Special Education

Supreme Court Firms Up Goal Posts on Spec. Ed. Rights

By Christina A. Samuels & Mark Walsh — April 04, 2017 6 min read
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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.

“I think this will be a kick in the pants, and this decision will matter,” 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. “Now, the circuit courts are going to have to give a little more meat to this standard.”

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.

Key Takeaways: Endrew F. Ruling

The U.S. Supreme Court’s 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’ opinion was informed by the Supreme Court’s seminal decision interpreting the federal special education law, 1982’s 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 “free, appropriate public education” under the IDEA if the child’s individualized education program “is reasonably calculated to enable the child to receive educational benefits.” The court declined to set any particular test for determining when children are receiving sufficient educational benefits, saying that question presents a “difficult problem.”
  • 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 “merely more than de minimis.” Roberts said a student offered an IEP under that standard “can hardly be said to have been offered an education at all.”
  • The IDEA requires an educational program “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” Roberts said. For a child fully integrated into the regular classroom, an IEP typically should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 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 “appropriately ambitious,” providing the child the chance to “meet challenging objectives,” 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 “to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” Roberts said such a standard was at odds with the court’s analysis in Rowley.

Source: Education Week

Kathleen Sullivan, the chief counsel for the Colorado Association of School Boards, said in a statement that the decision sets forth a path that “is not a radical alteration” of the standard under an earlier Supreme Court decision and “will not disrupt the significant body of case law that has developed.”

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.

“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.

“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.”

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 “which amounts to barely more than nothing.”

“We’re 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,” said the parents, who have declined to be fully identified to protect their family’s 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.

“Notably, the court did not hold that the Douglas County school district failed to meet the new standard, or say that DCSD can’t proceed to prove that it met that standard in the Endrew F. matter,” said William E. Trachman, the district’s staff legal counsel. “Indeed, 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.”

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 “it is not the district’s burden to pay for his placement there when Drew was making some progress under its tutelage. That is all that is required.”

The Addition of ‘Merely’

The appeals court cited the Supreme Court’s 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 “some educational benefit.”

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’s IEP is adequate as long as it is calculated to confer an “educational benefit that is merely more than de minimis.”

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 “more than de minimis” language, but he added the word “merely.”

That wording has led to an ongoing debate about whether Gorsuch, President Donald Trump’s 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 “more than de minimis” standard in the Endrew F. decision, Chief Justice Roberts said that “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,’ ” quoting from Rowley.

For a child fully integrated into the regular classroom, an IEP typically should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade,” 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 “appropriately ambitious,” providing the child the chance to “meet challenging objectives,” 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 “substantially equal to the opportunities afforded children without disabilities.” 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 ‘Workable’ Standard

Sen. Patty Murray of Washington state, the ranking Democrat on the U.S. Senate education committee, said the ruling “sends 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’ intent in [the IDEA] to hold schools accountable for providing students with disabilities meaningful educational benefit from the instruction and services they receive.”

Ruthanne M. Deutsch, who helped write a friend-of-the-court brief on the school district’s side by education groups that included AASA, the School Superintendents Association, said the phrasing of the “merely more than de minimis” standard “was especially jarring to the ear. That wording looks bad and sounds bad.”

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 “tasking courts to make qualitative judgments about educational methods” 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 “workable.”


“The court was quite careful, I think, to repeat its caution that courts shouldn’t second-guess the professional judgment of educators. I think that sort of deference is important,” Borkowski said. “I think it’s important the court suggested that there’s not any guaranteed outcome for any student.”

A version of this article appeared in the April 05, 2017 edition of Education Week as High Court Ruling Firms Up Goal Posts on Spec. Ed. Rights

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