On June 28, 1982, in the U.S. Supreme Court decision, Board of Education of the Hendrick Hudson Central School District, Westchester County et al., versus Rowley by her parents Rowley et ux., the court determined FAPE (Free Appropriate Public Education) to be satisfied when the IEP (Individualized Education Plan) is reasonably calculated to enable the child to receive educational benefit. Since that time the standard for progress in the IEP has been interpreted to mean “some educational progress.” In the decision, it states, “The Act’s intent was more to open the door of public education to handicapped children by means of specialized educational services than to guarantee any particular substantive level of education once inside.” However, in the sentence preceding this statement it states, “The Act’s legislative history shows that congress sought to make public education available to handicapped children, but did not intend to impose upon the States any greater substantive educational standard than is necessary to make such access to public education meaningful (emphasis added).
Since that time both the terms “some educational progress” and “meaningful progress” have been used. In DB v. Sutton, 07-cv-40191-FDS (D.Mass.2009) language included requiring that at a minimum the school district must provide students with “a meaningful, beneficial educational opportunity.” In Polk v. Central Susqehanna, 3rd Ci. 1988, “meaningful not merely trivial or ‘de mimimus’” language was used. In 1997 in Fort Zumwalt School District v. Clynes, 8th Cir., that although the court determined the IEP and progress met the FAPE standard, there was a dissenting opinion describing the child’s achievement as “trivial” and argued “this cannot be the sort of education Congress had in mind when they enacted IDEA.”
Another consideration hearing officers and courts seem to utilize in determining whether or not the child has achieved some educational progress or meaningful progress includes whether or not the child is advancing from grade to grade and/or is making passing grades regardless of whether or not the child is at grade level. For example, in Fort Zumwalt School District v. Clynes, the 8th Circuit emphasized Rowley’s “access to education” requirement and held marks advancing to the next grade, despite reading proficiency scores in the second to ninth percentile. And in the Rowley decision itself it states “The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been ‘educated’ at least to the grade level they have completed, and access to an ‘education’ for handicapped children, is precisely what Congress sought to provide in the Act.”
Due process hearings and court decisions continue to refer back to the Rowley language. It appears the amount of progress made by an individual, whether it is determined to be “some” or “meaningful” does not determine whether or not the child received FAPE. It appears districts are being held to the FAPE standard by requiring the child to receive educational benefit that is designed to meet the child’s unique needs.
