When the U.S. Supreme Court made its first substantive interpretation in 1982 of the main federal special education law, it was careful to say that courts should not impose their own view of education adequacy upon states and districts for children covered by the law.
In that case, Board of Education of the Hendrick Hudson Central School District v. Rowley, the court created a definition of a “free, appropriate public education” in the special education arena that has stood for decades. Under the definition, special education must confer “some educational benefit.”
But in a case set to be argued Jan. 11, the court is weighing in on what “some” should mean. The question at hand: What level of educational benefit must school districts provide to students with disabilities in order for them to receive that free, appropriate public education under the Individuals with Disabilities Education Act?
At the center of the latest case, Endrew F. v. Douglas County School Board, (Case No. 15-827), is a 17-year-old Colorado student with autism, called “Drew” in court briefs. His parents contend that the individualized education program created for him by the Douglas County district did not offer him an educational benefit.
The 66,000-student school district argued—and several courts agreed—that the district’s educational program was appropriate.
But the U.S. Court of Appeals for the 10th Circuit, in Denver, added another element to the debate when it rendered its verdict in August 2015. The appeals court said that the school district was responsible only for offering “some educational benefit,” using the terminology from Rowley, and went on to define that as “merely more than de minimis,” or trivial.
“It just seemed so preposterous. How could having a child achieve so little be sufficient? It just doesn’t make sense,” said Drew’s mother, Jennifer, in an email interview in advance of the Jan. 11 argument. The parents in this case have asked to remain anonymous to protect their privacy.
The Obama administration agrees with Drew’s parents. The IDEA should be understood to offer special education students a chance at “significant educational progress,” it said in a friend-of-the-court brief. That’s an ambitious goal, but a realistic one, the Justice Department argues.
More than ‘Trivial’ Benefit
The school district and organizations that filed friend-of-the-court briefs on its side said that the parents and federal government are advocating for a new and unworkable standard.
“Neither petitioner nor the government says what, under their standards, [Drew’s] 5th-grade IEP ought to have said. And if they cannot say, it is hard to imagine how a court could,” the district said in its brief.
The Obama administration urged the U.S. Supreme Court to take up the case Endrew F. v. Douglas County School Board because of what it says are different standards set by different federal appeals courts for the level of benefit that special education is supposed to provide. However, attorneys for the Douglas County, Colo., school district say that the differences reflect semantics, not different standards. Here are the terms that have been used in different rulings:
U.S. Court of Appeals for the 3rd Circuit, Philadelphia
“Just as Congress did not write a blank check, neither did it anticipate that states would engage in the idle gesture of providing special education designed to confer only trivial benefit. ... [W]e hold that Congress intended to afford children with special needs an education that would confer meaningful benefit.”
Polk v. Central Susquehanna Intermediate Unit 16, 1988.
U.S. Court of Appeals for the 8th Circuit, St. Louis
“It is true that experts for both [the plaintiff, K.E.] and the District testified at the administrative hearing that the assessment and [behavioral intervention plan] were deficient in some respects; but given that K.E. enjoyed more than what we would consider ‘slight’ or ‘de minimis’ academic progress, we cannot conclude that those deficiencies denied K.E. the benefit of her educational programming.”
K.E. v. Independent School District No. 15, 2011.
U.S. Court of Appeals for the 6th Circuit, Cincinnati
“[Board of Education of the Hendrick Hudson Central School District v. Rowley] is the only Supreme Court decision to have addressed the level of educational benefit that must be provided pursuant to an [individualized education program]. Nothing in Rowley precludes the setting of a higher standard than the provision of ‘some’ or ‘any’ educational benefit.”
Deal v. Hamilton County Board of Education, 2004.
U.S. Court of Appeals for the 4th Circuit, Richmond, Va.
“In this circuit, the standard remains the same as it has been for decades: a school provides a [free, appropriate public education] so long as a child receives some educational benefit, meaning a benefit that is more than minimal or trivial, from special instruction and services.”
O.S. v. Fairfax County School Board, 2015.
And, the school district argues, if Congress had wanted to add language in the law to define the level of benefit that should be conferred by special education, lawmakers have had ample opportunity to do so in the 35 years since Rowley was decided.
The case is one of the most significant special education cases ever to be heard before the Supreme Court, said Antonis Katsiyannis, a professor of special education at Clemson University and a former president of the Council for Exceptional Children.
“This is going to set the stage, I hope, for the next however many years, because the Rowley standard stood for 30 years or more,” said Katsiyannis. About 6.5 million children ages 3-21 are covered under the IDEA.
The case began when Drew was still in elementary school. He started to exhibit serious behavior problems and went through periods of self-harming behavior, including head-banging and running away from school. By the end of 4th grade, Drew’s behavior had deteriorated to the point where he had made minimal progress on his educational goals. His parents argue that the individualized education program that the district developed for 5th grade was just offering more of the same. They withdrew him from public school, enrolled him in a Denver private school called Firefly Autism House, and argued that the district should be responsible for his tuition.
“We always knew it would be an uphill battle, that parents don’t usually prevail when going against their school district,” Drew’s mother said. “But no, I never thought it would go this far. I remember before we even started, I was advised not to start down this road unless I was prepared to go to the Supreme Court. I absolutely did NOT want to go that far, but I didn’t see any other way to get Drew what he needed.”
Drawing on Rowley, the 10th Circuit said that Drew appears to be thriving at his private school, “but it is not the district’s burden to pay for his placement there when Drew was making some progress under its tutelage. That is all that is required.”
Split in the Circuits
The 10th Circuit itself drew attention to the fact that other circuits have used different terms to refer to the educational benefit that special education should confer. Some circuits have chosen to use the term “meaningful educational benefit"—though the difference between “some” and “meaningful” is not clear, the 10th Circuit ruling noted.
But that difference in terminology was apparently enough for the Supreme Court to decide to hear the case. And even though Drew’s parents had lost at several steps along the way, they gained a powerful supporter in the Obama administration.
In its brief, the administration argues that the term “meaningful” is “most sensibly understood to obligate states to offer each eligible child an opportunity to make significant educational progress, in light of his particular needs and capabilities.” For students who are fully included in regular classrooms, that should be taken to mean an opportunity to master grade-level content. Other students with more severe disabilities should be given an opportunity to make progress “that is appropriate in light of their own particular needs and capabilities.”
Attorneys for the parents say schools must afford children with disabilities “substantially equal opportunities” to achieve academic success and self-sufficiency.
The parents and the Justice Department are trying to stretch IDEA beyond what the law really requires, the school district and its supporters argue.
From the school district’s brief: “All the government can say for sure is that schools should ‘enable eligible children to make progress that is appropriate in light of their own particular needs and capabilities.’ But telling courts that an ‘appropriate’ education means a ‘significant’ one, which in turn means an ‘appropriate’ one, hardly helps them draw a principled line.”
The school district and its attorney declined to be interviewed on the record.
Meaningful Difference?
Perry A. Zirkel, a professor of education and law at Lehigh University, said the court could determine that the IDEA should provide a “meaningful” benefit to students with disabilities, instead of the “some” terminology that was favored by the 10th Circuit in its ruling.
“To me, that would be largely a symbolic victory,” Zirkel said. “When we look at the way courts apply both alternatives, it doesn’t seem to be a consistent significant difference.”
If the court were to determine that special education should provide what he called a “substantial” or “significant” benefit, however, that’s a difference that could shift the balance in some educational disputes, Zirkel said.
Drew, still in private school, has made strong academic progress, his mother said.
“To think about him as a 4th grader when this all started, well, he’s just so different now. Socially, he has not made as many huge leaps. I really don’t have any regrets about his private school experience, but I do wish he had been able to stay in school with his local peers and build those friendships,” she said.
The school district and its allies say that the parents are fighting an issue that doesn’t exist. School districts routinely create strong academic programs for students with disabilities, and no school sets out to offer an educational program that only clears the “trivial” bar. They say that the Elementary and Secondary Education Act, along with the procedural safeguards written into the IDEA and a general push towards high standards, ensures the protections that the parents in this case are asking for without introducing additional oversight by non-educators.
“You have the Rowley standard. Why fix it if it’s not broken, especially if the fix is going to cause some problems of its own?” said Ruthanne Deutsch, the author of a brief written on behalf of AASA, the School Superintendents Association, the Council of Administrators of Special Education, and other educational organizations.
Drew’s mother said that may be true, but that her fight is on behalf of the parents who don’t believe their children are getting the education that they are entitled to under the IDEA.
“It may very well be true that most school districts are providing a more than trivial, beneficial, free and appropriate public education already to their special education students. I hope that’s the case,” she said. “What I do hope will change is the outcome for those parents that are having difficulties with the services their school is providing. I’d hope the school would actively work with them to find the best solution for the child.”
