Oral Arguments in Endrew F. before the United States Supreme Court, January 11, 2017
Maybe a landmark case in Special Education Law? We shall see.
As we reported in our “2016 Year in Review,” last month, the United States Supreme Court agreed to hear on January 11, 2017 oral arguments in the Colorado case of Endrew F. v. Douglas County School District. We believe that the Court taking this case is an indicator of the increasing importance of the special needs community, and we hope this case will resolve many years of ambiguity and a split in the circuit courts of appeals regarding what the educational standards the 1975 Individuals with Disabilities Education Act (IDEA).
The trial court and the federal 10th Circuit Court of Appeals held in this case (in agreement with some other circuits), that IDEA only requires the district to provide students with “some educational benefit”. Judges in some other federal circuits have held the IDEA requires more.
At oral argument on January 11th, counsel for the School District argued that the IDEA merely sets procedural requirements, and so long as the process was followed, there are no substantive criteria upon which to judge what the school district provides, other than “some benefit” which is “merely more than de minimus”. The trial court and the federal 10th Circuit Court of Appeals in this case agreed with the School District’s position. Although counsel for the School District avoided saying so directly, the import of his argument was that, so long as the procedures required by the IDEA are followed, the conclusions reached by the school district in effect are in effect not subject to judicial review.
Counsel for Endrew (along with the United States Solicitor General) made, in our view, a tight-knit statutory argument (1) for why the IDEA, as amended in 1997 and 2004, requires a substantive standard in addition to a procedural standard, (2) that the substantive standard had to be more than “some benefit,” and (3) what that standard should be, as follows:
(1) The IDEA requires the School District to provide a FAPE (free, appropriate public education).
(2) The IDEA definition of FAPE states that the school has to provide an education “in conformity with the IEP [Individualized Education Plan].”
(3) For children with disabilities who, after evaluation, are judged to be able to achieve grade level with supports, the statute requires that the IEP require the school district to provide those supports.
(4) For children with disabilities who, after evaluation, are judged not to be able to achieve grade level regardless of supports, the statute requires that the IEP establish “alternative achievement benchmarks” that “reflect professional judgment as to the highest possible standards achievable by the student.”
At one point, when counsel for the School District said that the IDEA only provided a procedural guarantee and did not set a substantive standard, Justice Kagan drove to the heart of the matter, saying:
That’s wrong. This is not just a procedural guarantee. Yes, the IDEA has lots of procedures in it, but they’re all geared towards a particular substantive result. And it’s that substantive result that’s the focus of the – both the administrative process and then judicial review of what comes out of the administrative process.
The justices had clearly researched the issues prior to oral argument and asked thoughtful questions. The justices pressed both sides hard with their concerns. However, the concerns expressed to counsel for Endrew were in the nature of identifying exactly what standard to adopt consistent with the IDEA that would not result in further ambiguity and an explosion in litigation. But the concerns expressed by the Court to counsel for the School District were that it was simply an incorrect reading of the IDEA, as amended, to conclude that there were procedural but no substantive standards, and to conclude that the substantive standard of “merely more than de minimus” met the requirements of the statute.
Oral arguments can be very misleading when trying to predict the outcome of a case. However, we are optimistic from the justices’ questions and the lawyers’ responses that the
Court will find that the IDEA requires a meaningful, substantive standard, something like what counsel for Endrew is advocating.
Many of our clients and readers of this blog and our newsletters may have experienced something similar with their school district. IEP meetings have become more about the procedural rules than the substantive discussion of a TEAM coming together to set goals and benchmarks for their student with disabilities. At the last TEAM meeting I attended, the SPED department TEAM leader spent the entire time typing on her laptop and barely looked up at all of us. She collected signatures on the sign-in sheets and various forms and releases. She discussed procedural safeguards and she reviewed the data sheet to be sure it was all correct. Each person from the child’s team discussed the progress and goals recommended for their professional category and she typed it all in. When we tried to open up a discussion of certain areas like transition, she wanted to move us along because the meeting was getting too long.
We need to move away from the paper pushing and towards the goal of collaboration in IEP meetings to set goals that encourage our students to achieve their fullest potential.