On Wednesday, January 11, 2017, a student with autism, Drew, got his day in court –
– not just any court, but the Supreme Court of the United States. It’s a story that began years ago, a story you will be able to identify with. Drew went to a public school from preschool thru 4th grade. He had an IEP and we know that means he’s entitled to a Free Appropriate Public Education.
Starting in second grade Drew’s behavior changed and teachers had to remove him from class frequently. He was making little progress at school. This continued for a couple of years. When Drew’s parents saw his proposed IEP for fifth grade all they saw was a repeat of what had been written on his IEP for many years.
They made the decision to enroll him in a private school that specialized in educating children with autism. They later asked the district to reimburse them for the private school costs. The school district argued that Drew had made some educational progress when he was in the district and therefore, were not obligated to pay for his private school education.
he parents went through due process and appealing it to lower courts – all of these decisions sided with the school district. With the help of their attorney, Jack Robinson they appealed to the Supreme Court and their case was accepted. Keep your eye on this case, Endrew F. v. Douglas County School District. You can get email updates from the Supreme Court about the case. Click here to sign up for those. Email me at Charmaine@cspeda.com” target=”_blank” data-mce-href=”mailto:Charmaine@cspeda.com” class=”validating” style=”color: rgb(119, 169, 175);”>Charmaine@cspeda.com if you would like the links to listen to the case or see the written transcripts.
Let’s first look back at what happened in 1982 when the Supreme Court looked at what was considered an appropriate education for students with disabilities. You probably have heard of the Rowley case. A young girl, Amy Rowley who had a hearing disability. She used hearing aids. Her parents requested a sign language interpreter for her at school. She was doing well in school, but not as well as she could have if she had had a sign language interpreter.
The Court stated that the child’s individualized educational program (IEP) should be reasonably calculated to enable the child to receive educational benefit. The Justices also declined to set a single national way to determine if the education provided under IDEA is sufficient.
What we have seen since the Rowley case in 1982 is an inconsistent interpretation of the level of educational benefit that Districts are required to provide. Out of the 12 regional circuits there are:
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2 Circuit Courts use “meaningful educational benefit” as the standard
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5 Circuit Courts use “just above trivial” as the standard
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3 Circuit Courts side with the lower standard
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1 Circuit Court is split
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The District of Columbia hasn’t considered the issues
The parents’ position in this case is that Rowley doesn’t take into account the changes in IDEA when it was reauthorized in 1997 and 2004 and the changes in federal education policy. They contend students need more than access, they need to make progress.
In contrast, the school district’s position is that the question of what is the required level of educational benefit has already been settled in Rowley. In that 1982 case, it stated that a child’s individualized educational program (IEP) should be reasonable calculated to enable the child to receive educational benefit.
The attorney speaking on behalf of the student, Jeffrey Fisher said in his oral argument to the Supreme Court Justices that IDEA requires a program that is reasonably calculated to provide him educational opportunities that are substantially equal to those offered to other students.
Justice Kennedy voiced concern about the costs of such an education. Justice Breyer was worried about creating a standard that could be interpreted differently by districts and parents.
Chief Justice Roberts and Justice Kagan asked about students who because of their disabilities may not be able to follow general education curriculum. Attorney Fisher explained that IDEA has language that speaks to alternative benchmarks for some students.
The attorney that spoke next was Irv Gornstein, who argued for the U.S. government. He stated that IDEA requires a program that is aimed at significant educational progress in light of the child’s circumstances.
Are you beginning to see the variety of adjectives being used to by different attorneys and in different court cases to describe the type of meaningful education students with disabilities are supposed to get?
I think Justice Sotomayor hit the nail on the head. This is the dilemma that parents and schools have been facing for many years!
When Neil Katyal, the attorney for Douglas County School District tried to equate the requirement of the IEP to provide some benefit with the “more than merely de minimis” standard.
By the way, I looked up de minimis and it means, too trivial or minor to merit consideration, especially in law.
Chief Justice Roberts replied by saying using “some benefit” as a standard is problematic because of court cases that say IEPs must give “enough benefit to keep track with grade progress” Roberts noted that would have to be more than “de minimis.”
Justice Beyer spoke up and stated that IEPs need to allow the child to make progress in general education. He said a combination of “some benefit” and “make progress” are more stringent than what the school district was arguing for.
The attorney for the district argued that “more than de minimis” standard has been in place and it hasn’t been a really low standard. Hmmm, any parent believe that?
It was interesting for me to see who was supporting the parents’ position:
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more than 100 current and former Democratic members of Congress stated that the district’s low standard is contrary to IDEA. Many of these Congress people were the ones that reauthorized IDEA in 1997 and 2004. They know the language that was amended in IDEA.
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U.S. Government, through the solicitor general’s office state the school district’s position doesn’t embrace high expectations, but instead just de minimus.
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Many disability advocacy groups, such as Council for Parent Attorneys and Advocates, which I’m a proud member of.
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National Education Association
The organizations supporting the district’s position were:
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Council of Great City Schools – includes the country’s 70 largest urban school districts.
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Coalition of school administrator groups
Thursday, Jan. 19th we will have a special guest on our show, Angela Jarvis-Holland. Angela is the dynamic Executive Director of the Northwest Down Syndrome Association and Co-Coordinator of the fabulous Cross-Disability Inclusion Conference, All Born In.
Thank you for caring and for being a part of this community. As a parent who had to do a lot of advocating for my son, as a retired teacher who knows the possibilities our schools have for helping all students be successful, and as a professional advocate who works with families everyday helping them advocate so their child gets the education he/she deserves, I’m cautiously optimistic that the 8 Supreme Court Justices will make a decision that will have a positive impact on our children.
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