Education Week - May 2, 2018 - 14

GOVERNMENT & POLITICS
Spec. Ed. Community
Assesses Legal Impact
After Landmark Case
By Christina A. Samuels
A year after the U.S. Supreme
Court ruled that schools must offer
students with disabilities an education reasonably calculated to enable
them to "make progress appropriate
in light of the child's circumstances,"
what has changed?
On the one hand, not much, if
evaluating the dozens of special education cases that have cited Endrew
F. v. Douglas County School District,
which was decided March 22, 2017.
Around 90 percent of those kinds
of disputes between school districts
and parents were decided in favor of
districts; the notable exception was
that of Endrew F. himself, the teenager with autism who was at the center of the Supreme Court case.
The high court's unanimous decision sent Endrew's case back to a
lower court, and the judge that had
decided in favor of the Colorado district reversed himself in February,
saying that the school system did not
meet the new educational standard.
His parents and the Douglas
County district have reached a settlement on the district court's order
of reimbursement and attorney fees,
and the parties are in the process of
finalizing the agreement, said Jack
D. Robinson, the lawyer representing
Endrew and his parents.

Mulling the Impact
But while the case may not have
had an immediate legal impact, advocates say the fact that the Supreme
Court grappled with the purpose of
a special education has had benefits
that are less tangible.
"For me, the whole experience is
something that I'll never forget," said
Kristin Kane, who helped found the
Decoding Dyslexia Virginia movement and was present at the oral
arguments a year ago. "Even just
the excitement of the Supreme Court
taking this case and listening to it,
validates that there is merit in these
really hard discussions that happen
every day."
The case before the Supreme Court
focused on a narrow point of law:

How much benefit should special
education provide to students with
disabilities?
In 2010, Endrew's parents pulled
him out of his Colorado district because, they contended, his individualized education program, or IEP,
was not designed to help him progress. The parents argued that the
district should be required to pay
private school tuition for the young
man, who goes by Drew.
An administrative-law judge, a
federal district judge, and the 10th
Circuit Court of Appeals all decided
against the parents. The appealscourt ruling in August 2015 said
that Drew was gaining "some" educational benefit from his IEP. Referring to an earlier case in the same
circuit, the court also said the Individuals with Disabilities Education
Act requires that special education
only offer a more than "de minimis,"
or trivial, benefit.
The Supreme Court case turned
that around.
"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," wrote Chief Justice John G. Roberts Jr.
Special education advocates, and
U.S. Secretary of Education Betsy
DeVos, said the case would prompt
higher standards for students with
disabilities.
"Tolerating low expectations for
children with disabilities must end.
Challenging children with disabilities
empowers them, and doing so gives
them the hope of living successful,
independent lives," DeVos wrote in a
Commentary for Education Week.

Few Changes
But school districts are not losing
cases because of the new Endrew
F. standard, said Perry Zirkel, a
professor emeritus of education and
law at Lehigh University, who has
been tracking the impact of the
case. Forty-nine cases were decided
by a judge who cited Endrew F. and
applied its standard that a special

Art Lien

A year out, Endrew F. ruling leaves imprint

education program must be "reasonably calculated to enable a child to
make progress in light of the child's
circumstances." Of those, 44 saw no
change in the decision, and in 37 of
those cases, the decision was for the
school district. In two cases, the case
was sent back for further evaluation.
In three cases, the decision was
reversed. But on one occasion, a decision that had been in favor of the
parents was reversed, with the district prevailing under the Endrew F.
standard.
In several situations, judges said
that local practices already met the
standard outlined by the Endrew F.
case, Zirkel noted.
"Anyway you slice it, it hasn't
changed the trends," he said. "The
same folks are still winning-the
districts."
Those findings match what Catherine Merino Reisman, a lawyer who
represents parents in special needs
cases and works out of Haddonfield,
N.J., has seen.
"It's only been a year, and it's
going to take some time for the
lower courts to apply Endrew," she
said. Reisman said that judges in
the federal judicial circuit where she
works say that its "meaningful benefit" standard is equivalent to that
laid out by the high court. Reisman
thinks that the Supreme Court case
offers more specific guidance than
just "meaningful benefit."
There does seem to be a difference
before cases ever make it to court,
Reisman said. Parents are able to
cite the case's standards when they
are talking with school staff members and drafting IEPs.

"It definitely has focused the discussion much more clearly on what
it is we're supposed to be doing for
these kids with disabilities," she said.
Phyllis Wolfram, the director of
special education for the Springfield,
Mo., school district, said that her
interpretation of the decision was
that it matches up well with what
districts already are trying to do for
students with disabilities.
"It wasn't a major shift in the way
we're doing business," said Wolfram,
the incoming president of the Council
of Administrators of Special Education.
But the case offered a chance to
make sure that school personnel are
collaborating with parents and that
they are, indeed, creating ambitious
academic standards. Wolfram is particularly mindful of the need to solicit
meaningful parent input in crafting
a child's education plan.
"We forget, especially those of us
who have been in the field for a long
period of time, that it takes time for
teachers and parents to understand
every aspect of that. It's a pretty complex law," Wolfram said.
For Kane, the Virginia advocate
who witnessed the Supreme Court
argument, the fact that districts are
winning most court cases is not a
surprise. In her experience, districts
will generally choose to settle cases
unless they are almost positive they
can win, she said.
But it's important to continue to
have a conversation about what high
expectations are for students with
disabilities, she said.
"Just the fact that it's being heard,"
Kane said, "is progress."

Jeffrey L. Fisher argues at the
U.S. Supreme Court in favor of
a higher standard for what's
required on behalf of students
with disabilities in the case of
Endrew F. v. Douglas County
School District. The high court
ruled unanimously last year in
favor of that position.

We forget, especially those of us who have been in the field for a long period of time,
that it takes time for teachers and parents to understand every aspect of that. It's a pretty complex law."
PHYLLIS WOLFRAM
Director of Special Education, Springfield, Mo.

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