Cross-posted by the School Law Blog
By Mark Walsh
The U.S. Supreme Court on Tuesday asked the Obama administration to weigh in on whether it should grant review in a special education case about the level of education benefit required under federal law. Meanwhile, the administration has filed a brief urging the justices to take up another special education case, one involving Wonder, the goldendoodle service dog.
The case in which the justices issued an order on Tuesday, Endrew F. v. Douglas County School District RE-1 (No. 15-827), raises an important question about which federal appeals courts are divided: What level of educational benefit must a child receive under his or her individualized education program to satisfy the demands of the main federal special education law.
The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled in the case of a Colorado child with autism that because the child’s public school IEP provided him with “some educational benefit,” the Douglas County district had provided a “free, appropriate public education” under the Individuals with Disabilities Education Act. (The 10th Circuit court thus rejected a private school reimbursement for the parents of the boy identified as Endrew F., who had pulled him from public school after the dispute over his 5th grade IEP.)
In its August 2015 decision, the 10th Circuit court panel acknowledged that several other courts of appeals have adopted a higher standard that requires an IEP to result in a “meaningful educational benefit.”
“The courts of appeals are in disarray over the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education under the IDEA,” says the appeal filed on behalf of Endrew F. and his parents by his Denver lawyers and the Supreme Court Litigation Clinic at Stanford Law School. “This court should use this case—which cleanly presents the legal issue on a well-developed set of facts—to resolve the conflict over this important question.”
The Supreme Court on May 31 did what it does in many IDEA cases that seemingly present a question worth taking up—it asked the U.S. solicitor general’s office to provide its views.
The solicitor general’s office is under no particular deadline to file a brief, and it would seem unlikely that a response would come before the court adjourns for the summer.
Meanwhile, the Obama administration recently filed a brief in another special education case in which the justices asked for its advice.
In that case, involving a young Michigan girl with cerebral palsy who was seeking to use her service dog, Wonder, at school, the solicitor general’s office said the court should hear the family’s appeal, and that it should ultimately rule for the family.
As I explained in January, when the court sought the solicitor general’s views in Fry v. Napoleon Community Schools (No. 15-497), the legal question in the case is bit more technical than the dispute over whether “Wonder” may accompany and help the girl, Ehlena Fry, at school.
The legal question is whether a 1986 federal statute, the Handicapped Children’s Protection Act, requires families to exhaust procedures under the IDEA when they are suing under a couple of other federal laws—the Americans with Disabilities Act of 1990 or the Rehabilitation Act of 1973. Those latter statutes provide for damages, which the IDEA does not.
In a brief filed on May 20, the solicitor general’s office said the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, was incorrect when it ruled last year the Fry family must exhaust procedures under the IDEA when they brought claims under the ADA and Rehabilitation Act.
Because the federal appeals courts are split on their interpretations of that issue, the solicitor general recommends that the court grant review in the case.
What does all this have to do with Wonder, the service dog? Officials at Fry’s school refused to allow the girl to bring Wonder to school (though they briefly relented for a period of a few months). So Fry’s parents removed the girl from the Napoleon public schools and sued under the ADA and the Rehabilitation Act. Because Fry enrolled in a different public school district that welcomed Wonder, the case appears to be primarily about damages sought under those two federal disability statutes.
The Supreme Court is likely to decide before the end of its term whether to accept the case for argument, which would be for its next term.
A version of this news article first appeared in the On Special Education blog.