Attack on the Eha: the Education for All Handicapped Children Act After Board of Education v. Rowley

• Jurisdiction: United States,Federal
• Citation: Vol. 7 No. 01
• Publication year: 1983

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 1FALL 1983

Attack on the EHA: The Education for All Handicapped Children Act After Board of Education v. Rowley

I. Introduction

Americans value education. We regard it as essential for success in our society. The stability of our political institutions depends on citizens who are educated so that they may exercise their rights effectively.(fn1) In recognition of this, every state in the Union operates a public school system. Although the Supreme Court has not held that education is a fundamental right, the Court has said that if a state assumes the responsibility for educating some children, then it must make the opportunity of education available to all.(fn2) Until recently, however, handicapped children were completely excluded from our schools.

Prior to 1975, educational opportunities for handicapped children were haphazard, and, more often, nonexistent.(fn3) Congress tried to assist the States,(fn4) but these efforts proved unsatisfactory.(fn5) To help the States respond more effectively,(fn6) Congress passed the Education For All Handicapped Children Act of 1975(fn7) (EHA) to assure that every handicapped child(fn8) received a "free appropriate public education."(fn9) What exactly Congress meant by this phrase(fn10) has generated considerable debate.

Congress clearly stated, however, that a child's Individualized Education Program(fn11) (IEP) was the cornerstone (fn12) of a free appropriate public education. The EHA mandated active parental involvement with the child's teacher and school district in developing a comprehensive written plan of educational goals, services, and regular evaluation for each child. The ongoing IEP process was designed to manifest what Congress regarded as a fundamental tenet: "[e]ach child requires an educational plan that is tailored to achieve his or her maximum potential."(fn13) Unfortunately, other Congressional statements conflicted with such ambitious pronouncements and Congress failed to specify the exact standard of education that States were expected to provide. States such as Washington developed their own educational standard(fn14) which substantially avoided the rigors of the IEP process.

The EHA legislative history indicates that Congress intended a standard of education which would give handicapped children an educational opportunity equal to that provided non-handicapped children.(fn15) Lower federal courts interpreting the EHA developed three different standards, each building on the goal of equal educational opportunity,(fn16) but no definitive standard has emerged. In its first decision addressing the issue, Board of Education v. Rowley(fn17) ("Rowley"), the Supreme Court struck down an equal educational opportunity standard developed by the two lower federal courts;(fn18) this standard had struck a balance between providing no education at all and the unrealistic goal of maximizing the potential of each child. The Rowley Court instead adopted a standard based on educational benefit.(fn19) The minimal requirements of the educational benefit standard severely restrict the effectiveness of the EHA. Under this nebulous standard, nearly any state program for a given handicapped child will suffice; consequently, handicapped children will be denied the education Congress intended for them under the EHA. As if this were not enough, however, the Rowley Court destroyed a major component of the procedural safeguards in the EHA by which parents could demand an equal educational opportunity for their child.

In order to qualify for EHA funds,(fn20) the States must provide administrative review procedures so that a child's parents can challenge the IEP.(fn21) A parent dissatisfied with the school district's decision regarding the child's educational program can appeal administratively. Under the EHA, if still dissatisfied, a parent could bring a de novo action in state or federal court seeking appropriate relief.(fn22) In Washington, however, the state review officer for the Superintendent of Public Instruction in four administrative decisions(fn23) developed a set of presumptions(fn24) that effectively exclude many administrative appeals by parents. The Rowley Court had the opportunity to reverse such state erosions of the EHA. Unfortunately, the Court ratified and encouraged such attacks. The Court's educational benefit standard(fn25) demands as little as Washington's "suitable education" standard.(fn26) The Rowley Court suggested a way to sidestep the IEP process(fn27) which is similar to Washington's avoidance method.(fn28) Finally, the Court eliminated judicial review of state administrative decisions regarding educational standards and the educational programs of handicapped children.(fn29) The Rowley Court justified this elimination by claiming that parental ardor and participation in the IEP process were sufficient remaining safeguards for handicapped children.(fn30) However, effective exclusion of many appeals at the local hearing level, because of administrative presumptions marshalled against parents, render those safeguards meaningless.(fn31) This Comment asserts that state attacks on the EHA, combined with the Rowley Court's adoption of a minimal educational benefit standard and elimination of judicial review, have eviscerated the EHA which can only be resurrected by Congressional intervention.

II. The Rowley Decision

Amy Rowley was a highly motivated, intelligent, eight year old deaf girl.(fn32) The district drafted Amy's IEP, as the EHA requires,(fn33) in the fall of her first grade.(fn34) Her parents participated but were not satisfied with the results. The district's Committee on the Handicapped(fn35) (COH) began Amy's IEP process by developing a recommendation for Amy's school. Although Amy's parents had presented expert testimony(fn36) that Amy needed a sign language interpreter,(fn37) the COH's recommendation did not include an interpreter.(fn38) The COH did, however, recommend that Amy's IEP include a hearing aid, a tutor and a speech therapist.(fn39) Using this recommendation, Amy's teacher drafted the IEP.(fn40) Her parents assented to the IEP except for the failure to provide for a sign language interpreter. The IEP was returned to the COH for review, which affirmed its first recommendation.(fn41) The Rowleys demanded a hearing before an independent hearing officer who ruled against them,(fn42) as did the New York Commissioner of Education on appeal.(fn43)

The Rowleys then filed suit in federal district court(fn44) charging that Amy was not receiving a free appropriate public education. The District Court and Court of Appeals(fn45) agreed with the Rowleys. The standard of education required under the EHA, both courts stated, is one that gives "each handicapped child ... an opportunity to achieve his full potential commensurate with the opportunity provided to other (nonhandicapped) children."(fn46) Applying this standard, the courts held that providing Amy with a free appropriate public education required a sign language interpreter for her academic classes.(fn47)

The school district's appeal to the United States Supreme Court presented the Court with its first opportunity to interpret the EHA. The Court held that a state satisfies the requirement of a free appropriate public education for a handicapped child if it "provide [s] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"(fn48) (emphasis added). Writing for the majority,(fn49) Justice Rehnquist rejected the standard enuciated by the two courts below.(fn50) The Court supported its holding by finding that the legislative history of the EHA "do[es] not imply a congressional intent to achieve strict equality of opportunity"(fn51) for handicapped children. The Court found that Congress, by enacting the EHA, sought primarily to provide access to education for handicapped children as opposed to an equal educational opportunity. Therefore, the Court reasoned, Congress imposed no greater educational standard upon the states than would make such access meaningful.(fn52)

Justice Rehnquist claimed support for this proposition from three sources: (1) principles established in the two major federal handicapped education rights cases, Mills v. Board of Education(fn53) and Pennsylvania Association of Retarded Children v. Commonwealth(fn54) (P.A.R.C), both discussed in the Congressional committee reports;(fn55) (2) statements in the legislative history by senators and congressmen;(fn56) and (3) statements and tables in the committee reports describing the scope of the problem for handicapped children in 1975.(fn57) These sources, however, do not adequately explain the Court's rejection of the equal educational opportunity standard. Arguably, each source supports the conclusion the Court rejected.

The Mills and P.A.R.C. cases were explicitly referred to in the Senate and House committee reports on the EHA. The reports also make reference to Brown v. Board of Education.(fn58) Together, these cases propound the principle of equal educational opportunity for handicapped children. The Senate Labor and Public Welfare Committee (the Senate Committee), reviewing federal cases that led to the EHA, stated that in Brown the Supreme Court established the principle of educational opportunity.(fn59) The Senate Committee...