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Supreme Court sets new standard for special ed, unanimously rejects minimal school progress

Carolyn Phenicie | March 22, 2017

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(Photo: Getty Images)

(Photo: Getty Images)

A united Supreme Court Wednesday set a new, more rigorous standard for special education services in the United States.

The unanimous decision in Endrew F. v. Douglas County School District will require school districts to offer individualized education programs “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

An attorney for the Colorado family who sued on behalf of their autistic son, called it “a game-changer.” The ruling has the potential to alter educational services provided to millions of children around the country, and the costs of those services to the many more millions of taxpayers who fund them.

The Individuals with Disabilities Education Act requires school districts to provide a free, appropriate public education to students with disabilities, laid out in individualized education programs written by the students’ parents and school district officials.

The standards for that education though were different depending on where a student lived. Some federal courts required a more meaningful education, but the majority said the acceptable measure of educational benefit was “merely more than de minimis” — in other words, just a little bit.

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Together, the eight justices who have made up the court since Justice Antonin Scalia’s death last year resoundingly rejected that lower standard.

“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,” Chief Justice John Roberts wrote for the court.

Jack Robinson, the attorney representing the Endrew family, said he was shocked the court reached a decision so quickly and without dissent. Although the court did not go so far as to adopt a “substantial equal opportunity” standard that the Endrew family had sought — one that would match that provided to students without disabilities — their main goal was to have the court “thoroughly denounce this lowest of the low.”

“By a Supreme Court rejecting that merely more than de minimis standard is sort of a game-changer,” Robinson said. “It’s going to shift a fair amount of leverage to parents, that they now have some sort of substantive rights under the IDEA, which in most of the circuits they really didn’t have before.”

An attorney representing the Douglas County school district could not be immediately reached for comment. During oral arguments in January, the school district’s lawyer, Neal Katyal, maintained that a new standard wasn’t needed, primarily because the current one, derived from a 1982 Supreme Court case, had “some bite.” He said procedural processes and reviews laid out in IDEA were sufficient to further guarantee an appropriate education for students.

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Setting a new standard would lead to a “huge morass” of lawsuits filled with controversial educational issues that generalist federal justices aren’t equipped to handle, he said. If the standard should be changed, Congress should do so, not the courts, he added.

Justices at oral arguments had seemed open to setting a new, higher standard, but were puzzled over what it should be. Several also expressed concern about increased litigation and mounting costs to school districts, making the unanimous ruling somewhat surprising.

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While not setting a specific higher standard, justices emphasized that what “appropriate” progress means will look different from case to case, and lower court judges shouldn’t take that lack of a “bright-line rule” as an invitation to substitute their ideas on educational policy for school authorities’.

For students fully integrated into mainstream classrooms, the standard means the IEP should be set to make sure the student passes classes and advances from grade to grade. For students like Endrew, who couldn’t be integrated into a regular classroom because his autism is severe, the IEP doesn’t have to show grade-level progress.

“But that child’s educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom,” Roberts wrote.

Francisco M. Negrón Jr., the general counsel at the National School Boards Association, said he was happy to see the court reached a “measured decision” in the case. Negrón said he was comfortable with the court’s rejection of the lower de minimis standard since schools aren’t in the business of providing de minimis education to children, and that while schools will have to reevaluate the services they provide, the court’s decision “should be within the operational sphere for schools to meet.”

Endrew had been enrolled in Colorado public schools for several years when his parents, feeling that he wasn’t making adequate progress, moved him to a private school and sued the Douglas County Schools for the tuition cost.

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The 10th Circuit Court, like many others around the country facing similar challenges, ruled for the school district, arguing that the little bit of progress Endrew made at the public school was enough to meet the burdens set out by IDEA.

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The Supreme Court’s ruling dropped simultaneous to Supreme Court nominee Neil Gorsuch’s second day testifying before the Senate Judiciary Committee. As a federal judge on the U.S. Court of Appeals for the same 10th Circuit in Denver, Gorsuch has ruled on several special education cases — some of which made disability rights advocates uneasy.

In 2008, for example, Gorsuch found a school district provided a free and appropriate education to a student with autism who had made little educational progress. IDEA, he wrote, only requires districts to provide educational benefits that “must merely be ‘more than de minimis” — a contradiction to Wednesday’s Supreme Court ruling.

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