[Abstract/Intro]
"Thirty years old in 2012, Board of Education v. Rowley^ remains the Supreme Court's sole pronouncement on the meaning of the duty to provide appropriate education for children with disabilities. This duty is the central one imposed on school districts by the Individuals with Disabilities Education Act (IDEA),2 the law that governs special education services in the public schools of the United States. Rowley is known as the case that established a "some benefit" or "floor of opportunity" standard for the services school districts must provide to children who have disabilities.3 But the some-benefit approach is by no means the only one the Court could have adopted. It could have endorsed the view of the lower courts that each child with a disability must be given the opportunity to achieve his or her potential commensurate with the opportunity offered other children.4 Or it could have adopted a standard based on achievement of the child's full potential or the opportunity to become self-sufficient, or given some other meaning to the statutory term.
What this Article explores is a different possibility: that the Court not have taken the case in the first place, or simply decided it on its facts without making any grand pronouncement about the interpretation of appropriate education. The result would have been caselaw development of the statutory term's meaning in line with the evolution of the meaning of terms in other vaguely worded statutes. Scholars have labeled this a common-law approach because of its analogy to common-law development of negligence or other non-statutory legal standards.5 Under this approach, competing definitions of appropriate education may have arisen in different courts. Meanings that were never suggested in Rowley might have come forward. The proportional maximization standard urged by the lower courts in Rowley might have gained ascendancy, or it might have been rejected over a run of cases due to problems with workability or other difficulties. Only after a period of years would an observer be able to look back and see where the path of development led. Then with or without Supreme Court guidance, a clear meaning for the statutory term might emerge.
This Article lays out the reasons that a common-law approach would have been the superior one. Persuasive analogies to other statutes support it; moreover, Rowley's reasoning in reaching the some-benefit standard is highly unsatisfactory. Had a common-law approach led to proportional maximization, there would have been good justification for it, but had it led elsewhere, there might have been justification for that, too.
Of course, the Court in Rowley rejected common-law development for the appropriate education duty, and established the some-benefit test as the standard. Interestingly, however, many lower courts have marched along on something that strongly resembles a common-law road, but that cannot be given that name because of the Supreme Court's decision. This Article concludes by pointing to lower court cases that stretch the limits of the some-benefit standard and may represent the emergence of new approaches, as the traditional mode of common-law development would allow. Much has been written about Rowley, most of it critical of the case.6 But the possibility and prospects of a common-law approach to appropriate education remain undeveloped. The time for the approach just may have arrived.
Part I of this Article provides a brief introduction to IDEA and Rowley. Part II discusses common-law interpretation of statutory provisions and sketches the outlines of a common-law approach to appropriate education. Part III discusses appropriate education as proportional maximization of educational opportunity, a meaning of the term that might have received favor had the courts been given the opportunity for commonlaw development. Part IV asks whether congressional ratification of Rowley has foreclosed judicial approaches to appropriate education other than the one adopted in that case, and concludes that they remain open. Finally, Part V points to caselaw under IDEA that suggests a more sophisticated understanding of appropriate education than a narrow reading of Rowley might indicate. It contends that these cases may represent the beginnings of common-law interpretation of the concept."