High court rules public schools must do more to educate special-needs kids

By Caitlin Emma, March 22, 2017

The Supreme Court ruled Wednesday that school districts must go the extra mile to accommodate students with disabilities in a unanimous decision that could dramatically expand the rights of special education students.

All eight justices sided with the Colorado student in the case, Endrew F. v. Douglas County School District, in one of the most significant special education cases in decades. Endrew was diagnosed with autism and his parents feel his public school and individualized education program had failed him. They sought reimbursement for the cost of sending him to private school.

The ruling is a major victory for special education advocacy groups. The higher standard has been endorsed by the Obama administration, more than 100 current and former Democratic members of Congress and a host of special education advocates. However, school officials have warned that imposing higher standards could be prohibitively expensive.

In 1982, the Supreme Court ruled that an individualized education program should provide students with “some educational benefit. Since then, several lower court rulings have essentially adopted that standard, including one written by Supreme Court nominee Neil Gorsuch, holding that a child must show minimal gains from an individualized education plan for a school to have complied with the law.

Questioned about the high court ruling handed down during his confirmation hearing, Gorsuch said his own opinion was "wrong" and "I'm sorry" for it — but that he had been bound by precedent. "If anyone is suggesting that I like a result where an autistic child happens to lose, that’s a heartbreaking accusation to me. Heartbreaking," he added.

The Individuals with Disabilities Education Act requires public schools to provide students with disabilities a “free appropriate public education” — commonly called the FAPE requirement. But lower courts have split on what that means. Chief Justice John Roberts wrote for the court that a “child’s education program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.”

“The goals may differ, but every child should have the chance to meet challenging objectives. This standard is more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.”

Roberts declined to interpret that FAPE provision or elaborate on “appropriate" -- "mindful that Congress has not materially changed the statutory definition of a FAPE since Rowley was decided."

But he said the requirement must be “an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Endrew’s parents told the Douglas County School District in Colorado they were withdrawing him from public school where he had gone through kindergarten through fourth grade, and sending him to a private school that specializes in teaching children with autism and where he achieved far more. They sought reimbursement for his private education. The school district countered that because Endrew made some progress in an individualized education program, he had received a free appropriate public education under the scope of federal law. School District Legal Counsel William Trachman said in a statement Wednesday that the district is "confident that the work we do for our students already meets this higher standard."

".. .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."

The Council of Parent Attorneys and Advocates, an advocacy group, meanwhile, hailed the ruling as “transformative in the lives of the students and families for whom the law is intended to benefit.” And the National Center for Learning Disabilities said it hoped it would "prompt long overdue discussions between parents and educators about how to reach these ambitious goals.”

But others predicted the ruling would spur new dilemmas for public school leaders and parents.

"Everyone wants what is best for the child, but trying to deliver 'above appropriate' let alone appropriate creates the dilemma," said Jack McKay, executive director of the Horace Mann League and a former school superintendent. "As a result of today’s Supreme Court decision, I think we are heading back to the lower courts and try to figure out what is “above appropriate” for the particular child’s handicapping condition.

During oral arguments in January, Roberts and Justice Samuel Alito both asked about the potential financial burden that a higher bar might place on schools and districts. An attorney representing Endrew’s parents contended that huge bills, for instance, for districts footing private school tuition, would be a rarity.

Francisco Negrón, chief legal officer at the National School Boards Association, said school districts will likely have to reexamine their educational programs in light of the decision. He said he hoped the ruling doesn’t create undue costs and confusion.

“Special education is very expensive for school districts to provide,” Negrón told POLITICO last month. If the court sets a higher bar, "districts would have to potentially look at every student’s individual plan and modify it.”

Troy Flint, a spokesman for the California School Boards Association, said the court's decision will require more of schools at a time when the federal government has been "delinquent on special education."

Federal education funding has been flat, and President Donald Trump has proposed keeping it that way, he said. Federal funding is only a small part of the billions that California spends on students with disabilities.

"This is compounding a situation where the federal government isn’t living up to its promises," he said.

http://www.politico.com/story/2017/03/supreme-court-special-education-236363

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