“SOME BENEFIT,” OR SOMETHING ELSE?
2011 SPECIAL EDUCATION HEARING OFFICER AND MEDIATION
TRAINING
SAN DIEGO, CALIFORNIA
MARCH 21-25, 2011
Philip T.K. Daniel, J.D., Ed.D
Ohio State University
.
NCLB/IDEA LINK?
Given the design of NCLB should the FAPE
provisions of IDEA be revised?
 NCLB specifically protects students with special
needs regarding assessments, needs, &
achievement.
 Does this presage a movement beyond “some
benefit”?

2
FREE APPROPRIATE PUBLIC EDUCATION

FAPE’s statutory definition is substantively the same as it was in 1975.
FAPE means special education and related services that:
(A)
have been provided at public expense, under public
supervision and direction, and without charge;
(B)
meet the standards of the State educational agency;
(C)
include an appropriate preschool, elementary school, or secondary
school education in the State involved; and
(D)
are provided in conformity with the individualized education
program required under section 1414(d) of this title.
20 U.S.C. § 1401(9) (2010).
3
ROWLEY DECISION
IDEA’s cryptic definition of FAPE resulted in the Supreme Court’s seminal case, Rowley,
that has provided an enduring interpretation of FAPE.
Legal Rules:
Congress sought primarily to make public education available to children with
disabilities.
Congress did not impose upon the States any greater substantive educational standard
than would be necessary to make such access meaningful.
The Act opens the door to public education, but does
not guarantee any particular level of education once
Inside.
 Act does not require school districts to maximize
potential of children with disabilities.
4
ROWLEY DECISION
Legal Rules:

“Congress sought to … identify… evaluate … & provide … access to a
free appropriate public education.”

“We therefore conclude that the ‘basic floor of opportunity’ provided
by the Act consists of access to specialized instruction and related
services which are individually designed to provide educational
benefit to the handicapped child.”

“Insofar as a State is required to provide a handicapped child with a
‘free appropriate public education,’ 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.”
5
CHEVROLET STANDARD OF EDUCATION
The oft quoted Doe v. Bd. of Educ. of
Tullahoma Schools, 9 F.3d 455, 457
(6th Cir. 1993), compares the Rowley
standard to two American cars.

The Act requires that the Tullahoma schools
provide the educational equivalent of a
serviceable Chevrolet to every handicapped
student. Appellant, however, demands that the
Tullahoma school system provide a Cadillac
solely for appellant's use. We suspect that the
Chevrolet offered to appellant is in fact a much
nicer model than that offered to the average
Tullahoma student. Be that as it may, we hold
that the Board is not required to provide a
Cadillac, and that the proposed IEP is
reasonably calculated to provide educational
benefits to appellant, and is therefore in
compliance with the requirements of the IDEA.
6
THIRD CIRCUIT: THE POLK DECISION

In 1988, the Third Circuit had occasion to
interpret FAPE and apply the Rowley standard.
 The
Rowley Court described the level of benefit conferred
by the Act as meaningful.
 Rowley was an avowedly narrow opinion that relied
significantly on the fact that Amy Rowley progressed
successfully from grade to grade in a mainstreamed
classroom. The Court self-consciously limited its opinion
to the facts before it.
 We hold that the EHA calls for more than a trivial
educational benefit. That holding rests on the Act and its
legislative history as well as interpretation of Rowley.
7
POLK CONTINUED
The EHA's sponsors stressed the importance of teaching skills that
would foster personal independence for two reasons. First, they
advocated dignity for handicapped children. Second, they stressed
the long-term financial savings of early education and assistance
for handicapped children. A chief selling point of the Act was that
although it is penny dear, it is pound wise-the expensive
individualized assistance early in life, geared toward teaching basic
life skills and self-sufficiency, eventually redounds to the benefit of
the public fiscally as these children grow to become productive
citizens
8
POLK CONTINUED
“To summarize, in our
view, the danger of the
district court's
formulation is that under
its reading of Rowley the
conferral of any benefit,
no matter how small,
could qualify as
‘appropriate education’
under the EHA.”
9
POTENTIAL
 The Third Circuit also requires that special education must be designed to provide
meaningful benefit “gauged in relation to a child’s potential.”
T.R. ex rel. N.R. v. Kingwood Township Bd. of Educ., 205 F.3d 572, 577 (3rd Cir. 2000).
10
1997 AMENDMENTS

In 1997, Congress made significant changes to
IDEA. Specifically, Congress expanded and
developed IDEA’s Purpose and put forth a welldeveloped Findings section.
11
20 U.S.C. § 1400(C) (1994).
It is the purpose of this chapter to assure that all
children with disabilities have available to them,
within the time periods specified in section
1412(2)(B) of this title, a free appropriate public
education which emphasizes special education
and related services designed to meet their unique
needs, to assure that the rights of children with
disabilities and their parents or guardians are
protected, to assist States and localities to provide
for the education of all children with disabilities,
and to assess and assure the effectiveness of
efforts to educate children with disabilities.
20 U.S.C. § 1400(D) (2000).
The purpose of the IDEA is to ensure that:
[A]ll 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;
to ensure that the rights of children with disabilities and parents
of such children are protected; and
to assist States, localities, educational service agencies, and
Federal agencies to provide for the education of all children with
disabilities;
to assist States in the implementation of a statewide,
comprehensive, coordinated, multidisciplinary, interagency
system of early intervention services for infants and toddlers
with disabilities and their families;
to ensure that educators and parents have the necessary tools
to improve educational results for children with disabilities by
supporting system improvement activities; coordinated research
and personnel preparation; coordinated technical assistance,
dissemination, and support; and technology development and
media services; and
1997 AMENDMENTS
to assess, and ensure the effectiveness of, efforts to
educate children with disabilities.
12
DEPARTMENT OF EDUCATION: A BRIEF
EXPLANATION OF THE 1997 AMENDMENTS
IDEA '97 - A Major Milestone
The IDEA Amendments of 1997 (IDEA '97) represent a major milestone in the education of
children with disabilities -- the first major revision to the Act in more than 23 years (since the
enactment of P.L. 94-142, the Education of all Handicapped Children Act of 1975).
BASIC RIGHTS RETAINED
IDEA '97 retains (and strengthens) the basic rights and protections under IDEA -- including:
the right to a free appropriate public education (FAPE) for all children with disabilities,
including children suspended or expelled from school; and
the procedural safeguards rights for these children and their parents.
EMPHASIS ON IMPROVING RESULTS
IDEA '97 provides a new and heightened emphasis on improving educational results for
children with disabilities, including provisions which ensure that these children
have meaningful access to the general curriculum through improvements to the IEP, and
are included in general education reform efforts related to accountability and high
expectations, and that focus on improved teaching and learning.
13
THE SIXTH CIRCUIT RESPONDS

Deal v. Hamilton County Bd. of Educ., 392 F.3d
840 (6th Cir. 2004).

Following a review of Polk, the Sixth Circuit court
heightened FAPE’s educational standard in
response to the 1997 amendments.
14
The following excerpt is the Sixth Circuit’s analysis of why Congress’
1997 amendments to IDEA heightened FAPE’s educational standard.
The current version of the IDEA provides further support for such sentiments. Congress explicitly found
that shortcomings of the previous act, the Education for all Handicapped Children Act of 1975, included
low expectations for disabled children and “an insufficient focus on applying replicable research on
proven methods of teaching and learning for children with disabilities.” 20 U.S.C. § 1400(a)(4). Congress
has declared that the school personnel who work with disabled children should receive high quality
professional development in order to provide such personnel with the skills necessary to “ensure that [all
disabled children] have the skills and knowledge necessary to enable them ... to be prepared to lead
productive, independent, adult lives, to the maximum extent possible.” 20 U.S.C. § 1400(a)(5)(E).
Indeed, one of the stated purposes of the IDEA is “to ensure that 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 employment and independent
living.” 20 U.S.C. § 1400(d)(1)(A) (emphasis added).
At the very least, the intent of Congress appears to have been to require a program providing a
meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a
realistic goal for a particular child. Indeed, states providing no more than some educational benefit could
not possibly hope to attain the lofty goals proclaimed by Congress. In evaluating whether an educational
benefit is meaningful, logic dictates that the benefit “must be gauged in relation to a child's potential.”
Polk, 853 F.2d at 185. Only by considering an individual child's capabilities and potentialities may a
court determine whether an educational benefit provided to that child allows for meaningful
advancement. In conducting this inquiry, courts should heed the congressional admonishment not to set
unduly low expectations for disabled children
15
SIXTH CIRCUIT DUE PROCESS HEARING DECISIONS
THAT INCORPORATE NEW STANDARD

Winton Woods City School Dist. Bd. of Educ., v.
Respondents, ODE Case No.: SE-2309-2009
(January 28, 2010).
More recently, the Sixth Circuit Court of Appeals has further refined
the definition of educational benefit under the IDEA. In Deal v.
Hamilton County Board of Education, 392 F.3d 840 (6th Cir., 2004),
the Court held that an IEP must provide meaningful educational
benefit with the ultimate goal of self-sufficiency if that is a realistic
goal for the child.
Thus, in order to determine if Student’s IEP in this case provides a
FAPE, it must be born in mind that while Petitioner is not obligated to
provide education which seeks to maximize Student’s potential, it is
obligated to provide education designed to foster Student’s
independence to the extent of her abilities.
16
SIXTH CIRCUIT DUE PROCESS HEARING DECISIONS
THAT INCORPORATE NEW STANDARD

Student v. Forest Hills Local School Dist., ODE Case No.:
SE-2262-2009 (October 6, 2009).
The District is required to provide to the Student with a
Free Appropriate Public Education (FAPE). The Supreme
Court has defined ‘Appropriate’ to mean that the IEP
must be designed to provide a ‘meaningful educational
benefit,’ Rowley, 458 U.s. at 192. This is not done if an
IEP affords the opportunity for only ‘trivial
advancement.’ An appropriate public education under
IDEA is one that is “likely to produce progress, not
regression.
17
SIXTH CIRCUIT DUE PROCESS HEARING DECISIONS
THAT INCORPORATE NEW STANDARD

Student v. Solon City School Dist., ODE Case No.:
SLR-2183-2008 (March 16, 2009).
A school district meets its obligation to provide a FAPE if it
has (a) complied with the procedural requirements of the
IDEA, and (b) developed an IEP that is reasonably
calculated to provide an educational benefit. Deal v.
Hamilton Cty. Bd. of Educ., 392 F.3d 840, 853-54 (6th Cir.
2004). In Deal, the 6th Circuit added the requirement that
an IEP must be tailored to confer a ‘meaningful education
benefit,’ but upheld the rule, first espoused in Rowley, that
school districts are not required to maximize each child’s
potential. Id. at 862. If these requirements are met, the
state has complied with the obligations imposed by
Congress and the courts can require no more.
18
THE NINTH CIRCUIT RESPONDS… MAYBE

N.B. v. Hellgate Elementary School District, 541
F.3d 1202 (9th Cir. 2008).
Under the 1997 amendments to the IDEA, a
school must provide a student with a ‘meaningful
benefit’ in order to satisfy the substantive
requirements of the IDEA. See Adams v. Oregon,
195 F.3d 1141, 1145 (9th Cir.1999) (applying the
“meaningful benefit” test); see also Deal v.
Hamilton County Bd. of Educ., 392 F.3d 840, 862
(6th Cir.2004).
19
THE NINTH CIRCUIT RESPONDS… MAYBE

Adams v. State of Oregon, 195 F.3d 1141 (9th
Cir.1999).
“IDEA and case law interpreting the statute do
not require potential maximizing services.
Instead the law requires only that the IFSP in
place be reasonably calculated to confer a
meaningful benefit on the child”
20
THE NINTH CIRCUIT RESPONDS… PROBABLY
NOT

J.L. v. Mercer Island School Dist., 592 F.3d 938
(9th Cir. 2010).
Administrative law judge interpreted FAPE claim
using Rowley standard.
 District court overturned ALJ’s analysis concluding
that Congress superseded Rowley with IDEA’s 1997
amendments.
 Circuit court reversed district court’s decision and
held that Rowley continues to set the FAPE
standard.

21
MERCER

Ninth Circuit found that after Rowley, in 1982,
Congress amended IDEA in:





1983,
1986,
1990,
and 1997.
Despite Congress’ numerous amendments to
IDEA, Congress never indicated its disapproval of
Rowley or changed the statutory definition of
FAPE.
22
MERCER

Circuit court also reasoned that:
No authority exists that suggests courts should
consider the legislative evolution of a statute when
considering Congress’ intent. Plain meaning
interpretation is the cardinal canon of statutory
interpretation, and evolutionary arguments are by
no means plain.
 This is especially true for legislation enacted by the
spending clause, where funding conditions must be
unambiguous.

23
MERCER

Finally, the district court’s argument that Congress’
findings included in the 1997 amendments, namely:




purpose of IDEA is to improve educational results for
children with disabilities;
implementation of IDEA has been impeded by low
expectations and insufficient focus on proven methods of
teaching and learning;
and third, Congress found that “[i]mproving 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 selfsufficiency for individuals with disabilities;
were vague legislative findings insufficient to supersede
the “ubiquitous” FAPE standard set forth in Rowley.
24
MERCER

The circuit court
concluded:
“Our holding is
necessary to avoid
the conclusion that
Congress abrogated
sub silentio the
Supreme Court's
decision in Rowley.”
25
CALIFORNIA DUE PROCESS HEARING DECISIONS’
RECITATION OF FAPE’S LEGAL STANDARD
 California,
through its ALJ’s, uses a
uniform recitation of FAPE’s legal
standard.
 Following
a review of Rowley, the decisions
all use the following language.
26
CALIFORNIA CONTINUED
The Ninth Circuit refers to the “some educational benefit” standard
of Rowley simply as “educational benefit.” (See, e.g., M.L. v. Fed. Way
School Dist. (2004) 394 F.3d 634.) It has also referred to the
educational benefit standard as “meaningful educational benefit.”
(N.B. v. Hellgate Elementary School Dist. (9th Cir. 2007) 541 F.3d
1202, 1212-1213. Other circuits have interpreted the standard to
mean more than trivial or “de minimis” benefit, or “at least
meaningful” benefit. (See, e.g., Houston Indep. Sch. Dist. v. Bobby R.
(5th Cir.2000) 200 F.3d 341; L.E. v. Ramsey Bd. of Educ. (3d Cir.
2006) 435 F.3d 384.) A child’s academic progress must be viewed in
light of the limitations imposed by his or her disability and must be
gauged in relation to the child’s potential. (Mrs. B. v. Milford Board of
Education (2d Cir. 1997) 103 F.3d 1114, 1121.)
27
SECOND AND FIFTH CIRCUITS
Both circuits use the term “meaningful
benefit,” but neither has indicated that the
1997 amendment’s heightened FAPE’s
educational standard.
 There is language however that supports a
conclusion that both circuits require more than
just “some benefit.”

28
SECOND CIRCUIT

Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114
(2nd Cir. 1997).
“While the Act does not authorize a court ‘to
impose a particular substantive educational
standard on the state or to require equality of
opportunity for the handicapped in education,’ . . .
a state IEP must be reasonably calculated to
provide some “meaningful” benefit. See Rowley,
458 U.S. at 192
29
MILFORD BD. OF EDUC. CONTINUED
“[T]he district court properly concluded that even though
M.M. was placed in the residential program to deal with
her emotional problems and her home-life, the state had
to fund the program because it was necessary for M.M.
to make educational progress. The evidence shows that
M.M.'s behavior was regressing and that her failure to
advance academically was due primarily to her severe
emotional problems, which could not be effectively dealt
with outside a residential setting. In the face of M.M.'s
problems, the state offered no meaningful alternative
for her. Accordingly, the defendants were obliged to pay
for the entire cost of the residential placement.”
30
FIFTH CIRCUIT

Adam J. ex rel. Robert J. v. Keller Independent
School Dist., 328 F.3d 804 (5th Cir. 2003)

The Fifth Circuit cited both Polk and Rowley in its FAPE
standard.
The IDEA ‘guarantees only a ‘basic floor of
opportunity,’ consisting of ‘specialized instruction
and related services which are individually
designed to provide educational benefit.’ This
educational benefit ‘cannot be a mere modicum
or de minimis,’ but ‘must be meaningful’ and
likely to produce progress.
31
FAPE SUMMARY
Only the Sixth and Ninth Circuits have explicitly
recognized FAPE’s 1997 amendments and
concluded that it requires a higher standard.
 But it appears that the Ninth Circuit has
recently rescinded its position.
 The First, Fourth, Seventh, Eighth, Tenth,
Eleventh and District of Columbia—exclusively
apply the "some educational benefit" standard.

32
FAPE SUMMARY



The Supreme Court has also had occasion to
review Rowley in 2005 but declined to do so.
A Ninth Circuit District court expressed doubt as to
whether or not there is any substantive difference
between the “some benefit” or “meaningful”
benefit standards.
Many researchers respond that there is no
substantive difference between the two because
they both have their roots in Rowley and the terms
appear to be used interchangeably.
33
NO CHILD LEFT BEHIND & THE IDEA


NCLB is a national results-based education
program that set forth high standards of
achievement measured by assessment
instruments to determine if students are
adequately progressing.
NCLB applies to disabled students and given
NCLB’s focus on standards and educational
adequacy requirements, it is argued that Rowley
and the ‘some benefit’ language no longer
accurately reflect the FAPE requirements of the
IDEA.
34
NCLB & IDEA

Leighty v. Laurel School Dist., 457 F.Supp.2d
546 (W.D. Pa. 2006).

Parents argued that NCLB heightened FAPE’s
educational standard.
35
LEIGHTY


IDEA and NCLB were enacted through Congress’
authority under the spending clause. When Congress
attaches conditions to the acceptance of federal funds,
the conditions must be set forth unambiguously. This is
similar to a contractual arrangement. States are only
bound when they accept conditions voluntarily and
knowingly.
The statutory language regarding the coordination of
state plans clearly does not constitute an unambiguous
change in the conditions imposed on recipient States by
the IDEA. The NCLBA contains no specific language
purporting to alter IDEA's FAPE and IEP requirements.
36
LEIGHTY

Since no reasonable state official would clearly
understand that, by accepting IDEA funds, a State is
obligated to provide FAPE's and IEP's specifically
designed to increase the scores of disabled children on
standardized assessments mandated by the NCLB, the
Leightys' argument must fail.

The fact that disabled children must be included in
NCLB testing is not an unambiguous change in IDEA’s
FAPE and IEP requirements. NCLB does not require FAPE
determinations to be based on results of assessments.
37
LEIGHTY

The assessments required under NCLB, however, can be
considered as one factor in the broader inquiry as to
whether a given disabled child's education is
meaningful. The Court does not mean to suggest that
the results of standardized tests are irrelevant to the
FAPE and IEP inquiries. “Rowley and Polk reject a brightline rule on the amount of benefit required of an
appropriate IEP in favor of an approach requiring a
student-by-student analysis that carefully considers the
student's individual abilities.”
38
NCLB & IDEA

School Bd. of Lee County, Florida v. M.M., 2007 WL 983274,
4 (M.D.Fla., 2007).

Parents wanted heightened FAPE educational standard as a result of NCLB.
“Given the well-established nature of the federal standard, an intent to
impose an enhanced requirement for IDEA purposes would have been
more clearly stated. Plaintiff has not cited any case, nor has the Court
found one, which held there is a requirement in Florida that education
must be maximized in the IDEA context. The case of Bush v. Holmes, 919
So.2d 392 (Fla. 2006) traced the history of Florida education articles
and does not discuss the IDEA, and specifically cautions that its decision
concerning the opportunity scholarship program would not necessarily
affect other programs, such as those for exceptional students. Indeed, a
recent Florida appellate decision continues to apply the Rowley standard,
including prior Florida precedent that there is no requirement to
maximize each child's potential.”
39
NCLB & IDEA

Kirby v. Cabell County Bd. of Educ., 2006 WL 2691435 (S.D.W.Va., 2006)
The plaintiffs contend that the No Child Left Behind Act imposes
additional obligations on the District in regards to the level of educational
benefit required by the IDEA. While the statutory language . . . requires
that state plans are coordinated with the IDEA along with other programs
under Title 20 . . . there is no language in the Act that places additional
obligations on the development or assessment of a child's IEP. Rather, §
6311 places responsibility on the state to adopt ‘challenging academic
content standards and challenging student academic achievement
standards’ to carry out the state's plan under the Act. The obligations
contained in the section referenced by the plaintiffs are placed on the
state in regards to all students. It does not contain specific obligations to
children with disabilities nor does it alter the Court's standard of review
in regards to the IEP in question.
40
IS NCLB GOOD FOR DISABLED CHILDREN?

A minority says yes
Requires higher academic standards for all
students, including children with disabilities and
schools are accountable for their achievement
 Encourages greater inclusion of disabled students
in the general education classroom and promotes
high expectations in core subject matter

41
IS NCLB GOOD FOR DISABLED CHILDREN?

The majority says no
Threatens child-specific rights provided under IDEA,
Emphasis on state-wide testing will corrode
individual consideration
 Too much emphasis on tests and test subjects,
schools will neglect broader range of life skills and
knowledge
 Test anxiety
 Community Backlash

42
IS IDEA’S SUBSTANTIVE STANDARD CHANGING?
SOME CONSIDERATIONS

U.S. Office of Education, Office of Civil Rights
Opinion,
http://www.ed.gov/about/offices/list/ocr/letters/colleague20071226.html

Opinion responded to a report that some school
districts refused to permit qualified students with
disabilities to participate in accelerated and gifted and
talented academic programs or that schools
conditioned participation in such programs on the
abandonment of special education and related
services.
43
U.S. OFFICE OF EDUCATION, OFFICE OF CIVIL
RIGHTS OPINION

The Office of Civil rights concluded that such
practices violated:
I.
II.
III.
Section 504 of the Rehabilitation Act of 1973;
Title II of the Americans with Disabilities Act;
and the Individuals with Disabilities Improvement
Act.
44
U.S. OFFICE OF EDUCATION, OFFICE OF CIVIL
RIGHTS OPINION

Specifically with regard to FAPE, if participation in an
accelerated class or program is part of the regular education
referenced in Section 504 or the IDEA regulations, then a
qualified student with disabilities is entitled to support while
participating in the program and cannot be denied special
education and related services as a result of the child’s
advanced placement.

OCR gave the following example: If a student's IEP or plan under
Section 504 provides for Braille materials in order to participate
in the regular education program, and she enrolls in an
accelerated or advanced history class, then she also must
receive Braille materials for that class. The same would be true
for other needed related aids and services such as extended
time on tests or the use of a computer to take notes.
45
A REGULAR EDUCATION DIPLOMA
IDEA, 34 C.F.R. § 300.102(a)(1)(iv) – “the term regular high school diploma
does not include an alternative degree that is not fully aligned with the
State’s academic standards, such as a certificate or a general educational
development credential (GED).”

Hence, the implication is that an otherwise eligible student with a
disability who has acquired a GED, but not a regular high school diploma is
not excluded from services under IDEA.

Barnett v. Memphis City Schs., 2004 WL 2452542 (6th Cir. 2004).
Parents not provided with full record of assessments and student showed
little achievement toward IEP goals; he, nevertheless received a GED
degree. Ruling: 34 C.F.R. §102(a)(3)(i). High school graduation will only
terminate a student’s eligibility under IDEA if a regular education diploma is
received.
46
HIGHLY QUALIFIED TEACHERS
(HQT) – IDEA incorporates the NCLB provisions for all
HQT’s. These include a bachelor’s degree, subject
matter competence, full certification (including those
through alternate routes) or the passage of a state
licensing examination. The license cannot be waived on
an emergency, temporary, or provisional basis.
47
RENEE V. DUNCAN
623 F.3d 787 (9th Cir. 2010) – students, parents, and community organizations
brought an Administrative Procedure Act challenge against the U.S.
Department of Education claiming that federal regulations permitting teachers
in alternative route programs for certification, but not yet certified, could not be
considered Highly Qualified Teachers as this was inconsistent with the wording
of No Child Left Behind. The concern was that these interns who were
progressing toward licensure would disproportionately populate the teacher
ranks in minority and low-income schools. The court determined that the
federal statute 34 C.F.R. § 200.56(a)(2)(ii) was invalid as the statute, 20 U.S.C.
§ 7801(23) requires the awarding of full certification, not, as evidenced in the
regulations, “demonstrates satisfactory progress toward” certification. As a
result of the decision the California HQT regulations that followed the federal
statute were also declared invalid. Cal. Code Regs. tit. 5, 6101(2), 6110(2).
The decision did not address the meaning of full state certification, preserving
the authority of states to continue to set those standards.
48
AMERICANS WITH DISABILITIES ACT: 2008
AMENDMENTS


On September 25, 2008, the President signed the
Americans with Disabilities Act Amendments Act of 2008.
The Act emphasizes that the definition of disability should be
construed in favor of broad coverage of individuals to the
maximum extent permitted by the terms of the ADA and
generally shall not require extensive analysis.
The Act makes important changes to the definition of the
term "disability" by rejecting the holdings in several Supreme
Court decisions and portions of EEOC's ADA regulations. The
effect of these changes is to make it easier for an individual
seeking protection under the ADA to establish that he or she
has a disability within the meaning of the ADA.
49
AMERICANS WITH DISABILITIES ACT AND
PRIVATE EDUCATION


Private entities, including private schools, are “public
accommodations” within the purpose of the ADA if
they affect commerce.
The Justice Department recently reached a
settlement with Noble Learning Communities Inc.
(Noble)—a for-profit entity that operates more than
180 preschools, elementary schools and
postsecondary schools in fifteen states and the
District of Columbia—to enforce the ADA. The Justice
Department alleged that Noble violated Title III of the
ADA by excluding disabled children from its programs.
Assistant Attorney General Thomas E. Perez declared:
50
AMERICANS WITH DISABILITIES ACT AND
PRIVATE EDUCATION
“It is illegal under the ADA to discriminate
against children with disabilities. Just like
public schools, private schools must make
reasonable modifications of policies to permit
children with disabilities to participate fully in
the programs they offer . . . This agreement
ensures that children will not be denied quality
preschool and other educational opportunities
based upon their disabilities.”
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AMERICANS WITH DISABILITIES ACT AND
PRIVATE EDUCATION

Key provisions of the Settlement Agreement include the following:

Noble will adopt and implement policies that ensure it will operate in compliance with Title III of the
ADA.

Noble will publicize its policy to its staff and make it available on its website and to any person upon
request.

Noble will pay $215,000 to the children referred to in the complaint.

Consistent with the ADA, Noble will not make unnecessary inquiries into the existence of a disability or
apply criteria that screens out students from its services.

Noble will engage in processes to consider requests from students and parents for reasonable
modifications that enable students with disabilities to enjoy Noble services unless Noble can show
that the requested modifications fundamentally alter the nature of the services, goods, facilities, or
accommodations at issue.

Noble will designate a compliance officer to ensure Noble is following the ADA and to work with
students with disabilities. Noble’s regional executives and principals will engage in training to
understand their responsibilities under the ADA. Noble will report back to the Department of Justice at
12 and 18 months to communicate its progress under the Settlement Agreement.
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THE FUTURE?

President Obama’s Blueprint
While the primary funding for programs specifically focused on
supporting students with disabilities is through the Individuals
with Disabilities Education Act, our ESEA reauthorization proposal
will increase support for the inclusion and improved outcomes of
students with disabilities. Our proposal will help ensure that
teachers and leaders are better prepared to meet the needs of
diverse learners, that assessments more accurately and
appropriately measure the performance of students with
disabilities, and that more districts and schools implement highquality, state- and locally-determined curricula and instructional
supports that incorporate the principles of universal design for
learning to meet all students’ needs.
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PRESIDENT OBAMA’S BLUEPRINT
Schools, districts, and states must be held responsible
for educating all students, including English Learners
and students with disabilities, to high standards, but
more work could be done to develop and scale up
effective strategies for these students. Priority may be
given to programs, projects, or strategies that are
designed to specifically improve the performance of
English Learners or students with disabilities.

Is this language any stronger than the language
Congress used in its 1997 amendments to IDEA?
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SHOULD IDEA’S SUBSTANTIVE STANDARD
CHANGE?
How does IDEA and NCLB compare relative to
benefits for student?
 What are the legislative models?
 What are the goals?

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IDEA/NCLB COMPARISON
IDEA
 Equal educ. opportunity
 “level playing field”
model involving extra
assistance, individual
studs., acknowledging
different levels of ability
that might affect
educational and life
outcomes;
NCLB
 Equal educ. opportunity
 “minimal achievement”
model requiring school
districts to demonstrate
school improvement
through assessments
whereby all students
reach some minimal
level of achievement ;
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IDEA/NCLB COMPARISON CONT.
N CLB
IDEA

Focus – individualized student gains commensurate with
their abilities

Goal – to ensure that all individual students with
disabilities have available to them a FAPE that
emphasizes special education and related services
designed to meet their unique needs and prepare them
for further education, employment and independent
living; as of 2004 this requires performance goals and
indicators

Enforcement – 1) parents have significant role as
members of IEP team: 2) may bring due process
complaint if school district is not providing FAPE

Guarantee – a free appropriate public education in the
form of special education and related services devised
to meet a student’s unique needs in the least restrictive
environment and access to the general curriculum; IDEA
does not require the same level achievement for all
students. It also does not guarantee a certain outcome

Focus – school level accountability to demonstrate some
minimal level of overall student achievement

Goal – to ensure that all students have an equal
opportunity to obtain a quality education through some
state determined minimum proficiency standards

Enforcement – sanctions against the school: 1) the school
improvement model is used where parents must be
notified of school choice; 2) supplemental services like
tutoring; 3) corrective action whereby changes are made
such as replacing some staff or curriculum or both; 4)
restructuring requiring alternative governance structures
such as replacing all staff and/or hiring a management
company to turn the school around; NO ENFORCEABLE
RIGHTS AND NO FEDERAL OPPORTUNITIES TO
INDIVIDUALLY REDRESS GRIEVANCES

Guarantee – None. No individual student right to attain an
assessment score that is proficient. Students are only
seen as part of a group and the scores reported are
aggregates
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