Thursday, October 13, 2011

Seligmann on Rowley

Also on SSRN, Terry Jean Seligmann has posted her paper Sliding Doors: The Rowley Decision, Interpretation of Special Education Law, and What Might Have Been, forthcoming in the Journal of Law and Education.  The abstract:

When the decision in Board of Education v. Rowley was announced in 1982, advocates for special education viewed it as a defeat for students with disabilities. But in many respects the Rowley decision supported a robust and forceful mandate at the federal level to provide special education at the state and local level. It found the statute sufficiently clear to bind the states to the standards as the Court saw them. It enshrined the individual determination of needs and services and the parent's enforcement role. And the Court refused, both in Rowley and in later decisions, to allow cost to determine appropriateness of services. This reflection, written as part of a symposium issue commemorating the thirtieth anniversary of the Rowley decision, suggests that as to each of these issues, a differently disposed Court could have taken a different tack. Had it done so, special education would not look today as it does, and advocates would have far more to lament. This essay "slides the doors" as to each of these aspects of the Rowley decision to consider how things might have been different had the Court resolved them another way. Because acknowledged shifts in the Court suggest that the pendulum has swung away from enforcement of individual entitlements in the intervening years, I suggest that Rowley deserves celebrating on its own merits for these critical elements of a strong special education law.

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