Special education and related services that-
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. (20 U.S.C. §1401(8))

1. An individualized program (IEP) addressing all the child's unique education needs, which is
2. Reasonably calculated to allow the child to receive educational benefit, and which is
3. Developed and implemented in compliance with the procedural requirements of IDEA.

[T]he school district cannot simply provide conclusory statements that the IEP was adequate. The school district must show the following concrete information. First, the school district must show that it set forth the proper elements of the IEP.... Second, the school district must show that the annual goals, benchmarks, and short-term objectives set forth in the IEP were reasonable. The goals must be realistic and attainable, yet more than trivial and de minimus. Third, the school district must show that the methodology that it employed was tailored to meet the annual goals, benchmarks, and short-term objectives set forth in the IEP. Stated differently, the special education and related services must be tailored to reasonably accomplish the goals in the IEP (at 610).

The district court found that from September of 1989 to May of 1991 Nicholas's word attack skills had not risen above a first grade level, and a standardized test administered in September of 1991 revealed that his reading proficiency ranked in the second to ninth percentile. At the close of his fifth year in the Fort Zumwalt School District, Nicholas Clynes, at the age of ten, still did not know the alphabet, could not recite the days of the week, and could not identify the months of year. It is true, as the majority points out, that Fort Zumwalt promoted Nicholas to the fourth grade, but it is notable that in third grade Nicholas did not receive a grade above a "C." By the end of the year, Nicholas had failed Spelling and had managed to raise a failing grade in Reading for the third quarter to a "D" for the final quarter.

In the face of these disturbing trends, Fort Zumwalt prepared an IEP for 1991-92 that did not propose any significant changes in Nicholas's educational placement. The IEP did set goals in word attack skills, but Nicholas's resource room instructor, Miss Ruhr, testified that she would continue to emphasize the child's ability to recognize the meaning of sighted [sic] words, a method that had failed miserably in the past to enhance Nicholas's reading aptitude. At the meeting to discuss the IEP, the Clyneses expressed concern with Nicholas's inability to read and asked what alternatives were available to their son. The district reacted by attributing Nicholas's academic shortcomings to his own poor attitude and refusal to put forth the requisite effort. Miss Ruhr stated that she had "tried everything" and did not "know what else to do"; in her opinion, Nicholas had "chosen not to learn." Alarmed by this response, Mrs. Clynes later telephoned Pat Moore, For Zumwalt's director of special education, to discuss Nicholas's meager progress. Mrs. Moore informed the worried mother than some children are simply "non-readers" despite the district's best efforts. After deciding that the district has given up on Nicholas, the Clyneses enrolled the child in the Churchill School. [citations omitted] (Fort Zumwalt dissent, supra, at 616, 617)

After studying the underlying factual findings of the district court in light of the record and legal standards under IDEA, we conclude that the school district did offer Nicholas a free appropriate public education as required by Congress. Although Nicholas may well have benefited more from his education at Churchill than at Hawthorne, and he did not read as well as his non-disabled peers or as he parents hoped, IDEA does not require the best possible education or superior results. The statutory goal is to make sure that every affected student receive a publicly funded education that benefits the student. Nicholas' record at Hawthorne indicates that he was making progress and that the 1991-92 IEP would have provided educational benefit to him. Despite his learning disabilities in reading and math, Nicholas earned passing marks in third grade and mostly C's in mathematics. Although Nicholas did not have well developed word attack skills, his overall reading skills had improved, and he had been promoted to fourth grade just before his parents removed him from Hawthorne. The 1991-92 IEP called for Nicholas to spend over one quarter of each school day in the specialized learning disabled classroom in order to address his disabilities, double the amount of the previous year. The Hawthorne IEP set goals in word recognition, comprehension, language skills and math, and the specialized education provided was reasonably calculated to enable him to benefit from his public education. [citations omitted] (Fort Zumwalt, supra at 613)

I agree with the [hearing officer] and the district court that the IEP for 1991-92 was not designed to provide "personalized instruction with sufficient support services to permit [Nicholas] to benefit educationally from that instruction." By submitting an IEP substantially similar to others that had previously produced so few positive results, and by exhibiting an unwillingness to explore any different approaches, Fort Zumwalt did not extend to Nicholas the free and appropriate education mandated by IDEA. To be sure, Nicholas was steadily advancing from grade to grade in the Fort Zumwalt schools, and the Supreme Court has stressed that "[t]he grading and advancement system ... constitutes an important factor in determining educational benefit," but Nicholas's achievements, particularly in the area of reading skills, can at best be described as trivial. This cannot be the sort of education Congress had in mind when it enacted IDEA. [citations omitted] (Fort Zumwalt dissent, supra at 617)

The testimony and documentary evidence tell a compelling story of a very intelligent, but emotionally vulnerable, child who is at great risk of dropping out of school, despite a demonstrated capacity to succeed academically, socially and emotionally in an appropriate program. The expert testimony establishes that, the nature of Frank's dyslexia in conjunction with his emotional problems, is such that he needs an intensive program of individualized, integrated, multi-sensory, sequential training with students of similar needs. The IEP proposed for Frank is not such a program, and therefore cannot meet his needs.

It does not appear to this Court that either the hearing office or the State Review Officer considered the testimony of the experts on dyslexia....

While the 1994-95 IEP certainly touches upon some of the necessities for Frank to benefit from an education program, as the court has already found, it reduces or omits several of the types of services that those who know Frank, and have expertise and experience in his type of learning disability, believe are essential to his benefiting from an educational program. For instance, one such omission involves the presentation of a subject matter in a multi-sensory, sequential manner. The failure to use an approach that will provide Frank with the tools to become, for example, an independent reader is alone an important reason why the district's IEP does not provide an appropriate education. (Evans, supra at 101, 102)

Although the Student did receive educational gains in some areas, and made reported progress of six months per year in the Milestones reading program, the progress was not transferable to other academic or non-academic areas wherein student could read, and the student for all intents and purposes was a non-reader during the his [sic] first four grades within the LEA educational environment.

The ability to read is a fundamental ingredient in a free appropriate education that can be diminished only by a finding that the disabled child is clearly incapable of achieving reading skills transferable to life settings. The failure to use an approach that will provide Student with the tools to become an independent reader is alone an important reason why the LEA did not provide an appropriate education. (Nein, supra at 970)

The IDEA provides "elaborate and highly specific procedural safeguards," but only "general and somewhat imprecise substantive admonitions." Board of Education v. Rowley, 458 U.S. 176, 205, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Unlike plaintiffs in many IDEA cases, the Neins do not challenge the procedures Greater Clark used to decide upon educational programs for Lucas. They contend instead that Greater Clark failed to meet the substantive standards of the Act, which require a "basic floor of opportunity" for disabled children in the form of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Id. At 201, 102 S.Ct. 3034.

1. Lucas received some educational benefit and that was all he was entitled to under IDEA.
2. Lucas progressed in the Milestones reading program at about 1/2 year per academic year, and that amount of progress is not trivial or insignificant but is "undisputed evidence of significant educational benefit."
3. Lucas was promoted every year and made good academic grades.
4. Lucas' standardized test scores (showing 1^st grade reading level in the 4^th grade) were not accurate or appropriate.

1. Lucas was essentially a non-reader after four years of special education.
2. The school was proposing "more of the same" for Lucas for 5^th grade.

(1) [W]hat level of educational benefit is necessary to satisfy the requirements of the IDEA; and (2) [W]hat is the proper measure of educational benefit? When the Supreme Court addressed the first question in 1982, it held that an IEP is valid under what is now the IDEA if it is "reasonably calculated to enable the child to receive educational benefits." (Rowley). The Court also held that a state satisfied the requirement of providing a free appropriate public education "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Id. At 203, 102 S.Ct. 3034. ... (Nein, supra at 972)

A recent amendment to the IDEA also offers some insight regarding what level of educational benefit is necessary to satisfy the requirements of the IDEA. Congress amended the Purposes section of the IDEA in 1997 to state that the IDEA seeks "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." 20 U.S.C. § 1400(d)(1)(A)(1998). The stated purpose of preparing a child for employment and independent living supports the Third Circuit's view in Ridgewood that an IEP must be reasonably calculated to provide a child with a meaningful educational benefit. Additionally, Congress' statement that an IEP should be designed to meet a child's "unique" needs reinforces the Supreme Court's holding in Rowley that special education services must be "personalized." See 458 U.S. at 203, 102 S.Ct. 3034.

If an IEP must be designed to take into account a child's individual educational needs, it logically follows that the child's capacity to learn should also be considered in evaluating the IEP. Thus, when gauging substantive compliance with the IDEA, the educational benefit provided to the child "must be gauged in relation to the child's potential," so that when a student displays "considerable intellectual potential," the IDEA requires "a great deal more than a negligible [benefit]" (Ridgewood quoting Polk, 853 F.2n at 185, 182). Similarly, evidence that a child has made some "minimal improvement" does not necessarily show the school has satisfied the Rowley standard (Nein, supra at 973,974).

... despite Dr. Eglen's "conjecture" to the contrary, Lucas had average intelligence and the ability to process and learn; that the special education services Lucas received at Parkwood Elementary had been effective in some areas but had not been very effective in reading; that Lucas could not read anything outside of the Milestones reading program; that at the end of fourth grade, Lucas's reading skills were at the middle of first grade level; that an expert in dyslexia believed Lucas had "extremely limited growth" while at Parkwood Elementary and was "entitled to more growth than that;" and finally, that Greater Clark personnel did not demonstrate any expertise or extended training in teaching students defined as dyslexic. (Nein, supra at 976).

At the risk of carrying these metaphors too far, for a student like Lucas, the ability to read is truly the key that opens the door to all other aspects of an education. In terms of the automotive metaphor, Greater Clark was providing the Neins with a Chevrolet without a transmission--even if the engine might run, no power ever reached the wheels. Because the Milestones program produced no transferable progress in three years, as both the initial hearing officer and the Board of Appeals found, the program was plainly failing to provide even a minimally adequate educational benefit. (Nein, supra at 977).

Taking all of those cautions into account, however, on facts as extreme as these, where a child with a severe learning disability but significant potential made no transferable progress in three years, and where there was no indication the public school was ready and able to change direction, the limits of "due weight" and judicial deference to school authorities have been exceeded. (Nein, supra at 975).

[This testimony] does not show that Ms. Hoeppner either had actually implemented Ms. Dakin's recommendations or was planning to do so. Ms. Dakin made numerous recommendations, but the recommendation most at issue here was that Greater Clark implement a direct teaching reading program using multisensory, structured, sequential techniques. Ms. Hoeppner did not testify that Lucas' fifth grade IEP included the use of such a teaching program, or that she was planning to use such a teaching program. In fact, Lucas's IEP does not provide for the use of a direct teaching method or any other particular teaching technique to be used to improve his reading skills. As Ms. Hoeppner explained, because there are never any specific instruction in a student's IEP regarding teaching methodology or technique, Ms. Hoeppner would determine what teaching techniques to use with a particular student by looking at the broad goals contained in the student's IEP. There is simply no evidence in the record indicating that, if Ms. Hoeppner had had the opportunity to implement the fifth grade IEP, she was planning to use a teaching method or technique different from those she had used unsuccessfully with Lucas for the prior three years.

Even if Lucas's revised fifth grade IEP had provided for direct teaching using multisensory, structured, sequential techniques to improve his reading skills, there also is no evidence that any Greater Clark personnel were sufficiently qualified to work with dyslexic children. Both the initial hearing officer and the Board of Appeals found as a fact that Great Clark personnel did not demonstrate any expertise or extended training in teaching students defined as dyslexic. ...

The evidence demonstrates that Lucas Nein has the ability to learn how to read and that, for three years, Greater Clark was unable to help Lucas transform his potential to learn how to read into actual ability to read. When confronted with evidence of this failure, Greater Clark then failed to offer anything but more of the same for Lucas in his fifth grade year. These facts alone establish that Greater Clark did not provide Lucas or offer him an appropriate public education.

The court recognizes that educational policy decisions are generally best left to school authorities. However, the court also has a duty under the IDEA to review the evidence in the record carefully and to determine whether, in light of the evidence, school authorities have made a reasonable decision. (Nein, supra at 979).

With regard to the definition of "specially designed instruction," some changes should be made. The committee reports to Pub. L. 105-17 (1997 IDEA) make clear that specific day-to-day adjustment in instructional methods and approaches are not normally the sort of change that would require action by an IEP team. Requiring an IEP to include such a level of detail would be overly-prescriptive, impose considerable unnecessary administrative burden, and quite possibly be seen as encouraging disputes and litigation about rather small and unimportant changes in instruction. There is, however, a reasonable distinction to be drawn between a mode of instruction, such as cued speech, which would be the basis for the goals, objectives, and other elements of an individual student's IEP and should be reflected in that student's IEP, and a day-to-day teaching approach, i.e., a lesson plan, which would not be intended to be included in a student's IEP.

Case law recognizes that instructional methodology can be an important consideration in the context of what constitutes an appropriate education for a child with a disability. At the same time, these courts have indicated that they will not substitute a parentally-preferred methodology for sound educational programs developed by school personnel in accordance with procedural requirements of the IDEA to meet the educational needs of an individual child with a disability.

In light of the legislative history and case law, it is clear that in developing an individualized education there are circumstances in which the particular teaching methodology that will be used is an integral part of what is "individualized" about a student's education and, in those circumstances will need to be discussed at the IEP meeting and incorporated into the student's IEP. For example, for a child with a learning disability who has not learned to read using traditional instructional methods, an appropriate education may require some other instructional strategy.

Other students' IEPs may not need to address the instructional method to be used because specificity about methodology is not necessary to enable those students to receive an appropriate education. There is nothing in the definition of "specially designed instruction" that would require instructional methodology to be addressed in the IEPs of students who do not need particular instructional methodology in order to receive educational benefit. In all cases, whether methodology would be addressed in an IEP would be an IEP team decision. (62 FR 55026, Oct. 22, 1997)

1. Courts and hearing officers usually defer to a district's choice of methodology when and if that methodology is resulting in the student receiving FAPE;



2. The IEP team must determine whether a particular child's unique needs include the need for a certain methodology or type of methodology and put it on the IEP as needed.

1. The IEP mainly replays previously unsuccessful IEPs' types or amounts of services.
2. Special services on the IEP have been decreased, rather than increased, in response to failure.
3. The IEP is missing elements critical for the student, such as a high degree of structure, small class size, or 1:1 teaching. In other words, unique needs of the student were not addressed.
4. The IEP fails to provide essential accommodations to deal with the student's needs, such as an inability to read textual material.

5. The IEP was not implemented; services were not delivered as written.
6. The district has not provided adequately trained staff to work with the student or to implement the IEP.
7. The IEP offers what is available, rather than what is required to address all the student's unique needs.
8. The IEP has been developed without a thorough, appropriate evaluation.
9. The student made little progress or actually regressed.

1. Not having the IEP completed at the proper time;
2. Not having objective, measurable benchmarks or goals;
3. Failing to properly consider experts' recommendations;
4. Not having all required team members present;
5. Not including all the required components of the IEP;
6. Not addressing all of a child's unique educational needs;
7. Making a placement decision prior to developing the IEP.