This is the unanimous Supreme Court decision about what standard for services schools need to provide to students with disabilities under the federal law, the IDEA.
Here are some of my musings…..
First, many headlines about this decision seemed to highlight a “win” for students with disabilities. For example, http://www.npr.org/sections/ed/2017/03/22/521094752/the-supreme-court-rules-in-favor-of-a-special-education-student https://www.bing.com/search?q=endrew%20f.%20v.%20douglas%20county%20decision%20washington%20post&qs=n&form=QBRE&sp=-1&pq=endrew%20f.%20v.%20douglas%20county%20decision%20washington%20post&sc=0-52&sk=&cvid=E7B3D93F12014A24B842955DCBBCD39E
I’m not so sure. As a school attorney, I did not see it that way. I saw it as a workable restatement of current practice. That practice—defining a free appropriate public education (FAPE) for students with disabilities—was determined more than 30 years ago by the Supremes in Rowley v. Board of Education (1982). In short, a student’s program needs to “be reasonably calculated to provide educational benefits.” Here, the Court upheld that standard. In fact, the Court highlighted the fact that Rowley applies and that Congress, even after more than 30 years, has not amended or raised it.
Second, this decision was NOT about the 6 1/2 million students who receive special education under federal law, the IDEA. By far, most of these students study the general education standards. For them, Rowley applies. Indeed, while plaintiffs sought a higher standard, it’s important to note that the Court did NOT overrule Rowley and did not change the standard. This decision focused on students like Endrew F. whose progress is not being measured by grade level or similar standardized benchmarks.
Third, let’s remember that the Supreme Court took this dispute in an effort to resolve differences among the Circuit Courts of Appeals in the nation. Because many states, such as Massachusetts where I practiced law, already have a higher ‘meaningful benefit’ standard for a FAPE, it’s hard to see how this decision will make a difference and many of my fellow school attorneys don’t believe it will. Some states, as described in the 10th Circuit decision about a Colorado school district had a lower ‘de minimis’ standard. The Supreme Court struck down that standard. For students like Endrew F., a school’s program needs to be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”
Fourth, the Court gave great deference to the expertise of school personnel. I see this as vital–since undoubtedly this decision will not settle the matter. Various groups are now reading what they want into it—like a Rorschach test! Unfortunately, we’ll have disputes and lawsuits about all the words the Court used for years to come. Having great deference where it belongs–in school personnel expertise—is a plus and should help resolve disputes.
Fifth, the Court rejected the parents’ high standard of an ideal, maximizing, or equal program. In short, it followed Rowley and clarified it for a subset of students with disabilities.
Much more can be said about this decision, but I’ll stop here. As I see it, the decision was reasonable and workable for schools and parents alike, not a one-sided parent victory, as so many media reports seemed to imply.
In upcoming next blog I will explore two fascinating issues that I see in this decision. First, whether it’s time, finally, to divide the community of students served by this law into two groups—those served under the Rowley standard and those under Endrew F.
And second, let’s explore if, in emphasizing that a student like Endrew F’s progress needs to be based on his circumstances, does this decision lead us to question standardized testing and accountability (with all the imperfections of those tests and administration, including complex accommodation policies) for these students.
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