Law & Courts

A Year Ago the Supreme Court Raised the Bar for Special Ed. What’s Happened Since?

By Christina A. Samuels — April 27, 2018 5 min read
Jeffrey L. Fisher argues at the U.S. Supreme Court in favor of a higher standard for what’s required on behalf of students with disabilities in the case of Endrew F. v. Douglas County School District. The high court ruled unanimously last year in favor of that position.

A year after the U.S. Supreme Court ruled that schools must offer students with disabilities an education reasonably calculated to enable them to “make progress appropriate in light of the child’s circumstances,” what has changed?

On the one hand, not much, if evaluating the dozens of special education cases that have cited Endrew F. v. Douglas County School District, which was decided March 22, 2017.

Around 90 percent of those kinds of disputes between school districts and parents were decided in favor of districts; the notable exception was that of Endrew F. himself, the teenager with autism who was at the center of the Supreme Court case.

The high court’s unanimous decision sent Endrew’s case back to a lower court, and the judge that had decided in favor of the Colorado district reversed himself in February, saying that the school system did not meet the new educational standard.

His parents and the Douglas County district have reached a settlement on the district court’s order of reimbursement and attorney fees, and the parties are in the process of finalizing the agreement, said Jack D. Robinson, the lawyer representing Endrew and his parents.

Mulling the Impact

But while the case may not have had an immediate legal impact, advocates say the fact that the Supreme Court grappled with the purpose of a special education has had benefits that are less tangible.

“For me, the whole experience is something that I’ll never forget,” said Kristin Kane, who helped found the Decoding Dyslexia Virginia movement and was present at the oral arguments a year ago. “Even just the excitement of the Supreme Court taking this case and listening to it, validates that there is merit in these really hard discussions that happen every day.”

The case before the Supreme Court focused on a narrow point of law: How much benefit should special education provide to students with disabilities?

In 2010, Endrew’s parents pulled him out of his Colorado district because, they contended, his individualized education program, or IEP, was not designed to help him progress. The parents argued that the district should be required to pay private school tuition for the young man, who goes by Drew.

An administrative-law judge, a federal district judge, and the 10th Circuit Court of Appeals all decided against the parents. The appeals-court ruling in August 2015 said that Drew was gaining “some” educational benefit from his IEP. Referring to an earlier case in the same circuit, the court also said the Individuals with Disabilities Education Act requires that special education only offer a more than “de minimis,” or trivial, benefit.

The Supreme Court case turned that around.

“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,” wrote Chief Justice John G. Roberts Jr.

Special education advocates, and U.S. Secretary of Education Betsy DeVos, said the case would prompt higher standards for students with disabilities.

“Tolerating low expectations for children with disabilities must end. Challenging children with disabilities empowers them, and doing so gives them the hope of living successful, independent lives,” DeVos wrote in a Commentary for Education Week.

Few Changes

But school districts are not losing cases because of the new Endrew F. standard, said Perry Zirkel, a professor emeritus of education and law at Lehigh University, who has been tracking the impact of the case. Forty-nine cases were decided by a judge who cited Endrew F. and applied its standard that a special education program must be “reasonably calculated to enable a child to make progress in light of the child’s circumstances.” Of those, 44 saw no change in the decision, and in 37 of those cases, the decision was for the school district. In two cases, the case was sent back for further evaluation.

In three cases, the decision was reversed. But on one occasion, a decision that had been in favor of the parents was reversed, with the district prevailing under the Endrew F. standard.

In several situations, judges said that local practices already met the standard outlined by the Endrew F. case, Zirkel noted.

“Anyway you slice it, it hasn’t changed the trends,” he said. “The same folks are still winning—the districts.”

Those findings match what Catherine Merino Reisman, a lawyer who represents parents in special needs cases and works out of Haddonfield, N.J., has seen.

“It’s only been a year, and it’s going to take some time for the lower courts to apply Endrew,” she said. Reisman said that judges in the federal judicial circuit where she works say that its “meaningful benefit” standard is equivalent to that laid out by the high court. Reisman thinks that the Supreme Court case offers more specific guidance than just “meaningful benefit.”

There does seem to be a difference before cases ever make it to court, Reisman said. Parents are able to cite the case’s standards when they are talking with school staff members and drafting IEPs.

“It definitely has focused the discussion much more clearly on what it is we’re supposed to be doing for these kids with disabilities,” she said.

Phyllis Wolfram, the director of special education for the Springfield, Mo., school district, said that her interpretation of the decision was that it matches up well with what districts already are trying to do for students with disabilities.

“It wasn’t a major shift in the way we’re doing business,” said Wolfram, the incoming president of the Council of Administrators of Special Education.

But the case offered a chance to make sure that school personnel are collaborating with parents and that they are, indeed, creating ambitious academic standards. Wolfram is particularly mindful of the need to solicit meaningful parent input in crafting a child’s education plan.

“We forget, especially those of us who have been in the field for a long period of time, that it takes time for teachers and parents to understand every aspect of that. It’s a pretty complex law,” Wolfram said.

For Kane, the Virginia advocate who witnessed the Supreme Court argument, the fact that districts are winning most court cases is not a surprise. In her experience, districts will generally choose to settle cases unless they are almost positive they can win, she said.

But it’s important to continue to have a conversation about what high expectations are for students with disabilities, she said.

“Just the fact that it’s being heard,” Kane said, “is progress.”

A version of this article appeared in the May 02, 2018 edition of Education Week as Spec. Ed. Community Assesses Legal Impact After Landmark Case

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