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FROM THE KNOWLEDGE BANK
In the case that many hope will settle once and for all the level of educational benefit that is required by the Individuals with Disabilities Education Act (IDEA), the Supreme Court heard oral arguments in Endrew F. v. Douglas County School District on January 11, 2017. The justices appeared eager to provide clarity, peppering counsel with questions designed to parse through years of accumulating ambiguity and hone in on the specific requirements of the Act and the Court’s own precedent on IDEA.
At issue is the standard that public schools must meet in order to provide a “free appropriate public education” to children with disabilities. Must there be a “just-above-trivial,” a “meaningful,” or some other measurable educational benefit? Different standards have been applied in different jurisdictions, creating vastly different educational experiences for students covered by IDEA. Disagreement between the federal courts has left the quality of educational benefit that a child with disabilities receives dependent upon the school district.
In Endrew, the Tenth Circuit held that a de minimus, or just-above-trivial, educational benefit was all a school district need provide, denying Endrew’s parents’ claim for reimbursement of tuition costs they incurred when they sent him to a private school that specialized in educating children with autism. (Click here for our prior article on this case.)
Referring to the language of the Act itself and the Court’s decision in Board of Education of the Hendrick Hudson Central School District v. Rowley,458 U.S. 176 (1982) the justices’ questions conveyed little enthusiasm for supporting the low “just above de minimis standard,” while raising concern about costs that could arise from complying with IDEA.
Though costs were not the focus of the hearing, Justices Kennedy and Alito wondered whether school districts might incur unreasonable financial burdens under the Act. Jeffrey Fisher, counsel for Endrew, said that Congress specifically intended for school districts to provide students with disabilities a fair appropriate public education regardless of cost. Arguing as amicus curiae, Solicitor General Irv Gornstein largely concurred, stating that Congress had taken costs off the table except, perhaps, in the most extreme cases.
The greater struggle came with finding a clear standard that carries out the Act’s mandate. The justices spent much of their time clarifying what an “appropriate” education means when dealing with an array of potential disabilities. They tried to get past what Justice Alito called the “blizzard of words” used to describe the IDEA’s standard, words that meant the same thing yet conveyed no helpful direction. They sought to precisely define the standard that several justices agreed was more than simply de minimus.
Drilling down, Justices Breyer, Alito, and Kagan explored how an “equal” education could be provided to the entire range of disabilities. Mr. Fisher contended that the amended IDEA requires schools to provide an “equal educational opportunity” for children with disabilities, or an “equally challenging curriculum on the academic side” to meet their functional and developmental goals.
Mr. Gornstein recommended a standard that requires educational progress. He agreed that words such as “significant” and “meaningful” just add to the confusion. Instead, he suggested that an Individual Education Plan (IEP) must be “reasonably calculated to make progress that is appropriate in light of the child’s circumstances.”
Neal Katyal’s argument on behalf of Douglas County School District met with more resistance from the justices, who seemed unconvinced by his points. Mr. Katyal argued that judicial review under IDEA is on procedural grounds -- that is, the process by which the IEP is created -- not on the substance of the IEP itself. When pressed on the substantive requirements of the Act, he contended that an IEP need merely provide “some benefit,” something just above de minimis.
Asking who invented the de minimus standard, Justice Ginsburg noted that it did not come from the Court in Rowley. “Well, I think that it came directly from the circuits right after Rowley,” answered Mr. Katyal.
Mr. Fisher had the last words. Responding to Justice Alito’s question, “putting aside the words, are the outcomes appropriate, or do you think the lower courts need a kick?” Mr. Fisher replied, “I think they need a kick. I think the outcomes are quite scattered.” Then, repeating his earlier reference to section 79A of the Act itself, he concluded by stating that IEPs must establish alternative achievement benchmarks that “reflect professional judgment as to the highest possible standards achievable by” students with disabilities.
The challenge now, as Justice Sotomayor said, is for the Court to come up with the words “that would be less confusing to everyone.”
For the transcript of the oral argument, click here.
For more on the oral argument from the New York Times, click here.