Unanimous Supreme Court Expands Scope of Special Education Rights

By Mark Walsh — March 22, 2017 5 min read
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The U.S. Supreme Court on Wednesday issued a major decision expanding the scope of students’ special education rights, ruling unanimously that schools must do more than provide a “merely more than de minimis” education program to a student with a disability.

In Endrew F. v. Douglas County School District, the high court rejected the “merely more than de minimis” standard set by the U.S. Court of Appeals for the 10th Circuit, in Denver. That language was also used in an opinion in another special education case by Judge Neil M. Gorsuch, President Donald Trump’s nominee for the Supreme Court.

Gorsuch has already faced criticism for his own ruling reflecting the “merely more than de minimis” standard, and he was questioned by the Senate Judiciary Committee about the Supreme Court’s ruling before the morning ended.

Chief Justice John G. Roberts Jr. wrote the opinion for the eight-member court, and he delivered much of it from the bench Wednesday morning.

“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” Roberts said.

“For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly ... awaiting the time when they were old enough to drop out,’” he added, quoting from key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, that also dealt with the Individuals with Disabilities Education Act.

“The IDEA demands more,” the chief justice said. “It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Higher Standard

That standard was the one suggested by President Barack Obama’s administration, in one of its final arguments before the justices in January.

The decision comes in the case of a Colorado student named Endrew F. whose autism led to behavioral issues in school. After four years in the Douglas County schools, near Denver, the boy’s parents believed his academic and functional progress had stalled. Endrew F.'s individualized education programs largely carried over the same educational goals and objectives from one year to the next, Roberts observed, “indicating he was failing to make meaningful progress toward his aims.”

The parents pulled the boy from public school amid a dispute over his 5th grade IEP and enrolled him a private school specializing in autism, the Firefly Autism House.

“Firefly ... added heft to Endrew’s academic goals,” the chief justice said. “Within months, Endrew’s behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school.”

Under established precedents, the family sought reimbursement from the Douglas County district for the private school tuition. They lost before a state administrative law judge, a federal district court, and the 10th Circuit.

The appeals court said that the Supreme Court’s Rowley decision merely requires an IEP to provide “some educational benefit.”

The appellate court said it was relying on 10th Circuit precedent that interpreted that passage of Rowley to mean that a child’s IEP is adequate as long as it is calculated to confer an “educational benefit that is merely more than de minimis.”

The appeals court then cited to the opinion by Gorsuch in a 2008 decision, Thompson R2-J School District v. Luke P. In his opinion in that case, Gorsuch had cited to an even earlier 10th Circuit case for the “more than de minimis” language, but he added the word “merely,” and that formulation was debated by the justices during oral arguments in Endrew F.

‘A General Formula’

The chief justice discussed the Rowley decision and said its reference to IEPs conferring “some educational benefit” and other language “in isolation do support the school district’s argument.”

“But the district makes too much of them,” Roberts said. “We cannot accept the school district’s reading of Rowley.”

Roberts said the “reasonably calculated” standard will not require an “ideal” IEP, but one that “must aim to enable the child to make progress.”

And “that the progress contemplated by the IEP must be appropriate in light of the child’s circumstances should come as no surprise,” he said. “A focus on the particular child is at the core of the IDEA.”

He said for children in special education who are in a regular classroom, an IEP should be reasonably calculated “to enable the child to achieve passing marks and advance from grade to grade.”

For a child for whom a regular classroom is not “a reasonable prospect,” the chief justice said, the educational program must be “appropriately ambitious in light of his circumstances.”

“Of course this describes a general standard, not a formula,” Roberts said. “But whatever else can be said about it, this standard is markedly more demanding than the ‘merely more than de minimis’ test applied by the 10th Circuit.”

Grilling Gorsuch

It didn’t take long for Democrats on the Judiciary Committee to raise the Endrew F. decision with Gorsuch. Sen. Richard Durbin of Illinois quoted from the chief justice’s opinion and called it “a powerful decision.”

He asked Gorsuch why, in his opinion in Thompson, he wanted to “lower the bar” to the “merely more than de minimis standard.”

Gorsuch said he had been handed the Endrew F. ruling “as I went to the bathroom a moment ago.”

He said his ruling in Thompson, which also had involved a student with autism, was based on 10th Circuit precedent, particularly a 1996 decision, Urban v. Jefferson County School District.

“If anyone suggests I like an outcome where an autistic child happens to lose, that is a heartbraking outcome to me,” Gorsuch said. “But the fact remains that I was bound by circuit precedent.”

Durbin pressed him on his addition of the word “merely,” in his Thompson opinion, to the “more than de minimis language” from that earlier 10th Circuit ruling, in Urban.

“Most people reading that would say you pushed the ‘de minimis’ [standard] further down, and so it was that word that was overruled by the Supreme Court,” Durbin said.

Gorsuch replied that the three-judge panel ruling in Thompson was unanimous, and that one member of the panel was appointed by a Democratic president. And again, Gorsuch said, the panel was following circuit precedent.

Later, Sen. Ted Cruz, R-Texas, addressed the issue with friendly questions to Gorsuch about whether he felt bound by 10th Circuit precedent in the Thompson case.

“My colleagues have repeatedly demanded that Judge Gorsuch follow precedent,” Cruz said. “This is another example of Judge Gorsuch doing exactly that—following precedent.”

He asked the nominee whether he would be bound to follow a Supreme Court decision that upset an appeals court precedent.

“Yes, senator.” Gorsuch said. “That’s how it works.”

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