Board of Education v. Rowley and IDEA: The Basis of Disability Representation for America’s Youth

/ American with Disabilities Act, Disability Rights / By

Emily Jaquez1

I. Introduction

 Since the mid-twentieth century, legislation has aimed to ensure accessibility and equality for individuals with disabilities.2 The Rehabilitation Act of 1973 provided the basis for accessibility in the workplace, public transportation, and federally funded programs for Americans with disabilities.3 Despite the strides made as a result of this legislation, educational disparities between disabled and able-bodied students continued to exist in public school systems.4 The Education for All Handicapped Children Act (EHA), later renamed the Individuals with Disabilities Education Act (IDEA), was enacted to further amend this issue and provide students with a “free, appropriate, public education,” also known as FAPE.5 The landmark Supreme Court case, Board of Education v. Rowley (1982), subsequently highlighted the importance of FAPE.6 The Court stated that under the EHA, special education services must adhere to a “basic floor of opportunity,”7 in which students with disabilities not only receive modified education but, more importantly, education with evident benefits.8 The Court implies that students receive evident benefits when it is ensured that their instruction is personalized and provides them with support.9 According to IDEA guidelines, Congress is required to fund up to forty percent of the nationwide cost of special education.10 On paper, it seems this legislation helps close the gap between educational possibilities for disabled and able-bodied students. In practice, however, IDEA funding nationwide has not reached its maximum for decades, as Congress has consistently provided funding well below forty percent.11

 This Note will argue that Congress’ failure to provide adequate IDEA funding does not allow for a “basic floor of opportunity” to be present in special education. Depending on the state in which they reside, funding below the forty percent maximum creates significant disparities amongst students. Inadequate funding produces inadequate education in turn, ultimately undermining the idea of a “basic floor of opportunity,”12 and violating the principle of FAPE for students with disabilities under IDEA guidelines.13

II. Mills v. Board of Education (1972)

Prior to breakthroughs in disability legislation, access to education for children with disabilities was slim.14 In some cases, school districts denied access to children with disabilities altogether, which prompted their families to seek redress from the courts.15 Mills v. Board of Education of District of Columbia (1972) highlighted these problems within the U.S. education system.16 Here, Peter Mills and six other disabled students in the District of Columbia public school system were expelled or denied admission without due process, as their district failed to provide them with an adequate education.17 The district court stated that the school district admitted to denying disabled students access to education, which violated the District of Columbia Code of Law, Section 31-203.18 Section 31-203 states that schoolchildren may be excused from school when they are physically or mentally unable to learn, except in the case where a modified education is provided for them.19 The Court ruled in favor of Mills that the District of Columbia must provide an adequate public education to every child, regardless of disability.20 When a student receives a specialized education, the District must also provide a hearing and review of the student’s educational plan to ensure that adequate education is provided.21 Mills ultimately set the precedent for future legislation, such as the Education for All Handicapped Children Act (EHA), which created more specific plans for all states to actively participate in special education. 

III. EHA and Board of Education v. Rowley (1982)

The main breakthrough in disability legislation was the Rehabilitation Act of 1973, which was passed by President Nixon.22 This Act, unlike previous legislation, provided a range of new opportunities for individuals with disabilities, including access to transportation, aides and interpreter services, and counseling services.23 More importantly, the Act prohibited federally funded programs—including public school systems—from discriminating against individuals with disabilities.24 Considering the Rehabilitation Act of 1973 and the Mills case, Congress passed the Education for All Handicapped Children Act (EHA) in 1975.25 This Act held states accountable for providing students with disabilities a “free, appropriate public education” (FAPE) and Individualized Educational Plans (IEPs), which are written statements of a disabled student’s educational performance, goals, and services provided to them.26 However, the idea of a FAPE standard has been a topic of debate since its establishment. Board of Educationv. Rowley (1982) challenged the FAPE standard. Here, Amy Rowley, a deaf student from New York, received a hearing aid from her school district under EHA guidelines.27 Her parents additionally requested that a sign language interpreter be placed in her classroom.28 The school district denied the request because Rowley appeared to be doing well academically and socially.29 Rowley’s parents argued that this violated the EHA premise of a free and appropriate education.30 Both the district and appellate courts ruled in favor of Rowley, noting that although Rowley was doing well in school, she could not reach her full potential because of her disability, as her hearing loss meant she understood less in comparison to other students.31 The Supreme Court, on the other hand, reversed the decision of the lower courts,32 arguing that Rowley was receiving FAPE as she was already given specialized instruction and passing from grade to grade without much difficulty.33 Considering FAPE, the Court stated that the EHA creates a “basic floor of opportunity” in which individualized special education is provided with the goal of educational benefit for a disabled student.34 The Court’s consideration of the “basic floor of opportunity” and FAPE in Rowley was a crucial step in determining how to move forward regarding special education provisions. As a result, the Court’s dissent ultimately led to the reauthorization of the EHA in 1990.35

IV. Individuals with Disabilities Education Act (IDEA)

A. EHA to IDEA

The reauthorization of the EHA to IDEA significantly amended the definition of handicapped children and allowed for more disabilities to qualify for special education, including traumatic brain injuries and autism.36 Additionally, the Act required that IEPs extend into postgraduate life for students, and provide a transition plan when students complete high school.37 Section 1411 of IDEA states that the maximum number Congress can provide in funding for special education is calculated by multiplying the number of children enrolled in special education programs by forty percent of the nationwide cost of special education.38 This funding, allocated on a state-by-state basis, can vary based on the number of students enrolled in special education programs.39 Funding increases are possible depending on Congress’ spending plans for the fiscal year (FY).

B. Implementation of FAPE


Implementing FAPE and a “basic floor of opportunity” depends highly on IDEA funding. States have consistently not received the maximum IDEA funding based on the forty percent calculation guidelines in Section 1411, which is in part due to Congress’ IDEA funding calculations.40 Because funding depends partially on the number of children enrolled in special education programs in each state, more populous states are at a disadvantage compared to less populous ones.41 Highly populated states are more likely to have higher numbers of children in special education, and thus receive less funding per child.42 In the FY 2021, for instance, California received $2,177 per child enrolled in special education, while Montana received $2,679.43 These funding disparities can lead to school districts hiring fewer special education professionals.44 A lack of professionals inevitably results in spending and enrollment caps on the number of students placed in special education, like in the Houston, Texas, school districts in 2016.45 This specific cap limited the number of students enrolled in special education in Texas to 8.5%, while the national average was around thirteen percent.46  

The funding disparities suggest students are being denied FAPE and a “basic floor of opportunity” as funding cannot be fairly split from state to state, leaving some at more of a disadvantage than others. Education cannot be “appropriate” when students do not have the resources to reach the basic floor of opportunity, whether it be through instruction, proper transportation, or counseling and therapy services.47 In 2016, the Trenton, New Jersey school district received 2,141 complaints alleging FAPE violations.48 In the same year, IDEA funding allotted only $1,858 to each child receiving special education in New Jersey.49 This dollar amount is slightly lower than the estimated national average of $2,000 allotted to each child in the same year.50 If this national average is considered the standard level of “appropriate” funding for that year, then many other states would also be at a disadvantage. Take Oklahoma, for example, which received $1,689 per child, or Pennsylvania, which received $1,766 per child.51 Although only slightly below the national average, even the smallest difference can be crucial in ensuring a meaningful impact on students’ educations. During the height of the COVID-19 pandemic in 2020, IDEA funding reached its lowest since 2000, providing 13.2% of the cost of nationwide special education funding.52 This funding was around $12.76 million.53 Had IDEA reached maximum funding during this year, nationwide funding would have been nearly three times, at around $36.3 million.54 An increase in better-allocated funding can produce better student outcomes.55 According to Rowley, the “basic floor of opportunity” for special education means that students gain useful and insightful information in their modified education.56 The Court stated that it was groundless for Congress to allocate money to special education if the students do not benefit from it.57 When students receive adequate education, it is more likely that they will exhibit better performance.58 In a 2019 study by the National Assessment of Education Progress (NAEP), students with disabilities were compared to students without disabilities in subjects such as reading and math. In choosing participants for the study, the NAEP selected students with disabilities they deemed could “meaningfully participate” in the assessment, so more severe forms of disability may not be accurately represented in the results.59 Of the students chosen, some of the disabilities represented in the assessment included specific learning disabilities, speech impairments, and autism.60 Results of the assessment found that students with disabilities in Grade 4 had lower averages in reading in comparison to those without disabilities.61 The scale ranged from a score of 160 to 209, indicating a below-basic reading level, and any score from 210 to 239 as a basic reading level. Students without disabilities had a scale score of around 225, indicating performance at a basic reading level.62 Students with disabilities, on the other hand, scored 184 on average, which is well below a basic reading level.63 Furthermore, in mathematics, a scale indicated a score of around 215 as a basic math level, and a score of around 250 as a proficient math level.64 Grade 4 students without disabilities scored an average of 244, indicating that their skills almost reached a proficient level, while students with disabilities scored an average of 214, which is right below the basic level.65 Although there is currently little research on the academic performance of students with disabilities on a state-by-state comparison basis, these statistics could provide insight into disparities between the performance of students with disabilities and those without. This also brings into question whether there are any differences between what exactly students with disabilities are learning in comparison to their non-disabled peers.

V. Solutions

One solution to the issue of inadequate IDEA funding is the IDEA Full Funding Act, which would increase IDEA funding to the forty percent maximum over ten years.66 According to Maryland Senator Chris Van Hollen, who co-authored the Act, the IDEA Full Funding Act would put an end to student disadvantages because of insufficient funding and cater to all students with disabilities.67 Considering that the FY 2023 only funded about thirteen percent of special education costs, the Act would generate about a two percent increase in funding every year for the next ten years.68 FY 2024, for instance, would generate 14.2% of IDEA funding from Congress, followed by sixteen percent in FY 2025.69 An immediate jump to the forty percent maximum is unfortunately not a realistic choice, shown by the pattern of low funding. Van Hollen’s resolution is most practical, as it puts less pressure on Congress to fully release maximum IDEA funding all at once, and gives states the chance to plan ahead on how to disperse increased special education funds when they are received. This would, in theory, more likely guarantee a “basic floor of opportunity” for all students in special education. However, as this bill is still in the works, it addresses IDEA funding more generally but does not explicitly express how funding will be allocated to states.70 A possible proposal for this issue would be balancing funding allocations in a way that fairly accounts for differences in special education populations. In this way, more heavily populated states such as New York and California will have equitable access to funding compared to less populated states.71 

A second possible solution to guarantee FAPE and the “basic floor of opportunity” is not entirely related to funding. Training more individuals to teach special education can help provide students with disabilities with the education they are entitled to and also relieve stress from spending cuts and understaffing.72 Special education understaffing reached an all-time high after the height of the COVID-19 pandemic.73 According to a study from the National Center for Education Statistics, special education teaching positions held the most vacancies in comparison to general education and substitute teachers.74 Lack of staffing can be harmful to students’ learning environments as it spreads teachers thin, not allowing them to give each student individualized attention.75 On a more positive note, in September 2023, the U.S. Department of Education’s Office of Special Education Programs allocated thirty-five million dollars in special education training.76 In providing the opportunity for more individuals to receive proper training, future teachers will also be better equipped to take on larger numbers of students and provide a beneficial educational experience, as outlined by the Court.77

VI. Conclusion

Disability legislation has benefitted the education system, opening many doors for children with disabilities.78 However, Congress’ failure to keep its promises has hindered students from receiving the education that has been guaranteed to them through legislation and judicial precedent.79 “Free, appropriate, public education” maximizes students’ potential by providing them with the most educational benefits possible.80 When IDEA was put into law, Congress incorrectly assumed that special education costs would not fluctuate over time, and did not account for the fact that funding needs vary from state to state.81 The “basic floor of opportunity” is not present until a student fully benefits from the special education services to which they are entitled.82 Congress is currently violating FAPE under IDEA guidelines by failing to meet the forty percent maximum of special education costs, and such lack of funding hinders students from receiving the “basic floor of opportunity” as outlined by the Court in Rowley.83 By setting forty percent as the standard for special education, balancing state allocation of funding, and training more special education professionals could alleviate many of the funding allocation disparities.84 Implementing the IDEA Full Funding Act would not only ensure that all students with disabilities have a fair opportunity to receive accommodations, but also hold Congress accountable to maintain their promise of equal educational opportunity for all students.85


  1. Author’s Note: B.A. Candidate for Political Science, Fordham College at Rose Hill, Class of 2025. I would like to give special thanks to my friends and family, who have supported my passion for law. I would also like to thank the FULR Editorial Board for their unforgettable assistance and support in the writing process of this Note.
  2. A History of the Individuals with Disabilities Education Act, U.S. DEPARTMENT OF EDUCATION (2023), https://sites.ed.gov/idea/IDEA-History.
  3. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355.
  4. Education for All Handicapped Children Act of 1975 (EHA), Pub. L. No. 94-142, 89 Stat. 773.
  5. Id.
  6. Board of Education v. Rowley, 458 U.S. 176, 201 (1982).
  7. Id.
  8. Id.
  9. Rowley, 458 U.S. at 203.
  10. Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1411.
  11. Id.
  12. Rowley, 458 U.S. at 201.
  13. IDEA, 20 U.S.C. § 1411.
  14. Mills v. Board of Education of District of Columbia, 348 F. Supp. 866, 868 (D.D.C. 1972).
  15. Id.
  16. Id.
  17. Id. at 868.
  18. Id. at 874.
  19. Id.
  20. Id. at 878.
  21. Id.
  22. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355.
  23. Id.
  24. Id. § 504.
  25. U.S. Department of Education, supra note 1.
  26. EHA, supra note 3.
  27. Rowley, 458 U.S. at 184.
  28. Id. at 185.
  29. Id.
  30. Id.
  31. Id. at 186.
  32. Id. at 209.
  33. Id. at 210.
  34. Id. at 201.
  35. U.S. Department of Education, supra note 1.
  36. Id.
  37. Id.
  38. Individuals with Disabilities Education Act, 20 U.S.C. § 1411.
  39. Id.
  40. Tammy Kolbe, Elizabeth Dhuey, and Sara Menlove Doutre, More money is not enough: The case for reconsidering federal special education funding formulas, THE BROOKINGS INSTITUTION (2022), https://www.brookings.edu/articles/more-money-is-not-enough-the-case-for-reconsidering-federal-special-education-funding-formulas/.
  41. Id.
  42. Id.
  43. Id.
  44. National Council on Disability, (IDEA Series) Broken Promises: The Underfunding of IDEA, NATIONAL COUNCIL ON DISABILITY (2018), https://ncd.gov/sites/default/files/NCD_BrokenPromises_508.pdf .
  45. Id.
  46. Valerie Strauss, What Texas Did to Its Special- Education Students, THE WASHINGTON POST (2016), https://www.washingtonpost.com/news/answer-sheet/wp/2016/09/18/what-texas-did-to-its-special-education-students/.
  47. Id.
  48. Id.
  49. Kolbe, supra note 39.
  50. Id.
  51. Id.
  52. National Education Association, IDEA Funding Gap By State FY 2020, NATIONAL EDUCATION ASSOCIATION (2021), https://www.nea.org/sites/default/files/2021-01/IDEA%20Funding%20Gap%20by%20State%20FY%202020.pdf .
  53. Id.
  54. Id.
  55. National Council on Disability, supra note 43.
  56. Rowley, 458 U.S. at 201.
  57. Id.
  58. Id.
  59. National Assessment of Educational Progress, Students with Disabilities and NAEP Assessments, NATIONAL ASSESSMENT OF EDUCATIONAL PROGRESS (2019),   https://www.nationsreportcard.gov/focus_on_naep/student_groups/#/students-with-disabilities/performance.
  60. Id.
  61. Id.
  62. Id.
  63. Id.
  64. Id.
  65. Id.
  66. Press Release, Office of U.S. Representative Jared Huffman, Huffman, Van Hollen Reintroduce Bicameral Bill to Fully Fund Special Education, (2023), https://huffman.house.gov/media-center/press-releases/huffman-van-hollen-reintroduce-bicameral-bill-to-fully-fund-special-education.
  67. Id.
  68. IDEA Full Funding Act, H.R. 4519, 118th Cong. (2023).
  69. Id.
  70. Id.
  71. Id.
  72. U.S. Department of Education, U.S. Department of Education Awards More Than $35 Million to Develop Personnel in Support of Children with Disabilities, U.S. DEPARTMENT OF EDUCATION (2023), https://www.ed.gov/news/press-releases/us-department-education-awards-more-35-million-develop-personnel-support-children-disabilities.
  73. National Center for Education Statistics, U.S. Schools Report Increased Teacher Vacancies Due to COVID-19 Pandemic, New NCES Data Show, NATIONAL CENTER FOR EDUCATION STATISTICS (2022), https://nces.ed.gov/whatsnew/press_releases/3_3_2022.asp.
  74. Id.
  75. Id.
  76. Id.
  77. Id.
  78. U.S. Department of Education, supra note 1.
  79. National Council on Disability, supra note 43.
  80. Rowley, 458 U.S. at 186.
  81. Evie Blad, Why The Feds Still Fall Short on Special Education Funding, EDUCATION WEEK (2020), https://www.edweek.org/teaching-learning/why-the-feds-still-fall-short-on-special-education-funding/2020/01.
  82. Id.
  83. Rowley, 458 U.S. at 201.
  84. Kolbe, supra note 39.
  85. Id.
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