The opinion of the court was delivered by: SMITH
FERN M. SMITH, UNITED STATES DISTRICT JUDGE.
To qualify for federal funding under the Education of the Handicapped Act, a state must provide its handicapped with "appropriate education." 20 U.S.C. § 1412(1). "Appropriate education" is education which meets both federal and state statutory requirements. 20 U.S.C. § 1401(a)(18).
In 1981, the U.S. Supreme Court confronted the question: What is "appropriate education" under the EHA? Relying on the legislative history for evidence of Congress' intent, the Court concluded that a reviewing court's "appropriate education" inquiry was limited to two questions: 1) Has the responsible agency complied with EHA procedures? and 2) Is the Individualized Educational Program ("IEP") reasonably calculated to enable the child to receive educational benefits? Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 206-07, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1981) (" Rowley "). In defining the EHA's "appropriate education" requirement, the Supreme Court said nothing about whether a state could impose on itself a higher standard for education of the handicapped.
California Code of Regulations § 3001(b) requires educational programs for the handicapped to "provide the equal opportunity for each individual with exceptional needs to achieve his or her full potential commensurate with the opportunity provided to other pupils." Since the U.S. Supreme Court did not construe the EHA to prevent a state from adopting an educational standard which is equal to or exceeds the standard set forth in Rowley, plaintiff urges that this Court review the administrative determination at issue here under the standard imposed by the California Code of Regulations.
1. Adoption of the California Standard
Although there are no controlling cases in this circuit, the two circuit courts which have addressed a choice of law under the EHA have enforced the state standard where it exceeded the federal standard. See e.g., Town of Burlington v. Dept. of Educ. Com. of Mass., 736 F.2d 773 (1st Cir. 1984), aff'd sub nom. 471 U.S. 359, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1984) (" Burlington ") and Geis v. Brd. of Educ. of Parsippany-Troy Hills, 774 F.2d 575 (3rd Cir. 1985) (" Geis ").
In light of the legislative intent of the act and because the state standard is by reference incorporated in the EHA, this Court is inclined to follow the reasoning set forth by the First and Third Circuits. Under the EHA, each state is given the power to enunciate its own procedural and substantive protections for its handicapped, provided it meets the federal minimum standard. Any ...