Education Week - April 5, 2017 - 21

Advocates, Districts Parse High Court's Spec. Ed. Ruling
Individuals with Disabilities Education Act that most districts were
already exceeding.
Kathleen Sullivan, the chief counsel for the Colorado Association of
School Boards, said in a statement
that the decision sets forth a path
that "is not a radical alteration" of
the standard under an earlier Supreme Court decision and "will not
disrupt the significant body of case
law that has developed."
Both sides can find some support
for their views in the opinion by
Chief Justice John G. Roberts Jr. for
a unanimous eight-member court.
"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," Roberts said.
"The IDEA demands more," the
chief justice said. "It requires an
educational program reasonably
calculated to enable a child to make
progress appropriate in light of the
child's circumstances."

A Dispute Over Progress
Joe and Jennifer F., the parents of
Endrew F., the student with autism
who is at the center of the case, released a statement saying that, from
the start, they felt it was wrong that
the Douglas County, Colo., school
district was only required, under the
rulings of lower courts, to offer an
education "which amounts to barely
more than nothing."
"We're very hopeful that this clarified standard that the court has articulated is workable for both parents and schools moving forward.
Families should not have to fight
this hard to get their kids what they
deserve and are entitled to by federal law," said the parents, who have
declined to be fully identified to protect their family's privacy.
A lawyer for the 67,000-student
Douglas County district, located between Denver and Colorado Springs,
said the school system is confident
that it already meets the standard
outlined by the Supreme Court and
that the district will prevail in further proceedings in the case.
"Notably, the court did not hold
that the Douglas County school
district failed to meet the new standard, or say that DCSD can't proceed to prove that it met that standard in the Endrew F. matter," said
William E. Trachman, the district's
staff legal counsel. "Indeed, in this
case, the Douglas County school
district offered an appropriate individualized education plan, and we
look forward to proving to the lower
courts that the IEP meets the new,
higher standard."
Endrew, called Drew in court
papers, is now 17. The case began
when he was still in elementary
school. He started to exhibit serious
behavior problems, and by the end
of 4th grade his behavior had deteriorated to the point where he was
making only minimal progress on
his educational goals.
His parents argued that the in

Getty

CONTINUED FROM PAGE 1

KEY TAKEAWAYS:
ENDREW F. RULING
The U.S. Supreme Court's March
22 decision in Endrew F. v.
Douglas County School District,
in a unanimous opinion by Chief
Justice John G. Roberts Jr., has
potentially far-reaching effects
for how school districts provide
services under the Individuals
with Disabilities Education Act.

n Roberts' opinion was informed by the Supreme Court's seminal decision
interpreting the federal special education law, 1982's Board of Education of the
Hendrick Hudson Central School District v. Rowley. In that case, the court said
a child with a disability has received a "free, appropriate public education"
under the IDEA if the child's individualized education program "is reasonably
calculated to enable the child to receive educational benefits." The court
declined to set any particular test for determining when children are receiving
sufficient educational benefits, saying that question presents a "difficult
problem."
n In its opinion in Endrew F., the court rejected a standard adopted by the
U.S. Court of Appeals for the 10th Circuit that an IEP is adequate as long as
it provides a benefit that is "merely more than de minimis." Roberts said a
student offered an IEP under that standard "can hardly be said to have been
offered an education at all."
n The IDEA requires an educational program "reasonably calculated to enable
a child to make progress appropriate in light of the child's circumstances,"
Roberts said. For a child fully integrated into the regular classroom, an IEP
typically should be "reasonably calculated to enable the child to achieve
passing marks and advance from grade to grade." For a child not fully
integrated into the regular classroom and for whom grade-level advancement
is not a reasonable prospect, an IEP must be "appropriately ambitious,"
providing the child the chance to "meet challenging objectives," the court said.
n The opinion rejected an argument put forth on behalf of Endrew F. that
would require schools to provide students with disabilities the opportunity "to
achieve academic success, attain self-sufficiency, and contribute to society
that are substantially equal to the opportunities afforded children without
disabilities." Roberts said such a standard was at odds with the court's
analysis in Rowley.
SOURCE: Education Week

dividualized education program
the district developed for 5th grade
was offering Drew just more of the
same. They withdrew him from public school, enrolled him in a Denver
private school called Firefly Autism
House, and sought, under established precedents under the IDEA,
reimbursement for the tuition.
The parents lost their case before an administrative-law judge, a
federal district judge, and the U.S.
Court of Appeals for the 10th Circuit, in Denver.
The appeals court held that "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."

The Addition of 'Merely'
The appeals court cited the Supreme Court's seminal 1982 case
interpreting the original version of
the IDEA, Board of Education of the

Hendrick Hudson Central School
District v. Rowley, saying that the
decision merely required an IEP to
provide "some educational benefit."
The appellate court also said it
was relying on a 10th Circuit precedent that had interpreted that
passage of Rowley to mean that a
child's IEP is adequate as long as
it is calculated to confer an "educational benefit that is merely more
than de minimis."
That was how Judge Neil M.
Gorsuch of the 10th Circuit had described the standard in a 2008 decision, Thompson R2-J School District
v. Luke P. In his opinion in that case,
Gorsuch had cited an even earlier
10th Circuit case for the "more than
de minimis" language, but he added
the word "merely."
That wording has led to an ongoing debate about whether Gorsuch,
President Donald Trump's nominee
for the vacancy on the Supreme
Court, had taken an already-low bar

and set it slightly lower. The nominee faced questions about the decision during his confirmation hearing, which was going on at the same
time that the high court released its
decision. (See related story, Page 15.)
In setting aside the "more than de
minimis" standard in the Endrew F.
decision, Chief Justice Roberts said
that "for children with disabilities,
receiving instruction that aims so
low would be tantamount to 'sitting
idly ... awaiting the time when they
were old enough to drop out,' " quoting from Rowley.
For a child fully integrated into
the regular classroom, an IEP typically should be "reasonably calculated to enable the child to achieve
passing marks and advance from
grade to grade," Roberts said. For
a child not fully integrated into the
regular classroom and for whom
grade-level advancement is not a
reasonable prospect, an IEP must be
"appropriately ambitious," providing

the child the chance to "meet challenging objectives," he wrote.
The high court declined an invitation from lawyers for Endrew F. and
some special education advocates
to establish a higher standard, one
that would require children with
disabilities to be provided an education "substantially equal to the opportunities afforded children without disabilities." That standard had
been rejected in Rowley as unworkable, and the chief justice said the
court was not going to deviate from
that earlier analysis.

A 'Workable' Standard
Sen. Patty Murray of Washington state, the ranking Democrat on
the U.S. Senate education committee, said the ruling "sends a critically needed message: Every child
deserves the opportunity to reach
their full potential and receive a
high-quality public education. With
this ruling, the court has rightly
reaffirmed Congress' intent in [the
IDEA] to hold schools accountable
for providing students with disabilities meaningful educational benefit
from the instruction and services
they receive."
Ruthanne M. Deutsch, who helped
write a friend-of-the-court brief on
the school district's side by education groups that included AASA, the
School Superintendents Association,
said the phrasing of the "merely more
than de minimis" standard "was especially jarring to the ear. That wording looks bad and sounds bad."
Speaking at a District of Columbia Bar Association event a few days
after the decision, Deutsch said she
took heart that the Supreme Court
avoided "tasking courts to make
qualitative judgments about educational methods" of school districts.
John W. Borkowski, who helped
write a friend-of-the court brief
filed in support of the school district
by the Council of the Great City
Schools, which represents large
urban districts, said in an interview
that the standard set forth in this
case was "workable."
"The court was quite careful, I
think, to repeat its caution that
courts shouldn't second-guess the
professional judgment of educators.
I think that sort of deference is important," Borkowski said. "I think
it's important the court suggested
that there's not any guaranteed outcome for any student."

EDUCATION WEEK | April 5, 2017 | www.edweek.org | 21

http://www.edweek.org

Education Week - April 5, 2017

Table of Contents for the Digital Edition of Education Week - April 5, 2017