Academic journal article Journal of Law and Education

The Shifting Floor of Educational Opportunity: The Impact of Educational Reform on Rowley

Academic journal article Journal of Law and Education

The Shifting Floor of Educational Opportunity: The Impact of Educational Reform on Rowley

Article excerpt

The passage of the Individuals with Disabilities Education Act (IDEA) Amendments of 1997 ("1997 Amendments"),1 the passage of the No Child Left Behind Act of 2001 ("NCLB"),2 and the passage of the subsequent additional amendments to the IDEA with the Individuals with Disabilities Education Improvement Act of 2004 ("2004 Amendments") created a heightened awareness and growing debate within the United States on education reform and its relationship to the educational opportunities afforded to special education students under IDEA.3 If, during this time, there was a growing desire in the nation to improve the educational outcomes of all students attending public schools throughout the United States, did this also have an impact on the expectations of what school districts needed to provide to special education students to improve their educational outcomes? In other words, was the standard articulated by the United States Supreme Court in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley4 of requiring school districts to provide special education students with specialized instruction and related services that affords these students with a "basic floor of opportunity" still good law, or was this standard supplanted or otherwise rewritten by Congressional action?5

There are numerous articles on this subject. While some of these articles advocate for further legislative changes to effect further change of the existing Rowley standard, other articles contend that the recent legislative changes to the IDEA and/or the NCLB either supplants or rewrites the Rowley standard, and argue that subsequent state standards and educational adequacy requirements redefine the free appropriate public education ("free appropriate public education" or "FAPE") requirements set forth within the IDEA.'' Additionally, some lawyers have urged the courts to view the legislative changes to the IDEA as overriding the "basic floor of opportunity" standard the United States Supreme Court articulated in Rowley, and to instead apply a "maximum benefit" or some other heightened standard.7 These arguments have had minimal success. The Rowley standard appears to remain intact.

This article seeks to examine the impact of education reform on the Rowley standard by stepping outside the context of the IDEA. It further seeks to consider the impact of the development of Common Core State Standards in English language arts and Literacy in Hi story /Social Studies, Science & Technical Subjects ("Common Core State Standards") by the National Governors Association and the Council of Chief State School Officers, and the adoption of these Common Core State Standards by (at present count) forty-two states and United States territories. In doing so, this article will address the question of whether or not these Common Core State Standards will lead to a change in the level of adequacy of education for all students? This article also aims to consider whether the endorsement of these standards by the United States Department of Education, as reflected in the current Race to the Top Program, a United States Department of Education competitive grant program that was part of the American Recovery and Reinvestment Act of 2009 ("ARRA"),S will impact the level of adequacy of education for all students. Put simply, this article considers not only whether the "basic floor of educational opportunity" that the IDEA currently provides to special education students has shifted, but also whether the impact of a new level of adequacy in state education standards for all students will have an impact on special education students once the IDEA opens the "door" to educational opportunity. Because the IDEA's definition of a "free appropriate public education" expressly requires that special education and related services must "meet the standards of the State educational agency,"" there is a possibility that a more consistently enforced level of educational standards within the concept of FAPE will emerge. …

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