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Tuesday, April 4, 2017

Special Education and the Quantum of Solace

From the Special Education Law Prof Blog

By Jonathan D. Glater
March 29, 2017

“A reviewing court may fairly expect (school) authorities to be able to offer a cogent and responsive explanation for their decisions.”

Difference creates challenges. Treating people who are different the same can be unfair; treating people who are similar differently can be unfair. The trick is determining what fairness requires under given conditions.

Special education inevitably demands this determination. Under federal law, the Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.) or “IDEA,” schools that receive federal support must provide a “free appropriate public education” or “FAPE” to students with disabilities. But just what is “appropriate” – how much a school must do to support a disabled student – has been a subject of controversy for many years.

Last week the Supreme Court waded into this area for the first time in decades in Endrew F. v. Douglas County School Dist. RE-1. The unanimous opinion was cogently analyzed in a prior post produced virtually instantly by Professor Mark C. Weber at DePaul University College of Law; this follow-up reflects on the implications of the Court’s words.

The justices decided explicitly for the first time that students whom IDEA aims to assist must receive a benefit that is more than “minimal.” The Court held that the lower courts, which had ruled that the public school defendants had provided an adequate education to the plaintiff because he had made “some progress” – i.e., any progress – had used the wrong standard to reach their conclusion.

The correct standard, according to the Court, is this: the school must provide an individualized education plan that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Perhaps because Endrew F. could have come out very differently, Education Week reported that advocates for children with disabilities viewed the Court’s opinion as a “clear win.” The Court could have espoused the view that any amount of progress, however small, constituted progress and thus would satisfy the FAPE mandate.


Certainly that is the direction the majority opinion in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), the Court’s last tussle with IDEA, pointed.

In Rowley, a majority of the justices rejected the notion that IDEA required states to “maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.’” 458 U.S. 176 at 189-90 (internal citations omitted).

The opinion, authored by Justice Rehnquist, instructed that schools had to provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”

From this language, it is easy to see how the lower court judges who heard Endrew F.’s case might have thought that any benefit at all satisfied the Rowley standard.

While the Court’s opinion in Endrew F. provides clarification and reassures that a standard higher than de minimis does apply, it does a bit more besides. Most importantly, the justices appear to have accepted Rowley’s limited aspiration; the Court has accepted that requiring perfect equality of opportunity is too much to ask.

There are practical reasons not to require schools to take whatever steps, provide whatever support, is necessary to give a child with a disability or multiple disabilities the same opportunities as a student who lacks them. The Court could have alluded to this practical constraint, instead of suggesting that the (unattainable) target sought through the law should be lowered, and then struggled with the question of how close schools must get to the ideal. The justices did not take this path.

The path that they did choose looks like it may give schools more say in determining when a student receives an adequate education. Why? Because officials at the school are best placed, the Court instructs, to assess what progress is appropriate in light of a child’s circumstances.

The Court, in the penultimate paragraph of its decision, speaks of “deference... based on the application of expertise and the exercise of judgment by school authorities,” and suggests that a “reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions.”

If lower courts hearing parents’ challenges to schools’ proposed individualized education plans do show schools greater deference, it seems likely that those challenges will become more difficult and more expensive. Children whose parents are less sophisticated, less well-off, and/or have less access to expertise may be correspondingly less able to mount a successful challenge.

However, the efforts of relatively empowered parents will have “ripple effects” that improve the educational experiences of other students, too, as Professor Weber has pointed out. Educational opportunity is not necessarily in limited supply, whatever the Court’s limited conception of “adequacy.”

Now we will see what the lower courts do with Endrew F. on remand.

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