVE PRONG: NON-NCLB

Fourth, to the extent that the most recent com-mentaries have alternatively relied on NCLB, thelower courts have consistently minimized the roleof NCLB in IDEA FAPE cases. As described inmore detail elsewhere (Daniel, 2008; Zirkel,2008a), the courts have summarily rejected theapplication of the NCLB academic con-tent/achievement standards to elevate the substan-tive standard for FAPE (e.g.. Fisher v. StaffordTownship Board of Education, 2007; Leighty v.Laurel School District^ 2006; School Board v.MM., 2007). Moreover, the prolonged delay inreauthorization of NCLB and the reduced rigorin the latest draft bills (e.g., Klein, 2012) wouldseem to warn against robust reliance on the roleof this Act to elevate the standard for FAPE.

T H E 2 O O 4 I D E A A M E N D M E N T S

The 2004 IDEA amendments enacted two provi-sions pertinent to the FAPE two-pronged stan-dard. The first largely codified the judicial erosionof the procedural prong, which limited denial ofFAPE to procedural noncompliance that had aharmful substantive result. In contrast, the secondprovision presented for courts' possible elevationof the substantive prong.

CODIFICATION OF PROCEDURAL EROSION

First, recognizing and reinforcing the lower courts'harmless-error approach Congress codified the re-laxation oí Rowley s (1982) primary prong, with alimited exception. In this IDEA provision.Congress emphatically established, by repeatingthe limitation in two ways, that a hearing ofFicermay fmd a denial of FAPE only for proceduralviolations that "impeded the child's right toFAPE" or "caused a deprivation of educationalbenefit" (20 U.S.C. § l4l5[f][3][E]). The firstalternatives reference to "right to FAPE" arguablyrefers to the substantive prong, as the second alter-native clarifies by incorporating the Rowley Courtsformulation in terms of educational benefit. Pro-viding another interpretation, Romberg (2011)argued that the first prong distinctly requires amore strict procedural test: whether "the processthe school district has employed in creating theIEP has diverged from the structura! due process

right to a collaborative, open-minded, individual-ized assessment" (p. 466). Thus far, the courts thathave cited this new provision have done so in con-tinuing their relatively relaxed harmless-errorapproach rather than adopting Romberg's ap-proach (e.g., A.M. V. Department of Education,2010; Tindell, 2Q\\).

In any event, the arguable exception in thisprovision is where the district has "significantlyimpeded the parent's opportunity to participate inthe decision-making process regarding the provi-sion of [FAPE]" (20 U.S.C. § l4l5[f][3][E]).Seeming to select one procedural violation as sin-gularly fetal due to centrality of parental participa-tion, this language appears to represent a per sestandard, that is, that its violation is automaticallya denial of FAPE without evidence of impeding ordepriving the child of FAPE. However, this inter-pretation has had difficulty gaining judicial trac-tion in two successive ways. First, as a thresholdmatter, parents have not succeeded in preponder-antly proving its violation in most of the pertinentcourt decisions to date (e.g., A.M. v. MonroviaUnified School District, 2010; B.H. v. Board ofEducation, 2009; K.E. v. Independent School Dis-trict No. 15, 2011); the exceptions have been rela-tively rare (e.g., Drobnicki v. Poway Unified SchoolDistrict, 2010). Second, the published case law di-rectly supporting this per se interpretation of this,language has been insignificant to date (Board ofEduc. V. Schaefer, 2011), thus effectively eviscerat-ing its exceptional, rigorous status.

POTENTIAL FOR SUBSTANTIVE ELEVATION

The second and potentially reverse, or compen-sating, provision appeared in the specificationsfor lEPs, which indirectly but intimately con-cerns FAPE. Specifically, IDEA 2004 providedthat the IEP's specification of specially designedinstruction and related services be based on "peerreviewed research to the extent practicable"

,(§ l4l4[d][l][A][lV]). The regulations merelyrepeat this conditional requirement without elabo-ration (§ 300.320[a][4]), but the commentsaccompanying the regulations explained úi2Lt peer-reviewed research (PRR) "generally refers toresearch that is reviewed by qualified and indepen-dent reviewers to ensure that the quality of theinformation meets the standards of the field before

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the research is published" (IDEA Final Regula-tions Commentary, p. 46,664) and that "to theextent practicable, as used in this context, gener-ally means that services and supports should bebased bn [PRR] to the extent that it is possible,given the availability of "PRR]" (p. 46,665). Basedon its centrality to current special education bestpractice, the case law interpreting this provisionmerits separate attention.

THE PRR CASE LAW

ONE APPROACH

A hearing officer in Iowa, who is a full-time pro-fessor of special education, provided the initialand potentially groundbreaking PRR decision inrelation to Rowley's floor-based substantive stan-dard for FAPE {Waukee Community SchoolDistrict, 2007). In the relevant part of her opin-ion, the hearing officer concluded that the dis-trict's behavioral interventions with the child, an8-year-old with autism, violated the IDEA 2004provision for PRR. This part of her decision is re-markable because she primarily relied on a wholehost of studies published in peer-reviewed jour-nals while also citing, as a responsible academi-cian, various articles in the professional literaturethat question the assumptions underlying PRR.However, several subsequent legal developrhentsmitigated the thrust of her reasoning.

First, on appeal, the federal district coutt af-firmed her decision but largely sidestepped thePRR issue by folding it into the Rowley standard{Waukee Community School District v. Douglas Z,.,2008). More specifically, the court concluded thatthe hearing officer's delineation of criteria for be-havioral interventions as substantive rights consti-tuted legal error, but that she could permissiblyconsider these factors in applying Rowley (1982).Subordinate to this conclusion, the court re-sponded to the parents' citation of the IDEA'sPRR provision with a brief footnote: "An IEPwhich relies on behavioral interventions which arenot sLipported by, or are contrary to, the relevantresearch may be such that it is not 'reasonably cal-culated' to provide an educational benefit" (p.20). Applying this merged use of PRR, the courtconcluded that the preponderance of the evi-dence, with notable reliance on expert testimony

and no citation of peer-reviewed studies, sup-ported the hearing officer's decision that the for-mulation and implementation of the behavioralinterventions fell shott of the Rowley standard.

THE ALTERNATIVE APPROACH

Second, the developments of a contemporaneoushearing officer decision in California were evenmore divergent from the Iowa hearing officer's ap-proach. The issue in the California case waswhether the district's eclectic approach, which in-cluded applied behavioral analysis (ABA), pro-vided FAPE rather than the parents' proposedABA-only method {Rocklin Unified SchoolDistrict, 2007). The California hearing officer,who is a full-time administrative law judge, up-held the district's IEP with this much more defer-ential reasoning:

If the component parts of a plan are peer-re-viewed, then it follows that the sum of thoseparts should be considered as peer-reviewedas well, particularly in light of the moral,legal and ethical constraints that prevent thetruest form of scientific study from beingconducted. The ultimate test is not the de-gree to which a methodology has been peer-reviewed, but rather, whether themethodology chosen was believed by the IEPteam to be appropriate to meet the individ-ual needs of the child, (p. 1036)

On appeal, tbe federal district court upheld thehearing officer, reasoning much more concisely asfollows:

It does not appear that Congress intendedthat the service with the greatest body of re-search be used in order to provide FAPE.Likewise there is nothing in the Act to sug-gest that the failure of a public agency toprovide services based on [PRR] would auto-matically result in a denial of FAPE. As otherNinth Circuit courts have noted, if Congressintended to modify the Rowley standard, itwould have said so. {Joshua A. v. Rocklin Uni-fied School District, 2008, p. 1142)

Next, the Ninth Circuit affirmed, with this rea-soning:

This eclectic approach, while not itself peer-reviewed, was based on "peer-reviewed re-search i:o the extent practicable." . . . We

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heed hot decide whether District made thebest decision or a correct decision, onlywhether its decision satisfied the require-ments of the IDEA." In doing so, we "mustbe careful co avoid imposing [the court's]view of preferable education methods uponthe Stace." (Joshua A. v. Rocklin UnifiedSchool District, 2009, p. 695, citing Rowley)

THE PREDOMINANT CHOICE

The subsequent lowèt court decisions predomi-nantly followed the path of the Joshua A. case(2008/2009). For example, a federal district courtsummarily rejected a parents PRR challenge tothfe IEP's writing-iristruction component, relyinginstead on the language arts coordinator's testi-mony that the provision was in accord with bestpractice and appropriate for children with learn-ing disabilities; the Thitd Circuit afFirmed by cit-ing this testimony without even mentioning PRR{Souderton Area School District v. f.H., 2009/2010). More recently, the Third Circuit expresslyaddressed PRR, following the district-deferentialapproach {G.S. v. Cranhury Township Board ofEducation, 2011). In addition, citing the lowercourt decision in Joshua A. v. Rocklin UnifiedSchool District for the conclusion that does notprohibit districts from using special educationmethods or materials that are not peer-reviewed,three federal district courts similarly denied par-ents' PRR-based FAPE claims {Board of EducationV. f.A., 2011; Ridley School District v. M.R., 2012;Stanley C. v. M.S.O. of Southwest Allen CountySchools, 2008). Other courts followed this district-deferential and non-rigorous approach in inter-preting and applying PRR (e.g., Doe v.Hampden-Wilbraham Regional School District,2010; S.M. V. State of Hawaii Department of Edu-cation, 2011). The limited exception was a federaldistrict court decision that tuled in favor of theparents based in part on the lack of evidence for"any scientific basis for the point system" {B.H. v.West Clermont Bd. of Education, 2011, p. 698) ofthe IEP's behavioral component; however, thecourt would have found a denial of FAPE regard-less of their PRR claim based on (a) prejudicialprocedural violations, including not providing theparents with ari opportunity for meaningful par-ticipation; (b) proof that the behavior componentwas incomprehensible and inconsistent; (c) the

child's behavioral regression rather than progress;and (d) deference to the hearing officer's credibil-ity determinations.

SUBORDINATION VIA JUDICIALIZATION?

Thus, PRR has not become the "lever for . . . ele-vation of the substantive standatd for FAPE"(Zirkel, 2008a, p. 409). Even ac the juncturewhen court decisions had not predominated in ei-ther direction, the hearing ofFicei- \n Waukee(2007) contributed to the peer-reviewed literaturewith tempered predictions. Although urging IEPteams to comply with not only the letter but alsothe spirit of the PRR provision (Etscheidt 0¿ Cur-ran, 20i0b), her ultimate conclusion was an accu-rate assessment of the impact on, and persistentpreeminence of the substantive standard underRowley (1982): "What has not changed with thereauthorized statute is the requirement that anIEP,' with or without research-based methods, bereasonably calculated to provide educational ben-efit" (Etscheidt & Curran, 2010a, p. 147). Theunderlying reason may be the difference betweenthe tesearch-based, best-practice perspective of thespecial education profession, as personified by theWatikee hearing officer, and thé more minimalist,precedent-based perspective of attorney adjudica-tors, as personified by the Rocklin (2007) hearingofficer. If so, the gradual trend is toward "judicial-ization"-:—that is, more formal, and cumbersome,legalization akin to court ptoceedings—of impar-tial hearings under the IDEA (Zirkel, Karanxha,& D'Angelo, 2007) and to fulí-time administra-tive law judges as hearing officers (Zirkel & Scala,2010). Indeed, Iowa recently became the lateststate to change their system of IDEA hearing offi-cers from part-time professionals with predomi-naht special education backgrounds to attorneysin a generic governmental office of fiall-time ad-ministrative law judges, thus ending Etscheidt'sadjudicative tenure.

The judicialization of IDEA hearing officers,the conservative trend of the posz-Rowley courts,and the effect of the decision-making reliance onprecedents do not augur well for either PRR orother arguments for judicial elevation of the rela-tively relaxed substantive standard of Rowley(1982). Providing analogous evidence, Zirkel's(2011) systematic analysis of the case law con-

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cetning functional behavioral assessments andBIPs found that (a) the percentage of tulings infavor of parents shifted steadjly from. 63% in theparents' favor between 1998 and 2001 to 18% in2010, and (b) fot the ovetall petiod, the court rul-ings were significantly more favorable to schooldistricts than those by heating officets.

C O N C L U D I N G A S S E S S M E N T

The focal question in Rowley (1982) fot the threedecades sjnce then concerns the operationalmeaning of FAPE. The commentators have gener-ally advocated elevating the substantive standardbeyond the Rowley Court's interpretation. How-ever, despite the Coutt's express effort to confineits ruling to Amy Rowley's particular circum-stances, disavowing an intent "to establish anyone test for determining the adequacy of educa-tional benefits conferred upon all children cov-ered by the Act" {Rowley, 1982, p. 203), the lowercourts have consistently adheted to its relativelyrelaxed substantive standard. Thus, the cornrnen-tators who relied on the prefatoty language in thesuccessive 1997 and 2004 amendments of IDEAformed a chorus that amounted to a vox clamantisin deserto. Those who additionally or alternativelyrelied on NCLB also have been unheeded voices,with further ptoblems incltiding the collectiveand narroyv academic emphasis of this legislationas starkly conttasted with the individualized andwhole-child orientation of IDEA (e.g., Zirkel,2004). Finally, Weber's (2012) reliance on thecommon law is likely to be fruitless because (a)the issue is one of statutory iriterpretation; (b) if"common law" is intended to only be used as ananalogy, Rowley did not leave the door wide openfor the lower courts; and (c) the Rowley progenyhas expanded but not elevated its substantivestandard, with the exceptions being far too lim-ited to swallow the rule.

Even more significant, the courts haveroundly rejected elevation of the substantive sideof Rowley based on the more central, IEP lan-guage in IDEA 2004 iri tetms of PRR. The non-rigorous deferential lens of the courts has beendistinctly different from the normative lens of theprofession.

In sum, thete is a glating gap between theptevailing notms of special education and the pre-vailing interpretations of the courts. Withoutcrystal-cleat and specific provisions in the legisla-tion, the courts obviously are not going to taisethe standards for FAPE. Contrary to the RowleyCoutt (1982), which provided considerableweight to legislative history in determining Con-gressional intent, the modern emphasis in judicialinterpretation for new obligations under federalstatutes that provide funding under the Constitti-tion's spending clause is on clear, unambiguouslanguage in the legislation itself Consider, for ex-ample, Arlington Central School District Board ofEducation v. Murphy (2006), in which theSupreme Court interpreted IDEA as not provid-ing for recovery of the fees of expert witnesses forparents yvho ptevailed in litigation under theIDEA, thus making it more difficult for parentsto win FAPE cases. In subordinating legislativehistoty to the unambiguous text of the IDEA, theCourt intoned: "In a Spending Clause case, thekey is not what a majority cjf the Members ofboth Houses intend but what the States areclearly told regarding the conclitions that go alongwith the acceptance of those funds" (p. 304).

It is quite clear that if the opetational mean-ing of FAPE is to change, the appropriate forumis Congress. For this purpose, the ptescriptiveproposals of the commentators have been predi-cated on one significant interest, that pf childrenwith disabilities, and their reliance on empiricalresearch has not been prominent. However, inconsidering wbether to raise the substantivestandard for FAPE, and, if so, to what extent—-meaningful benefit (per the Third Circuit), com-mensurate opportunity, self-sufficiency, ormaximization—Congress will have to considerother competing interests. One is obviously costconsiderations, given that (a) special educationaverages approximately two times the per-pupilcost of general education (Chambers, Parrish, &Harr, 2002), (b) the current political climate isfiscally "tight," (c) the previous Congressionalpromise for "full" (i.e., 40%) funding of specialeducation remains a chimera, and (d) the tesis-tance to "unfunded mandates" is increasingly in-fluential. Other competing ptiorities obviouslyinclude education mote generally, defense, healthcare, the infrastructure, and the envitonment.

Exceptional Children S O S

In assessing the countering weight of thetangible and poignant interest of students withdisabilities, as a symbol of our diverse and demo-cratic society. Congress should consider twoadditional supporting rationales that the com-mentators have not articulated. First, even if theRowley Court (1982) arrived at an enduringly justinterpretation of FAPE, its lower court progenyand—via the 2004 amendments—Congresschanged the balance by eroding the emphasis andrigor of the procedural side of its standard. As amatter of fairness, if Congress does not heightenthe substantive prong, it should tighten the proce-dural prong, removing the harmless-error languagefor procedural violations and thus putting the im-partial hearing process in synch with IDEA's com-plaint resolution process (e.g., Zirkel, 2008b).

Congress changed the balance by

eroding the emphasis and rigor of the

procedural side of [the Rowley] standard.

Second, and most significantly, 30 years ofexperience have passed since Rowley (1982). Notonly is the focus now adequacy for eligible chil-dren rather than access for excluded children, butalso special education has had the relatively well-funded and increasingly accepted opportunity tomature as a professional field. Is it not time toraise the FAPE floor accordingly? Leading schol-ars in special education recently echoed thisreasoning:

During 25 years of funding by the . . . U.S.Department of Education, special educationresearchers, often in collaboration with spe-cial education teachers, developed and vali-dated a "technology" of assessment andinstruction for the most instructionallyneedy students. . . . It is time, too, for policy-makers, administrators, advocates, and aca-demics to have high expectations of specialeducators. (Fuchs, Fuchs, & Compton,2012, p. 271)

Markers of the maturation of the special edu-cation field in recent years include the increasingemphasis on both empirical research and interre-latedness with general education, as exemplifiedby the response-to-intervention moyement, or

what IDEA refers to as "a process that determinesif the child responds to scientific, research-basedintervention" (§ I4l4[b][6]). In light of its activerole in the shaping of such other initiatives, thespecial education community needs to reverse itsrelative silence with regard to advancing the stan-dards for FAPE.

To facilitate a well-balanced answer to thefundamental FAPE question via imposing reasonon emotion, scholars and practitioners in the fieldof special education need to become more promi-nent in this policy determination. Thus far, thecommentary concerning the FAPE standard hasbeen largely absent in the special education litera-ture; the early and rather tempered assessments ofthe PRR provision serve as a minor exception. Asthe directly affected professional field, special ed-ucation rieeds to be much more active in con-tributing to prudent policy making concerningFAPE—"the central pillar of the IDEA statutorystructure" {Sytsema v. Academy School District,2008, p. 1312). For example, does research sup-port an elevated standard of FAPE? If so, .whatshould the operationally specific and—what thecourts obviously demand—unambiguously trans-parent standards on both the procedural and sub-stantive sides? What would be the practical effectsof these revisions? Now is the time for the specialeducation community to take a leading role inproviding well-informed answers.

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ABOUT THE AUTHOR

PERRY A. ZIRKEL, University Professor ofEducation and Law, College of Education, LehighUniversity, Bethlehem. Pennsylvania.

Address correspondence regarding this article toPerry A. Zirkel, College of Education, LehighUniversity, Bethlehem, PA 18105-

Manuscript received February 2012; accepted July2012.

Summer 2013

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