The U.S. Supreme Court last week wrestled over a handful of words and phrases that could set the standard for the level of benefit that school districts nationwide must provide to students in special education.
鈥淲hat is frustrating about this case and about this statute is that we have a blizzard of words,鈥� Justice Samuel A. Alito Jr. said late in the Jan. 11 oral arguments in (Case No 15-827), referring to words such as 鈥渟ignificant鈥� and 鈥渕eaningful.鈥�
鈥淚f you read them literally, it鈥檚 not clear to me they mean anything different,鈥� Alito said. 鈥淲hat everybody seems to be looking for is the word that has just the right nuance to express this thought.鈥�
Three Perspectives
The justices were offered plenty of advice from three lawyers who argued before them. One represented the Colorado student with autism known as Drew, now 17, whose parents contend that the individualized education program offered by his school failed to provide any educational benefit to him.
Jeffrey L. Fisher, a Stanford University law professor representing the family, told the court that the Individuals with Disabilities Education Act 鈥渄oes not permit a school district to provide a child with a disability a barely more than de minimis educational benefit.鈥� He was referring to language used by a federal appeals court in the case.
鈥淩ather,鈥� Fisher continued, 鈥渨hat the act requires is for the school to provide instruction and related services to the child that are reasonably calculated to provide substantially equal educational opportunities.鈥�
Another perspective came from the Obama administration, with Irv Gornstein, a counselor to the U.S. solicitor general, backing the student, but offering a slightly different standard.
A valid IEP is 鈥渁 program that is reasonably calculated to make significant educational progress in light of the child鈥檚 circumstances,鈥� he said, adding that the administration would differ from Fisher鈥檚 proposed standard in that 鈥渨e would say significant progress toward grade-level standards, not as close as possible to grade-level standards.鈥�
And finally, the court heard from Neal K. Katyal, a Washington lawyer representing the Douglas County district. He is defending a by the U.S. Court of Appeals for the 10th Circuit, in Denver, that provided that court鈥檚 interpretation of a 1982 Supreme Court decision, in .
Under Rowley, a 鈥渇ree, appropriate public education鈥� under the IDEA must confer 鈥渟ome educational benefit鈥� on the student. The 10th Circuit court defined 鈥渟ome educational benefit鈥� as requiring a benefit that is 鈥渕erely more than de minimis,鈥� or trivial, which is a lower standard than some other federal appeals courts have applied, such as a 鈥渕eaningful benefit.鈥�
鈥淲e think 鈥榤ore than de minimis,鈥� which is what almost every circuit is using right now, has worked and it follows naturally from the 鈥榮ome benefit鈥� language in Rowley,鈥� Katyal said.
Any change in the standard for the level of educational benefit required for a free, appropriate public education under the IDEA was a matter for Congress, not the high court, to decide, Katyal said.
鈥淚f this court were to change the standard, you know, it would invite all sorts of litigation,鈥� he said.
Concern on Litigation
Some justices expressed general concerns about the costs to the states and school districts of an expansive special education standard, and some worried that adopting a new standard would subject districts to much new litigation.
鈥淒o you think that costs should be measured against the possible results to be achieved?鈥� Justice Anthony M. Kennedy asked Gornstein. Not in the usual special education case, Gornstein replied.
Justice Stephen G. Breyer told Fisher that 鈥渢he problem that鈥檚 working in my mind is if we suddenly adopt a new standard, all over the country we鈥檒l have judges and lawyers and people interpreting it differently, and so why isn鈥檛 the present situation sufficient?鈥�
Fisher said that everyone agrees 鈥渢hat the IEP process has to be followed. ... The difficulty is that it just doesn鈥檛 happen.鈥�
By the end of the argument, it seemed apparent that a majority of the eight-member court was disinclined to accept the standard adopted in this case by the 10th Circuit court, though it was unclear how far the justices might go in backing the student.
Chief Justice John G. Roberts Jr. told Katyal that his side was 鈥渞eading the Rowley standard as requiring 鈥�some benefit,鈥� and the other side is reading it as saying 鈥榮ome benefit.鈥欌赌�
The chief justice鈥檚 emphases on the differing words brought laughter in the courtroom.
鈥淚t makes a difference,鈥� Roberts continued. 鈥淎nd one reason I think that it鈥檚 problematic for you is because Rowley just doesn鈥檛 say 鈥榮ome benefit.鈥� It tells you what it is. And it鈥檚 enough benefit to keep track with grade progress. And if that鈥檚 what the standard is, that鈥檚 certainly more than鈥攜ou know鈥�'slightly more than de minimis.鈥� 鈥�
Justice Elena Kagan pressed Katyal on his view that the 鈥渟ome educational benefit鈥� standard of Rowley has, as Katyal put it, 鈥渂een interpreted in court after court to actually have bite.鈥�
鈥淒o you favor a standard with bite?鈥� Kagan asked him.
The Rowley standard 鈥渄oes have some bite,鈥� Katyal said.
Playing on the chief justice鈥檚 example of a few minutes earlier, Kagan then asked Katyal, 鈥淲ould that be 鈥�some bite鈥�? Or 鈥榮ome bite'?鈥� That also drew laughter.
鈥淚t is 鈥榮ome educational benefit鈥�,鈥� Katyal said. 鈥淭hat鈥檚 the language of Rowley. And if you disagree with it, Congress can change it.鈥�
鈥淲ell,鈥� Kagan replied, 鈥渋f somebody said to you, write a standard with bite, I doubt you would come up with the words 鈥榤ore than merely de minimis.鈥� 鈥�
