U.S. Supreme Court Weighs Level of Benefit Required in Special Education

By Mark Walsh — January 11, 2017 4 min read
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The U.S. Supreme Court on Wednesday spent an hour wrestling over a handful of words and phrases that could help set a standard for the level of benefit that school districts nationwide must provide to students in special education.

“What is frustrating about this case and about this statute is that we have a blizzard of words,” Justice Samuel A. Alito Jr. said late in the oral arguments in Endrew F. v. Douglas County School District (Case No 15-827), referring to words such as “significant” and “meaningful.”

“If you read them literally, it’s not clear to me they mean anything different,” Alito said. “What everybody seems to be looking for is the word that has just the right nuance to express this thought.”

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. (See my colleague Christina A. Samuels’s preview story.)

Jeffrey L. Fisher, a Stanford University law professor representing the family, told the court that the Individuals with Disabilities Education Act “does not permit a school district to provide a child with a disability a barely more than de minimis educational benefit.” He was referring to language used by a federal appeals court in the case.

“Rather,” Fisher continued, “what 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.”

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 “a program that is reasonably calculated to make significant educational progress in light of the child’s circumstances,” he said, adding that the administration would differ from Fisher’s proposed standard in that “we would say significant progress toward grade-level standards, not as close as possible to grade-level standards.”

And finally, the court heard from Neal K. Katyal, a Washington lawyer representing the Douglas County district. He is defending a ruling last year by the U.S. Court of Appeals for the 10th Circuit, in Denver, that provided that court’s interpretation of a 1982 Supreme Court decision, in Board of Education of the Hendrick Hudson Central School District v. Rowley.

Under Rowley, a “free, appropriate public education” under the IDEA must confer “some educational benefit” on the student. The 10th Circuit court defined “some educational benefit” as requiring a benefit that is “merely more than de minimis,” or trivial, which is a lower standard than some other federal appeals courts have applied, such as a “meaningful benefit.”

“We think ‘more than de minimis,’ which is what almost every circuit is using right now, has worked and it follows naturally from the ‘some benefit’ language in Rowley,” Katyal said.

Any change in the standard for the level of educational benefit required for a free, appropriate public education was a matter for Congress, not the court, to decide, Katyal said. “If this court were to change the standard, you know, it would invite all sorts of litigation,” he said.

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.

“Do you think that costs should be measured against the possible results to be achieved?” Justice Anthony M. Kennedy asked Gornstein. Not in the usual special education case, Gornstein replied.

Justice Stephen G. Breyer told Fisher that “the problem that’s working in my mind is if we suddenly adopt a new standard, all over the country we’ll have judges and lawyers and people interpreting it differently, and so why isn’t the present situation sufficient?”

Fisher said that everyone agrees “that the IEP process has to be followed. ... The difficulty is that it just doesn’t happen.”

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. said that Katyal was “reading the Rowley standard as requiring ‘some benefit,’ and the other side is reading it as saying ‘some benefit.’” The chief justice’s emphases on the differing words brought laughter in the courtroom.

“And it makes a difference,” Roberts continued. “And one reason I think that it’s problematic for you is because Rowley just doesn’t say ‘some benefit.’ It tells you what it is. And it’s enough benefit to keep track with grade progress. And if that’s what the standard is, that’s certainly more than—you know—'slightly more than de minimis’.”

Justice Elena Kagan pressed Katyal on his view that the “some educational benefit” standard of Rowley has, as Katyal put it, “been interpreted in court after court to actually have bite.”

“Do you favor a standard with bite?” she asked him.

The Rowley standard “does have some bite,” Katyal said.

Playing on the chief justice’s example of a few minutes earlier, Kagan then asked Katyal, “Would that be ‘some bite’? Or ‘some bite'?” That also drew laughter.

“It is ‘some educational benefit’,” Katyal said. “That’s the language of Rowley. And if you disagree with it, Congress can change it.”

“Well,” Kagan replied, “if somebody said to you, write a standard with bite, I doubt you would come up with the words ‘more than merely de minimis’.”

A decision in the case is expected by late June.

A version of this news article first appeared in The School Law Blog.