Goal Setting On The IEP --
It Should Be Grade Level Equivalency

Is The Goal of Your Child's IEP a Reasonable Amount of Growth for One Year?

Is the goal on the IEP for your child a reasonable amount of growth for one year based on that child's unique needs and unique position?

In Carter v. Florence County School Dist. Four, 950 F.2d 156 (4th Cir. 1991) the school finally recognized, near the end of the ninth grade, that a student had a learning disability. For a student about to begin the tenth grade, and reading at a 5.4 grade level, the school proposed for the end of a year of instruction that the student would be raised to a 5.8 grade level -- four-tenths of a year growth in one year of instruction. For a math goal, for a student at the math level of 6.4, they proposed a goal by the end of one year of 6.8 -- four-tenths of a year growth in that year of instruction.

"The court concluded that the IEP's goals of a mere four months progress in mathematics and reading allowed Shannon to continue to fall behind her classmates at an alarming rate and therefore ensured the program's inadequacy from its inception." Carter, at 159.

That decision was affirmed by the U.S. Supreme Court in a 9-0 decision, 114 S.Ct. 361 (1993).

In Ridgewood Bd. of Education v. N.E., 30 IDELR 41 (3rd Cir. 1999) the parents of a ninth grader filed for a hearing to get placement at a private school and compensatory education. The federal district court had found that the standard for an IEP was to offer simply "more than merely trivial benefit."

"More than merely trivial?" Is that the motto of the school district for all their students? How about one year's growth for one year of instruction?

The Third Circuit Court of Appeals vacated that federal district court judgment and sent it back for another try.

The Circuit Court ruled: "Noting that children of different abilities are capable of greatly different achievements, the Court (referring to the Supreme Court in Carter) instead adopted an approach that requires a court to consider the potential of the particular disabled student before it." (at 44).

"We first interpreted the phrase free appropriate public education when we rejected the notion that the provision of any educational benefit satisfied IDEA, holding that IDEA clearly imposes a higher standard... and requires a satisfactory IEP to provide significant learning and confer meaningful benefit. .. When students display considerable intellectual potential, IDEA requires a great deal more than a negligible benefit." (at 44) "It appears that the District Court may not have given adequate consideration to ME's intellectual potential in arriving in its conclusion that Ridgewood's IEP was appropriate. Although its opinion discussed the IEP in considerable detail, it did not analyze the type and amount of learning of which M.E. is capable."

The IEP must be individualized, personalized, tailored and specially designed

The IEP must be individualized, personalized, tailored and specially designed to the needs of that one child. The child should not just be dumped into an ongoing program based on that child's disability label.

In Leslie B. v. Winnacunnet Coop. Sch. Dist., 28 IDELR 271 (D. NH 1998) the federal district court found "As long as an IEP is reasonably calculated to enable the child to achieve passing marks and advance from grade to grade [quoting Board of Education v. Rowley, 458 U.S. 176 (1982), at p. 204], the state has met its obligation to provide that child a free appropriate education."

Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176 (1982) is the United States Supreme Court decision that has set the standard. Rowley states that the IEP must be "reasonably calculated to confer benefit." (at 208). That level of benefit must match the child that we are dealing with. The IEP must be "personalized." Rowley at 181, 197, 203 and 210. The IEP must be "tailored." Rowley at 189. The IEP must be "specially designed." Rowley at 188-89. The IEP must meet the '"'unique needs" of that one child. Rowley at 189. Further, the program offered must "approximate the grade levels used in the State's regular education..." Rowley at 189.

Justice Rehnquist, writing for the majority, explains the reason for the IEP and its goal setting and measurement of progress. He notes that before the requirements of the IDEA, many students "were left to fend for themselves in classrooms designed for education of their nonhandicapped peers." Rowley at 191. And Justice Rehnquist notes that the Congress realized these students "were sitting idly in regular classrooms awaiting the time when they were old enough to drop out." Rowley at 191.

"The IEP and therefore the personalized instruction, should be formulated in accordance with the requirement of the Act and, if the child is being educated in the regular classroom of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley at 203-204.

Further, the Court explains that the "educational program developed through the Act's procedures (must be) reasonably calculated to enable the child to receive educational benefits." Rowley at 206-07. The Court then adds "When the handicapped child is being educated in the regular classroom 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." Rowley at 207, n. 28.

Is the specially designed instruction reasonably calculated to achieve that goal? The Supreme Court has stated that "local education agencies in cooperation with the parents" are responsible for "choosing the educational method most suitable to the child's needs." Rowley, at 207. In Carter the court found that the proposal of three periods of resource room per week was inadequate. Carter, (4th Cir.) at 159. Is the instructional person who will carry out the program competent? See Wheeler v. Towanda Area School District, 950 F.2d 128 (3rd Cir. 1991). Is the method chosen tailored to the unique needs of that one disabled student? See Ewing Township Bd. of Educ. v. P.S.V., 18 IDELR 139 (D. NJ. 1991).

So a student on grade level should have an expectancy of one year's growth for one year of instruction. But what if the student is already behind, like Shannon Carter? What about compensatory services to catch them up to grade level?

The Carters put Shannon in a private facility that raised her from about four years behind to virtually grade level, meeting State graduation requirements, in her three remaining years of instruction. Approximately seven years growth in three years of instruction. The Supreme Court awarded every penny of cost attributed to that private education because they found that it was the appropriate education required for Shannon.

Thus when a school district begins the IEP process for the next year, they have to take into account whether the student should be operating at their grade level equivalency -- achieving passing marks and advancing from grade to grade. If they are below grade level, then an effort should be considered that would get them up to where they should be.

Shannon Carter was somewhat unique in getting caught up so quickly. She was able to get "compensatory" services in that her goal setting and programming in the appropriate private school allowed her to gain more than one year's growth for each remaining year of instruction. That is not "maximization" but rather compensation for previously inadequate teaching. Shannon was not required to pay the price of having had poor teachers.

But what if that type of compensation -- more than one year's growth for one year of instruction -- is not possible for a given child who is now several years behind? The IDEA offers services 3 through 21 with the recognition that some students will take longer to achieve what they can. If Shannon had needed more time than just the remaining 10th, 11th and 12th grades to reach her high school graduation level, she would certainly have been allowed additional services through age 21. She had the potential and she was below her potential because of the school's inadequacies.

Some courts have allowed services even past 21. The best language for compensatory educational services -- to get as much educational growth as possible by taking extra time -- is in Burr v. Sobol, 863 F.2d 1071 (2nd Cir. 1988). In Burr the student received services well beyond the age of 21 as compensatory education (for violations of his rights under the statute). [Note: The Second Circuit's decision was vacated by the Supreme Court in Dellmuth v. Muth, 109 S.Ct. 2397 (1988). The Second Circuit reconsidered their opinion and reinstated it at 888 F.2d 258 (1989). However, their initial decision in Burr still contains the best explanation of the rationale for compensatory education services.]

See also Jackson v. Franklin Co. Sch. Bd., 806 F.2d 623 (5th Cir. 1986), Lester H. v. Gilhool, 916 F.2d 865 (1990), Jefferson Co. Bd. of Educ. v. Breen, 864 F.2d 795 (11th Cir. 1988) and Todd D. v. Andrews, 933 F.2d 1576 (11th Cir. 1991). These are some of the early cases laying out the rationale for compensatory education services.

If the students in those cases were given extra time, not only past the traditional graduation age of 18, but in several instances beyond the statutory age of 21, then clearly a student who is capable of achieving a high school diploma with a few years more instruction should get it.

The instruction, according to the Supreme Court, must be individualized, personalized, tailored and specially designed (see Rowley cites above) so the student should not just languish in additional years of regular high school or be forced to repeat classes. The IEP should provide a specific program aimed at that individual student's needs to bring them up to where they can be.

The Supreme Court in Rowley warns, at 192, that the goal is not maximization of potential for this one child beyond what the regular education student is given access to -- and our rationale for compensatory services does not violate that.

What the child who receives compensatory education services is getting is extra help (either in time or concentration of services) to give them access to what all the other students are given access to -- the prospect of achieving passing marks, advancing from grade to grade, and graduating with a regular high school diploma.

"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." Rowley, at 199. "Yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been 'educated' at least to the grade level they have completed, and access to an 'education' for handicapped children is precisely what Congress sought to provide in the Act... Insofar as a State is required to provide a handicapped child with a 'free appropriate public education,' we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, at 203-204. (emphasis supplied)

Grade level equivalency is the proper goal of an appropriate education for students with special needs

Grade level equivalency is the proper goal of an appropriate education for students with special needs, just as it is for typical students, and access to what typical students have access to is what the IDEA requires for students with disabilities.

Every IEP should begin with the assumption that the goal is grade level equivalency, especially with the IDEA 1997 Amendments and the IDEA 1999 Regulations. The IEP would have to explain in detail why a child is not on track for grade level equivalency and what is to be done about it.

Congress recognized in 1997 that too many students have been the victims of inadequate educational systems that had no expectations for performance of students receiving special education services, and that had no problem "passing" students from year to year without attempting to give them a year of instruction for a year of their lives. [See 20 U.S.C. 1401(b)(4), (5)(A), (5)(B), (5)(C), (5)(D), and (5)(E)].

Congress recognized that the students were not failing -- the schools were failing the students.

Congress recognized that the students were not failing -- the schools were failing the students. And all through the 1997 IDEA Amendments, Congress demands that schools begin to do what they have promised that they would do for the past 22 years when they first starting taking the IDEA dollars -- to offer students with disabilities a chance at learning what the schools routinely offer to students without disabilities.

Reed Martin, J.D. website, has Special Education Legal Rights Strategies and Resources.  His website has answers to your questions with strategies to secure your child's rights!

Back	Last updated October 7, 2002 By Bonnie Marshall