Document Type


Publication Date

January 2012


This article is to appear in the Journal of Law and Education.


Thirty years old in 2012, Board of Education v. Rowley is the case that established a some-benefit or floor-of-opportunity standard for the services public school districts must provide to children who have disabilities. 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. 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. This Article explores 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 ambiguously worded statutes. 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. Despite Rowley, 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 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.