Examining the Standards for Special Education

Supreme Court grapples with appropriate level of benefit


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SUMMER 2017 / VOL. 17, NO. 3

Joshua Dunn joins EdNext Editor-in-chief Marty West on the EdNext Podcast to discuss the impact the Endrew F. v. Douglas case could have on students with disabilities.


On January 11, 2017, the U.S. Supreme Court heard oral arguments in the most significant special-education case in 35 years, Endrew F. v. Douglas County School District. Even as the justices seemed to favor increasing education benefits for disabled children, they expressed deep uncertainty about whether the court is the appropriate institution to accomplish that aim.

Endrew F. (Drew), an autistic child in Douglas County, Colorado, showed severe and increasing behavioral problems from preschool through 4th grade. Dissatisfied with his lack of progress under his Individualized Education Program (IEP), his parents withdrew him from public school in 2010 and enrolled him in a private school specializing in serving autistic students. He made significant gains in the new school and is now a 17-year-old high-school student learning vocational skills.

Drew’s parents believed that under the Individuals with Disabilities Education Act (IDEA) they were entitled to reimbursement from the Douglas County School District for the cost, $70,000 per year, of Drew’s private education. The school district, they argued, was not providing Drew with the “free appropriate public education” required by IDEA, thus qualifying him for placement in a private program.

The school district disagreed. While Drew was not making significant progress, he was making some progress and that was all the law required. The district pointed to a 1982 Supreme Court decision, Board of Education v. Rowley, which held that schools must merely provide “some educational benefit” for children with disabilities. As long as an IEP was “reasonably calculated to enable the child to receive educational benefits,” the school district had complied with the law. Thus, the district contended, anything more than a trivial benefit was sufficient.

In response, Drew’s parents argued that revisions to IDEA since Rowley showed that Congress intended an IEP to provide a meaningful benefit that the minimal standard touted by the district would not satisfy. As well, while several federal circuits had followed Rowley, others had imposed a higher standard and still others had produced conflicting precedents.

Drew lost his case before an administrative law judge and before the Tenth Circuit Court of Appeals, leading to the Supreme Court showdown in January. At oral argument, the justices were torn. Even as they indicated that IDEA should require more than just “some benefit,” they seemed to have no idea how to articulate a clear alternative standard.

Several justices appeared to accept the argument that IDEA’s revisions required IEPs to provide more than some benefit. Justices Elena Kagan and Ruth Bader Ginsburg said they wanted to see a standard “with bite,” while Justice Stephen Breyer said the law seemed to require IEPs that enable a child to “make progress in the general education.” Chief Justice John Roberts also said that the court’s own precedents appeared to require that IEPs provide “enough benefit to keep track with grade progress.”

But even as they expressed dissatisfaction with the lower standard, the justices seemed equally troubled by the potential consequences of changing it. Justice Anthony Kennedy worried that a higher standard would impose unreasonable costs on school districts. Some justices wondered if the court would be able to articulate a stronger but still clear standard based on IDEA’s problematic language. “What is frustrating about this case and this statute is that we have a blizzard of words,” Justice Samuel Alito said. Even Justice Sonia Sotomayor, who said IDEA “provides enough to set a clear standard,” confessed that it would be difficult to come up with words “that would be less confusing to everyone.”

Because of the inevitable imprecision of a more generous standard, Justice Breyer worried that the court would invite more litigation: “I foresee taking the money that ought to go to children and spending it on lawsuits and lawyers and all kinds of things that are extraneous.” And he expressed concern about having “nine people” who “don’t know much about” education policy crafting standards out of “legal materials” far removed from the actual circumstances of particular students.

Unlike many high-profile cases, Endrew F. does not seem to have created the usual ideological split among the justices. That makes predicting what the court will do even more hazardous. No result would be surprising, including a tie. Considering what’s at stake—both for school districts and for students with disabilities—and the court’s obvious uncertainty, the justices could even decide that it would be better to rehear the case once the late Justice Antonin Scalia’s replacement has been seated. When you are on the horns of a dilemma, not deciding can be the most attractive option.

Joshua Dunn is professor of political science at the University of Colorado–Colorado Springs.

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