Advocates for children with disabilities are cheering a recent decision by the U.S. Supreme Court as a triumph that establishes more-ambitious academic expectations for students in special education.
The high court rejected language in a lower-court ruling that a special education plan need only provide just above a minimal benefit to students.
鈥淚 think this will be a kick in the pants, and this decision will matter,鈥� said Brian Wolfman, a law professor at Georgetown University who helped represent the student involved in Endrew F. v. Douglas County School District, the case decided March 22. 鈥淣ow, the circuit courts are going to have to give a little more meat to this standard.鈥�
Representatives for school districts and some education groups have a more measured response, saying it creates a standard for the level of benefit required under the Individuals with Disabilities Education Act that most districts were already exceeding.
The U.S. Supreme Court鈥檚 March 22 decision in Endrew F. v. Douglas County School District, in a unanimous opinion by Chief Justice John G. Roberts Jr., has potentially far-reaching effects for how school districts provide services under the Individuals with Disabilities Education Act.
- Roberts鈥� opinion was informed by the Supreme Court鈥檚 seminal decision interpreting the federal special education law, 1982鈥檚 Board of Education of the Hendrick Hudson Central School District v. Rowley. In that case, the court said a child with a disability has received a 鈥渇ree, appropriate public education鈥� under the IDEA if the child鈥檚 individualized education program 鈥渋s reasonably calculated to enable the child to receive educational benefits.鈥� The court declined to set any particular test for determining when children are receiving sufficient educational benefits, saying that question presents a 鈥渄ifficult problem.鈥�
- In its opinion in Endrew F., the court rejected a standard adopted by the U.S. Court of Appeals for the 10th Circuit that an IEP is adequate as long as it provides a benefit that is 鈥渕erely more than de minimis.鈥� Roberts said a student offered an IEP under that standard 鈥渃an hardly be said to have been offered an education at all.鈥�
- The IDEA requires an educational program 鈥渞easonably calculated to enable a child to make progress appropriate in light of the child鈥檚 circumstances,鈥� Roberts said. For a child fully integrated into the regular classroom, an IEP typically should be 鈥渞easonably calculated to enable the child to achieve passing marks and advance from grade to grade.鈥� For a child not fully integrated into the regular classroom and for whom grade-level advancement is not a reasonable prospect, an IEP must be 鈥渁ppropriately ambitious,鈥� providing the child the chance to 鈥渕eet challenging objectives,鈥� the court said.
- The opinion rejected an argument put forth on behalf of Endrew F. that would require schools to provide students with disabilities the opportunity 鈥渢o achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.鈥� Roberts said such a standard was at odds with the court鈥檚 analysis in Rowley.
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Kathleen Sullivan, the chief counsel for the Colorado Association of School Boards, said in a statement that the decision sets forth a path that 鈥渋s not a radical alteration鈥� of the standard under an earlier Supreme Court decision and 鈥渨ill not disrupt the significant body of case law that has developed.鈥�
Both sides can find some support for their views in the opinion by Chief Justice John G. Roberts Jr. for a unanimous eight-member court.
鈥淲hen all is said and done, a student offered an educational program providing 鈥榤erely more than de minimis鈥� progress from year to year can hardly be said to have been offered an education at all,鈥� Roberts said.
鈥淭he IDEA demands more,鈥� the chief justice said. 鈥淚t requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child鈥檚 circumstances.鈥�
A Dispute Over Progress
Joe and Jennifer F., the parents of Endrew F., the student with autism who is at the center of the case, released a statement saying that, from the start, they felt it was wrong that the Douglas County, Colo., school district was only required, under the rulings of lower courts, to offer an education 鈥渨hich amounts to barely more than nothing.鈥�
鈥淲e鈥檙e very hopeful that this clarified standard that the court has articulated is workable for both parents and schools moving forward. Families should not have to fight this hard to get their kids what they deserve and are entitled to by federal law,鈥� said the parents, who have declined to be fully identified to protect their family鈥檚 privacy.
A lawyer for the 67,000-student Douglas County district, located between Denver and Colorado Springs, said the school system is confident that it already meets the standard outlined by the Supreme Court and that the district will prevail in further proceedings in the case.
鈥淣otably, the court did not hold that the Douglas County school district failed to meet the new standard, or say that DCSD can鈥檛 proceed to prove that it met that standard in the Endrew F. matter,鈥� said William E. Trachman, the district鈥檚 staff legal counsel. 鈥淚ndeed, in this case, the Douglas County school district offered an appropriate individualized education plan, and we look forward to proving to the lower courts that the IEP meets the new, higher standard.鈥�
Endrew, called Drew in court papers, is now 17. The case began when he was still in elementary school. He started to exhibit serious behavior problems, and by the end of 4th grade his behavior had deteriorated to the point where he was making only minimal progress on his educational goals.
His parents argued that the individualized education program the district developed for 5th grade was offering Drew just more of the same. They withdrew him from public school, enrolled him in a Denver private school called Firefly Autism House, and sought, under established precedents under the IDEA, reimbursement for the tuition.
The parents lost their case before an administrative-law judge, a federal district judge, and the U.S. Court of Appeals for the 10th Circuit, in Denver.
The appeals court held that 鈥渋t is not the district鈥檚 burden to pay for his placement there when Drew was making some progress under its tutelage. That is all that is required.鈥�
The Addition of 鈥楳erely鈥�
The appeals court cited the Supreme Court鈥檚 seminal 1982 case interpreting the original version of the IDEA, Board of Education of the Hendrick Hudson Central School District v. Rowley, saying that the decision merely required an IEP to provide 鈥渟ome educational benefit.鈥�
The appellate court also said it was relying on a 10th Circuit precedent that had interpreted that passage of Rowley to mean that a child鈥檚 IEP is adequate as long as it is calculated to confer an 鈥渆ducational benefit that is merely more than de minimis.鈥�
That was how Judge Neil M. Gorsuch of the 10th Circuit had described the standard in a 2008 decision, Thompson R2-J School District v. Luke P. In his opinion in that case, Gorsuch had cited an even earlier 10th Circuit case for the 鈥渕ore than de minimis鈥� language, but he added the word 鈥渕erely.鈥�
That wording has led to an ongoing debate about whether Gorsuch, President Donald Trump鈥檚 nominee for the vacancy on the Supreme Court, had taken an already-low bar and set it slightly lower. The nominee faced questions about the decision during his confirmation hearing, which was going on at the same time that the high court released its decision.
In setting aside the 鈥渕ore than de minimis鈥� standard in the Endrew F. decision, Chief Justice Roberts said that 鈥渇or children with disabilities, receiving instruction that aims so low would be tantamount to 鈥榮itting idly ... awaiting the time when they were old enough to drop out,鈥� 鈥� quoting from Rowley.
For a child fully integrated into the regular classroom, an IEP typically should be 鈥渞easonably calculated to enable the child to achieve passing marks and advance from grade to grade,鈥� Roberts said. For a child not fully integrated into the regular classroom and for whom grade-level advancement is not a reasonable prospect, an IEP must be 鈥渁ppropriately ambitious,鈥� providing the child the chance to 鈥渕eet challenging objectives,鈥� he wrote.
The high court declined an invitation from lawyers for Endrew F. and some special education advocates to establish a higher standard, one that would require children with disabilities to be provided an education 鈥渟ubstantially equal to the opportunities afforded children without disabilities.鈥� That standard had been rejected in Rowley as unworkable, and the chief justice said the court was not going to deviate from that earlier analysis.
A 鈥榃orkable鈥� Standard
Sen. Patty Murray of Washington state, the ranking Democrat on the U.S. Senate education committee, said the ruling 鈥渟ends a critically needed message: Every child deserves the opportunity to reach their full potential and receive a high-quality public education. With this ruling, the court has rightly reaffirmed Congress鈥� intent in [the IDEA] to hold schools accountable for providing students with disabilities meaningful educational benefit from the instruction and services they receive.鈥�
Ruthanne M. Deutsch, who helped write a friend-of-the-court brief on the school district鈥檚 side by education groups that included AASA, the School Superintendents Association, said the phrasing of the 鈥渕erely more than de minimis鈥� standard 鈥渨as especially jarring to the ear. That wording looks bad and sounds bad.鈥�
Speaking at a District of Columbia Bar Association event a few days after the decision, Deutsch said she took heart that the Supreme Court avoided 鈥渢asking courts to make qualitative judgments about educational methods鈥� of school districts.
John W. Borkowski, who helped write a friend-of-the court brief filed in support of the school district by the Council of the Great City Schools, which represents large urban districts, said in an interview that the standard set forth in this case was 鈥渨orkable.鈥濃��
鈥淭he court was quite careful, I think, to repeat its caution that courts shouldn鈥檛 second-guess the professional judgment of educators. I think that sort of deference is important,鈥� Borkowski said. 鈥淚 think it鈥檚 important the court suggested that there鈥檚 not any guaranteed outcome for any student.鈥�
