06 Oct Why Advocates Hope the Supreme Court Will Save Special EducationOctober 6, 2016
By: Mark Keierleber
Despite being separated only by the Hudson River, a disabled child who lives in New York City could have a dramatically different life than one who grows up just a few miles to the west in a neighboring New Jersey suburb.
In New York, a student with autism could receive special education services that are just above “trivial.” Yet in New Jersey, courts hold schools to a higher standard.
This disparity is at the heart of the argument Colorado attorney Jack Robinson will make before the U.S. Supreme Court in what’s seen as a potentially pivotal case. Robinson maintains that for 34 years, federal circuit courts have been “in disarray” over the level of special education services a school is required to provide its students under the federal Individuals With Disabilities Education Act.
The law states that schools must provide disabled students a “free appropriate public education” in the least-restrictive environment through individualized education programs that are tailored to their needs each year. The court will be asked to clarify whether a school district satisfies the law when it provides a student with “some” educational benefit.
Across the country, disability rights advocates have rallied around the case as a potential win for America’s 6.5 million students who receive specialized help through their IEPs.
The last time the high court addressed the issue was back in 1982 in a case known as Rowley. The court determined then that a public school must provide disabled students with “some educational benefit” but that schools were not required to maximize a student’s potential. The justices also declined to establish a single test to determine if the level of education being provided is sufficient under the law.
That decision was “vague,” Robinson argues, and federal circuit courts have been at odds ever since in trying to determine what it means.
The Supreme Court agreed to accept the new case, known asEndrew, last week. It centers on a boy who attended public school in Colorado’s Douglas County from preschool through fourth grade with an IEP for autism. But beginning in second grade, his behavior began to deteriorate at school. Regularly, teachers removed him from the classroom because he would yell, cry and drop to the floor.
Arguing that the child made “minimal progress” toward his fourth-grade IEP goals and that his fifth-grade goals had not been individually calculated to provide him with “an educational benefit,” his parents withdrew him from public school and placed him in a private special needs school, an expensive alternative they want the school district to pay for.
Although the family and school officials agreed that the private school was an appropriate placement, where he made “academic, social and behavioral progress,” they disagreed about whether it was necessary. After the family sued, the 10th Circuit Court of Appeals found for the school district, ultimately upholding that federal special education law requires schools to guarantee “some” educational benefit. The 10th Circuit judges acknowledged that some other circuit courts have adopted a higher standard.
Two circuit courts have ruled that IEPs must provide students a “meaningful educational benefit,” according to the appeal to the Supreme Court; five others have rejected this higher standard, holding that IDEA requires a “just-above-trivial educational benefit.” Three additional circuits appear to agree with the lower standard, and the Ninth Circuit is split, with different panels aligning with opposing standards. The circuit court in Washington, D.C., has not described the level of benefit IDEA requires.
Because courts have applied different standards, Robinson argues that the amount of help students with disabilities receive can depend largely on where they live. Further, amendments since the 1982 ruling have expanded the federal law’s scope, he said, and the higher standard more closely aligns with IDEA’s mission. The Obama administration agrees.
“There is no justification for providing children with disabilities different degrees of protection under federal law depending on where they happen to live,” Acting U.S. Solicitor General Ian Gershengorn wrote in August in his urging the court to take up the case.
The federal government also moved swiftly this week to make sure special education students in Texas were not arbitrarily being denied services. On Monday, the U.S. Department of Education told Texas state officials they must eliminate a special ed enrollment target unless they can prove children with disabilities are not being deprived of services.
The DOE’s action came just weeks after a Houston Chronicleinvestigation found that the state penalized school districts that provided special education services to more than 8.5 percent of their students, effectively denying support to tens of thousands of eligible children. Nationally, about 13 percent of public school students have IEPs.
“If Texas can’t say to me, ‘Yeah, we captured 8.5 percent and we put in all of these resources to support our teachers, and our data now shows children included in general education classes with these disabilities are really thriving,’ then it’s a cap to save money,” said Mimi Corcoran, president and CEO of the National Center for Learning Disabilities.
The “some” versus “meaningful” benefit debate for special education services also revolves around money.
“The Rowley decision has been instructive for more than 30 years, so it is possible the Supreme Court could issue a decision that would disrupt the significant body of case law that has developed,” Kathleen Sullivan, chief counsel of the Colorado Association of School Boards, said in an email. “If the Court were to radically alter Rowley, schools could see a dramatic increase in costs to meet whatever the higher standard would be as well as litigation to redefine that standard.”
When Congress established the federal special education law in 1975, it committed to provide states with 40 percent of the funding necessary to establish adequate programming. However, lawmakers never fulfilled their promise, and federal funds hover at just 16 percent.