I.          Overview
              
            A.        Terminology

The federal law governing special education is called the Individuals with Disabilities Education Act, or IDEA.  It is codified in Title 20, United States Code, starting at section 1401.  It was initially passed in 1975.  A number of major reauthorizations have taken place.  The two most recent were in 1997 and in December 2004.  The December 2004 changes take effect, for the most part, on July 1, 2005.  We will try to be clear as to whether we are referring to IDEA 1997 or IDEA 2004.  The changes between the two versions are numerous and varied, but perhaps not revolutionary.

In early 2002, President Bush signed the No Child Left Behind Act (NCLB) which is intended to ensure quality education and a high level of accountability.  Many of the provisions of NCLB had an uncertain impact on IDEA 1997.  Hence, IDEA 2004 attempts to clarify the impact of NCLB.

The IDEA speaks in terms of a State Education Authority (SEA) and a Local Education Authority (LEA).  In Connecticut, the SEA is the State Department of Education.  The LEA is generally the local school district, which is referred to as the district or the Board.  In this context, the Board refers to the district’s administration, not to the actual Board of Education and its elected members.

            B.        State and Federal Law
Connecticut passed its special education law in 1967.  The federal Education of All Handicapped Children Act initially passed in 1975.  Hence, the Connecticut act predates the federal.  The federal law did not pre-empt the field.  Rather, federal courts can enforce both federal and relevant state law.  "Relevant state law" is law which is not inconsistent with federally mandated requirements, both substantive and procedural, of the Act, and includes, inter alia, procedural safeguards which are more stringent than required procedures set forth in the federal law.  Burlington v. Department of Education, 736 F.2d 773 (1st Cir. 1984), aff’d 471 U.S. 359 (1985).  For the most part, Connecticut and federal requirements have converged.  Yet, most of the detailed procedures for eligibility and due process stem from Connecticut law, as does the nomenclature.  In Connecticut, there is a Planning and Placement Team (PPT) meeting.  In New York, it is called a Committee on Special Education (CSE) meeting.  In the federal law, it is called an Individualized Education Plan Team (IEP Team) meeting. 

            C.         The Connecticut Approach
The Connecticut State Department of Education (SDE) takes a hand-off approach to local school boards.  This compares to New York, where the state department closely regulates most aspects of special education.  The Connecticut SDE advises local school boards on questions, when raised.  Indeed, SDE also provides advice to parents.  The state approves private special education schools, but the approval is largely a matter of seeing if the right boxes are checked, rather than looking at the quality of the education provided.  The state, pursuant to federal law, receives and processes complaints, but appears to be interested only in procedural requirements, avoiding making any comments on the substance of the claim.  And, the state runs the due process and mediation systems.  This is all done by a tiny group of people in Hartford.  The SDE also runs the Special Education Resource Center (SERC), which serves as an information clearinghouse, library, and training center.  As a general rule, the State Department of Education sees itself as a consultant, rather than as a regulator. 

           D.        The Special Education Universe in Connecticut
For the 2002-2003 school year, there were 74,177 children in Connecticut who were designated as eligible for special education services.  This represented about 13% of the total student population of 574,572.  Districts vary widely in percentages designated as eligible for special education, with some districts near 8% and others near 20%. 
Among disabilities, the largest group, comprising 38% of the special education population, consists of students with learning disabilities (LD).  The next largest group, accounting for 21% of the special education population, contains students with speech or language impairments.  Other health impairment (OHI) accounts for 13%, severe emotional disturbance (SED) is 10% and intellectual disabilities (ID) are 5%.  The racial differences are, however, significant.  The following chart shows the 2002-2003 percentage of each racial/ethnic grouping that has a particular special education designation. 

           E.         History and Purpose
                      As noted, Congress passed the Education of All Handicapped Children Act (EAHC) in 1975, P.L. 94-142.  In order to qualify for federal financial assistance under the EAHC, a State must demonstrate that it “has in effect a policy that assures that all handicapped children the right to a free appropriate public education.”  20 U.S.C. §1412(1) (1975).  As with all complicated concepts of federal law, this right became an anagram: FAPE.  Just as Rabbi Hillel, when asked to explain the entire Torah while standing on one foot, responded, “What is hateful to you, do not do unto others.  All the rest is only an explanation of that. Go, go, my son. Go and study it," special education law can be similarly explained.  Children with disabilities have the right to FAPE.  All the rest is only an explanation of that.  Go and study it.

If it were only that easy, most of us in this room might be unemployed.  Unfortunately the meaning of the phrase “free appropriate public education” is not transparent.  Rather, Congress, the courts, educators, administrators and lawyers have debated, proclaimed, misunderstood, and watched the evolution of FAPE.

The story of FAPE really starts with Amy Rowley, a hearing impaired, very bright eight-year old lady in 1980.  Incidentally, Amy graduated Gallaudet University with a B.A. in Biology in 1995.  Subsequently, she received a M.S. in Deaf Education from Western Maryland and is currently a Ph.D. student in Urban Education and Second Language Education at the University of Wisconsin-Milwaukee. She is the Program Director for the American Sign Language [ASL] Program at the university, and was instrumental in the establishment of a Major in ASL Studies, Minor in ASL Studies, and a Teacher’s Certification Program in Teaching ASL as a Foreign Language.  So, despite her treatment at the Furnace Woods School in the Hendrick Hudson Central School District of New York and by the United States Supreme Court, Ms. Rowley has apparently done well for herself.

Amy’s parents, Clifford and Nancy are both deaf.  Soon after Amy was born, her parents learned that she was largely without hearing.  She did have residual hearing in lower frequencies, where vowel sounds are distinguished.  Because vowel sounds are much harder to lip read than are consonant sounds, this residual hearing gave her a particular advantage.  She was raised on a Total Communication system which emphasized communicating with the deaf person by simultaneously mouthing words and signing them.  Due to this Total Communication work, Amy entered school with a much better ability to communicate and receive information and to establish social contact than most deaf children. 

Prior to entering Furnace Woods School, the parents met with the principal.  The school responded well to the challenge of a deaf student.  A number of administrators and teachers took a mini-course in sign language.  A teletype phone was installed in the principal’s office.  Early in kindergarten, Amy was provided with an FM wireless hearing aid.  In February of her kindergarten year, a sign language interpreter was placed in Amy’s class for a two week trial.  At the end of the trial, the interpreter wrote a report saying he was not needed.  His conclusion was based on the extraordinary sensitivity of Amy’s teacher and Amy’s resistance to interpretive services.  The interpreter was clear that his recommendation was strictly limited to the particular kindergarten class.

In the fall of Amy’s first grade year, the Committee on the Handicapped (COH) met to plan a program for Amy’s first grade school year.  The COH recommended continued use of the FM system, one hour a day of a tutor for the deaf, and three hours a week of speech therapy.  The parents requested and the COH refused to provide a sign language interpreter for Amy’s academic classes.  The parents sought a due process hearing, which they lost.  They went to federal court.
The judge, Vincent L. Broderick struggled with the meaning of the term “appropriate education”.  He said:
An “appropriate education” could mean an “adequate” education that is, an education substantial enough to facilitate a child's progress from one grade to another and to enable him or her to earn a high school diploma. An “appropriate education” could also mean one which enables the handicapped child to achieve his or her full potential. Between those two extremes, however, is a standard which I conclude is more in keeping with the regulations, with the Equal Protection decisions which motivated the passage of the Act, and with common sense. This standard would require that each handicapped child be given an opportunity to achieve his full potential commensurate with the opportunity provided to other children. Since some handicapped children will undoubtedly have the intellectual ability to do better than merely progress from grade to grade, this standard requires something more than the “adequate” education described above. On the other hand, since even the best public schools lack the resources to enable every child to achieve his full potential, the standard would not require them to go so far.

Rowely v. Board of Education, 483 F.Supp. 528, 534 (S.D.N.Y. 1980).  Utilizing this standard and surveying Amy’s abilities and limitations, Judge Broderick found that “Amy’s academic education would be more ‘appropriate’ with than without an interpreter.”  483 F.Supp. at 536.

The Board appealed to the Second Circuit which affirmed the decision of Judge Broderick.  632 F.2d 945 (2d Cir. 1980).  Judge Mansfield, however, dissented.  First, he argued that “the scope and range of an appropriate education is left primarily to the states, which are given broad authority to prescribe the details of educational policy.”  632 F.2d at 951.  Second, Judge Mansfield faulted Judge Broderick for inappropriately borrowing a legal standard from the Rehabilitation Act to determine appropriateness under EAHCA.  Judge Mansfield made clear that “Congress was simply concerned with insuring that handicapped children would become independent, productive citizens rather than that their potential be compared with those of the non-handicapped.”  632 F.2d at 952.  Because Amy was performing academically above the median of her class, Judge Mansfield concluded that she would become a productive member of society.  Therefore, he thought the case should be dismissed.  “But if doubt on that score existed, the proper procedure here, where there is substantial evidence pointing in different directions on the issue of whether Amy needed a sign language interpreter, was for the district court to remand her case to the state educational authorities for findings and conclusions based on application of the correct standard. … The rational of this procedure is obvious: the state educational personnel have far more experience and greater expertise in this difficult area than does a district court.”  632 F.2d at 953. 

This set up a clear conflict for the Supreme Court to address in Board of Education v. Rowley, 458 U.S. 176 (1982).  Then Justice Rehnquist wrote the decision of the court.  Justice Blackmun concurred in the result.  And, Judges White, Brennan and Marshall dissented.  The Court’s decision first discussed the history of the law.  Congress had originally provided funding to promote the education of children with disabilities.  Dissatisfied with the progress made under the funding schemes, Congress, in 1975, tied the funding to state plans “which describe in detail the goals, programs and timetables under which the State intends to educate handicapped children within its borders.”  458 U.S. at 181. 

The Court said that the law did expressly define the term “free appropriate public education” to mean (A) provided at public expense and under public supervision; (B) meeting the standard of the State educational agency; (C) including appropriate preschool, elementary and secondary school education; and (D) in conformity to an individualized education plan.  20 U.S.C. §1401(18) (1980).  Yet, “Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent.”  458 U.S. at 188.  Reading the statute as a whole, the Court found “the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child.”  458 U.S. at 189.  “Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded to handicapped children.”  Rejecting Judge Broderick’s formulation, the Court said, “Certainly the language of the statute contains no requirement like the one imposed by the lower courts – that States maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.”  548 U.S. at 190.

The Court then traced the legislative history of the Act, relying on the twin cases of Pennsylvania Association for Retarded Children v. Commonwealth, 334 F.Supp. 1257 (E.D. Pa, 1971) and Mills v. Board of Education, 348 F.Supp. 866 (D.C. 1972), which were both cases to end the exclusion of handicapped children from public schools.  “Neither case purports to require any particular substantive level of education.  Rather, like the language of the Act, the cases set forth extensive procedures to be followed in formulating personalized educational programs for handicapped children.  The fact that both PARC and Mills are discussed at length in the legislative Reports suggests that the principles which they established are the principles which, to a significant extent, guided the drafters of the Act.”  458 U.S. at 193-94. 
Also, the Court argued, the Broderick standard would be unworkable. 

The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student’s ability to assimilate information presented in the classroom.  The requirement that States provide “equal” educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons.  Similarly, furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of “free appropriate public education”: to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go.

458 U.S. at 198-99.
The Court concluded 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.”  458 U.S. 201.  “It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. …  We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.”  458 U.S. at 202.  But then, in a particularly baffling paragraph, the Court seemed to suggest that for a disabled student in the mainstream classes, passing grades are enough to indicate adequate educational benefits.  Indeed, in footnote 25, the court said, “We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a ‘free appropriate public education.’  In this case, however, we find Amy’s academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods school administrators, to be dispositive.”  458 U.S. at 203. 

The Board argued further that the courts were afforded limited authority to review compliance with the procedures under the Act and no authority to review state educational decisions and policies.  The court rejected this view, but remarked,
It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process as it did upon the measurement of the resulting IEP against a substantive standard.  We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.

458 U.S. at 205.  Therefore, the Court said, the court addresses two questions: did the State comply with the Act’s procedural requirements? And, is the IEP developed reasonably calculated to enable the child to receive educational benefits?  458 U.S. at 206-07.  Again, in footnote 28, the Court said, “When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit.” 

Finally, the Court deferred to the expertise of the States, saying, “It seems highly unlikely that Congress intended to overturn a State’s choice of appropriate educational theories in a proceeding [under the EAHCA]. … Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.”  458 U.S. at 207-08.

Concurring, Justice Blackmun said the Court’s test, i.e. whether Amy’s education program was reasonably calculated to enable her to receive educational benefit measured in part by whether she achieved passing grades and advanced from grade to grade, was another example of interpreting a congressional enactment as “merely setting out politically self-serving language about what the [disabled] deserve at the hands of the state.”  Rather, Justice Blackmun thought the test should be “whether Amy’s program, viewed as a whole, offered her an opportunity to understand and participate in the classroom that was substantially equal to that giver her nonhandicapped classmates.  This is a standard predicated on equal educational opportunity and equal access to the educational process, rather than upon Amy’s achievement of any particular educational outcome.”  458 U.S. at 211. 

In dissent, Justice White, joined by Justices Brennan and Marshall, said “the majority opinion contradicts itself, the language of the statute and legislative history.”  458 U.S. at 212.  Justice White said the majority’s standard fell far short of what Congress intended.  “It would apparently satisfy the Court’s standard of ‘access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child’ for a deaf child such as Amy to be given a teacher with a loud voice, for she would benefit from that service.”  458 U.S. at 215.  Rather, the dissenters said, “The basic floor of opportunity is instead, as the courts below recognized, intended to eliminate the effects of the handicap, at least to the extent that the child will be given an equal opportunity to learn if that is reasonably possible.” Id. 
As for the two-pronged test of appropriateness, the dissenters said that Congress intended the courts to conduct a far more searching inquiry.  Quoting from the amicus curiae brief of the United States, the dissenters said, “courts called upon to review the content of an IEP … inevitably are required to make a judgment, on the basis of the evidence presented, concerning whether the education methods proposed by the local school district are ‘appropriate’ for the handicapped child involved.”  458 U.S. at 218.

A few points are worth making.  First, the Supreme Court entirely ducked the question of what constitutes an appropriate education.  The Court held that passing from grade to grade might be enough and said, if the procedures are done right, the substance should be okay.  Neither is a definition.  Neither gives schools and parents anything with which to work.
Second, the argument that, if the procedures are followed, the substance will come out right is logically unsound and specious.  There is no necessary relationship between following the array of procedural requirements of the statute and the quality of education a child with a disability receives.  Indeed, unless the parents know of and argue for a particular educational approach, which is not always the case, the school can provide any education it wants.  There is nothing in the procedures which leads to or even increases the likelihood of an appropriate program.

Third, receiving passing grades and moving from grade to grade could mean that a student is making education progress.  It could mean that the school system practices social promotion.  And, it could mean that the district does not want the added expense and burden of keeping a special education student in the system for another year.  If the Court really meant that passing from grade to grade was enough, the court created a loophole of astounding proportions.

Perhaps most unfortunately, the Rowley decision set in play more than twenty years of “got ya” litigation.  While parents wanted to challenge the appropriateness of their child’s educational program, they learned that they would have more success in pointing out where a district failed to give five days notice of an IEP team meeting, where a district failed to consider accommodations within the regular classroom before considering placement in a self-contained class, or where a district neglected to have a regular education teacher at an IEP team meeting.  After Rowley, parents still could and did win challenges to their child’s IEP.  Perversely, they had to cite procedural error, which often did not matter, to win a substantive victory.  Indeed, courts showed deference to the judgment of educators on issues of educational policy but no deference on procedural compliance. 

A number of items of obiter dictum in the Rowley decision have become talismanic to Boards and their lawyers.  The notion that districts have unilateral control over educational methodology, more fully articulated in Lachman v. Illinois State Board of Education, 852 F.2d 290 (7th Cir. 1988), has become a rallying cry for Boards.  Yet, the statement proves too much.  By way of analogy, if you can get to New York City using either the Merritt Parkway or I-95, the school has the choice of which road to take.  But, if you can get to New York either by driving or by walking, the issue is no longer one of methodology.  Or, more to the point, the Merritt Parkway might be a perfectly good road for most vehicles.  But, it is useless for a commercial vehicle. 

This issue of methodology has been hotly disputed in the case of Lovaas-type discrete trial training for children with autism.  Some courts have held that, because discrete trial training is the only proven treatment for children with autism, schools can be required to provide it.  When it is essential to use a particular technique to provide educational benefit, it is not longer a question of methodology.  Other courts have found other methods of teaching children with autism to be acceptable and have left the choice of methodology up to the school.  The conclusion is that something is methodology if not essential to provide educational benefit and it is not methodology if it is.

The Supreme Court’s reliance on passing grades and advancement from grade to grade has similarly led to continued controversy.  The courts have engrafted a requirement for more than trivial progress onto the Rowley criteria.  The Second Circuit has recently explained, “Moreover, this court has held that "for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression." Weixel v. Bd. of Educ., 287 F.3d 138, 151 (2d Cir.2002) . A valid IEP should provide for the opportunity for more than "trivial advancement," Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir.1997) , such that "the door of public education" is "opened for a disabled child in a 'meaningful' way."  Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119,130 (2d Cir.1998) (quoting Rowley, 458 U.S. at 192).  D.F. v. Ramapo Central School District, 430 F.3d 595, 598 (2d Cir. 2005).  As the Third Circuit explained, “when the Supreme Court said "some benefit" in Rowley, it did not mean "some" as opposed to "none." Rather, "some" connotes an amount of benefit greater than mere trivial advancement.”  Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 183 (3d Cir. 1988).  The requisite degree of reasonable, likely progress varies, depending on the student's abilities. Under Rowley, "while one might demand only minimal results in the case of the most severely handicapped children, such results would be insufficient in the case of other children." Hall by Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985).  This doubletalk certainly undermines the Supreme Court’s contention that the Broderick standard was unworkable.

A further development of this confused benefit analysis has been the question of whether subsequent developments can render an IEP inappropriate.  In Furhmann v. East Hanover Board of Education, 993 F.2d 1031 (3rd Cir. 1993), the court repudiated “Monday Morning Quarterbacking”, saying that a student’s subsequent failure to make progress does not retroactively render the IEP inappropriate.  Recently, the Second Circuit raised the same question in D.F. and Judge Droney, here in Hartford, relied on Furhmann to hold that a hearing officer should exclude an expert’s analysis of the student’s program after he was already unilaterally placed by the parents at a private school.  B.L. v. New Britain Board of Education, 394 F.2d 522, 537 (D.Ct. 2005). 

So, even under the regime of Rowley, questions about outcomes have never been totally absent.  Still, results took a back seat to procedural compliance.  There are strong indications, however, that Congress wants that to change. 
When Congress began the reauthorization process in 1997, it learned that there was virtually no data on changes in academic performance due to the IDEA.  Special education students continued to drop out at a much higher rate than their typical peers.  Special education designation was disproportionally made to African-American and Hispanic children.  The House Committee noted, “Despite this progress, the promise of the law has not been fulfilled for too many children with disabilities. Too many students with disabilities are failing courses and dropping out of school. Almost twice as many students with disabilities drop out as compared to students without disabilities. Of further concern, is the continued inappropriate placement of children from minority backgrounds and children with limited English proficiency in special education. In addition, school officials and others complain that the current law is unclear and focuses too much on paperwork and process rather than on improving results for children.”  H. Rpt. 105-95 at 1997 U.S.C.A.N. 78 at p. 82.

As a result, Congress drafted the 1997 reauthorization to focus on results.  The purposes, contained in 20 U.S.C. § 1400(d) (1997) include:

(1)(A) 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;

(B) to ensure that the rights of children with disabilities and parents of such children are protected; and

*     *     *

(3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting systemic-change activities; …; and

(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities.

The Supreme Court in Rowley rejected any comparison of educational benefits between special education students and their typical peers.  IDEA ’97 demands such a comparison.  The regulations provide that students with disabilities should be involved with and progress in the general curriculum.  The Department of Education stated that the 1997 amendments were aimed at emphasizing that greater access by children with disabilities to the general curriculum and to education reforms [were] an effective means of ensuring better results for these children.  64 FR 12594-95 (March 12, 1999).  Further,
The provision in §300.347(a)(1)(i) that requires a description of how a child's disability affects the child's involvement in the general curriculum (i.e., the same curriculum as for nondisabled children) is a statutory requirement and cannot be deleted. The requirement is important because it provides the basis for determining what accommodations the child needs in order to participate in the general curriculum to the maximum extent appropriate.

A basic assumption made in both the statute and these final regulations is that the programming and services for each "individual" child would be tailored to address the child's unique needs that impede the child's ability to make meaningful progress in the general curriculum. (As explained elsewhere in this attachment, the reference to the general curriculum in §300.347(a)(2) has been modified to clarify that the general curriculum is the same curriculum for nondisabled children.)

64 FR 12637 (March 12, 1999).  It is results that matter.  In fact, Congress added 20 U.S.C. § 1412(a)(16), providing,
The State educational agency (or, in the case of a districtwide assessment, the local educational agency) makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(i) The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations in order to participate in those assessments.

(ii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(I).

(iii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(II).
(iv) The performance of children with disabilities on regular assessments and on alternate assessments (if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and reporting that information will not reveal personally identifiable information about an individual student), compared with the achievement of all children, including children with disabilities, on those assessments.

This provision has been retained in the 2004 reauthorization.  The Rowley court said a benefit standard comparing the achievement of disabled and non-disabled students would “present an entirely unworkable standard requiring impossible measurements and comparisons.”  458 U.S. at 198.  Notwithstanding the Court’s concerns, Congress has now mandated exactly the comparison rejected by the Court.
And, if IDEA 1997 placed the spotlight on results, IDEA 2004 turned up the intensity.  Congress could not have been clearer in repudiating the Rowley approach than it was in adding 20 U.S.C. §1415(f)(3)(E) which provides:
(E) Decision of hearing officer

(i) In general

Subject to clause (ii), a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.

(ii) Procedural issues

In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies--
(I) impeded the child's right to a free appropriate public education;
(II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or
(III) caused a deprivation of educational benefits.

(iii) Rule of construction

Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with procedural requirements under this section.

This language can be read in one of two ways.  One way is to say that the original EAHCA had two bases on which to attack an educational program for a student with disabilities:  procedural and substantive.  Rowley effectively kicked out the substantive route, leaving only the procedural.  This language seems to eliminate the procedural basis as well, leaving the parental safeguards as toothless.  Such an approach violates a central canon of legal interpretation which is that Congress did nor pass meaningless statutes. 
The other approach is to say that Congress was fed up with Rowley legacy of elevating procedure and dismissing substance.  Congress said in this language, which in many ways codified a number of court decisions, that schools are entitled to make some procedural errors, but the real test is whether the child gets an appropriate education.  In this language, Congress returned to the original principal of the EAHCA which was that children with disabilities were entitled to a meaningful, equal education as that of their non-disabled peers.  While Congress may not have been endorsing the equal protection approach used by Judge Broderick, it was saying that what matters is the education, not whether the forms were filled out correctly and mailed on the right date.
Why is this true?  The report of the House Committee on Education and the Workforce in reporting out the bill (H.Rept. 108-77, April 29, 2003), lists seven purposes of the legislation, including:

*     *     *

* ...[R]educing the overidentification or misidentification of nondisabled children, including minority youth. The overidentification of children as disabled and placing them in special education where they do not belong hinders the academic development of these students. Worse, the misidentification takes valuable resources away from students who truly are disabled. ...  A disproportionate number of minority students are wrongly placed in special education rather than being provided positive behavioral interventions and supports and intensive educational interventions. ... For minority students, misclassification or inappropriate placement in special education programs can have significant adverse consequences, particularly when these students are being removed from regular education settings and denied access to the core curriculum. This bill ... also eliminates the sole reliance on a "wait to fail" approach for identification of "specific learning disabilities" by allowing the use of other methods besides the outdated IQ-achievement discrepancy model. The bill encourages the greater use of programs that rely on positive behavioral interventions and supports.

* Encouraging innovative approaches to parental involvement and parental choice. Parents should be active participants in their child's education experience. However, often under the current Act, parents of students with disabilities are not fully informed or are often given limited options of where or how their child can be educated. ...

* Supporting general education and special education teachers. A continuing shortage of special education teachers, coupled with a shortage of regular education teachers who are adequately trained to work with students with disabilities, hinders the educational achievement of students with disabilities under current law. ... [The bill] aligns the Act with requirements of NCLB for "highly qualified" teachers so that all students with disabilities are taught by a highly qualified teacher in core content areas. ....

* Restoring trust and reducing litigation. Litigation under the Act has taken the less productive track of searching for technical violations of the Act by school districts rather than being used to protect the substantive rights of children with disabilities. This type of litigation breeds an attitude of distrust between the parents and the school personnel rather than working cooperatively to find the best education placement and services for the child. ...

* Ensuring school safety. Schools should be safe for all students and teachers. All students should be treated the same when it comes to discipline issues to ensure safety for all at the school. ...

*Reforming special education funding. The funding stream under the Act establishes a clear path to reach the 40 percent goal through the discretionary appropriations process.

H. Rpt. 108-77 at pp. 83-86.  You will note that the first, third, fourth and fifth of these objectives directly relate the ensuring quality, substantive education.  The first goal says, in part, “Currently, the Act places too much emphasis on compliance with complicated rules, and not enough emphasis on ensuring that academic results are being delivered for children with special needs.”  The language of the fifth goal is particularly on point: It is wrong that litigation has focused on procedural irregularities rather than the substantive rights of children with disabilities.  The other objectives spell out those substantive rights to relate to the quality of education.  As the committee said, “As a result of this misplaced emphasis, too many children in special education classes have been left behind academically.”  A clearer repudiation of Rowley is hard to imagine.

          F.         NCLB, HQT, AYP, etc.
            Clearly, one of the critical objectives of the 2004 reauthorization was to align the IDEA with the requirements of No Child Left Behind (NCLB), P.L. 107-110.  Perhaps the place where the rubber most meets the road in this regard relates to the highly qualified teacher standards.  Under NCLB, all teachers who teach core academic subjects must be highly qualified by the end of the 2005-2006 school year.  All teachers teaching special education must have special education certifications.
IDEA 2004 established some special wrinkles.  If a special education teacher teaches core academic subjects exclusively to students assessed against alternative achievement standards (such as students with significant cognitive disabilities), then a teacher may become highly qualified by either meeting the NCLB requirements for teachers or meeting the elementary standards if teaching at the elementary level or has the subject matter knowledge appropriate to the level of instruction being provided as determined by the state.  If the special education teacher is teaching two or more core academic areas exclusively to children with disabilities, the teacher may meet the NCLB standards or may demonstrate competence through the state’s highly objective uniform state system of evaluation (HOUSSE) within two years. 

NCLB amended the Elementary and Secondary Education Act of 1965 to provide for the measurement of adequate yearly progress.  20 U.S.C. §6311(b)(2)(C) defines the term to require measurements of the performance of subgroups on uniform tests.  Among those subgroups are children with disabilities.  The subgroup is excluded from measurement when “the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student.”  As a practical matter, that means that, if the school has fewer than 40 special education students, AYP does not have to be measured.  Stated otherwise, large schools can fail to make adequate yearly progress because of the poor performance of one subgroup, such as students with disabilities.  Smaller schools would not likely be caught in the same trap.  Although IDEA 2004 does not directly address this issue, this is another area in which the intersection of IDEA and NCLB has real consequences.