Wednesday, January 11, 2017

Disability Rights at the Supreme Court

The line to get in for oral arguments

I spent my morning at the Supreme Court listening to oral arguments in the special education case Endrew F v. Douglas County School District.  It's a critical case for our community, with implications for anyone who has a child with disabilities or who needs access to special education.

First, a bit of background:  a federal law called the Individuals with Disabilities Education Act (IDEA) requires that (in return for federal funding) states provide disabled students with a "free and appropriate public education" (commonly referred to as FAPE - get ready, the blizzard of acronyms is just starting).  To carry out their mandate, school and district officials must partner with parents to come up with an individualized education program (IEP).  The IEP sets goals for the student for the year, against which the school can test progress.  

Now, for many kids, even getting to that point is a struggle and having an IEP put in place is a victory in and of itself.  However, the case before the Court today confronted a different question: what are the school's obligations to students who fail to make substantial progress on their IEP goals, despite the accommodations offered by the school?  Courts have, of course, confronted this question in the past, but answers have been mixed.  

The first Supreme Court case on the matter was Board of Ed. v. Rowley.  The student at issue in the Rowley case was making solid progress toward her educational goals, but was not meeting her full potential.  She was a deaf student who had been provided with a hearing aid, but whose parents were requesting a sign language interpreter in class.  The Court in Rowley declined to set forth a standard that would require schools to "maximize the potential of" their students.  Instead, the Court set forth the following standards for courts reviewing FAPE claims:
[A] court's inquiry in suits brought under § 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act?  And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?   If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

The lower federal circuits split on the meaning of this standard, with most settling on a reading that the law required that students be provided with "some educational benefit" that is “merely. . . more than de minimis.”  Since the Rowley decision, congress has revisited the statute twice, enhancing procedural protections for parents but not changing the language requiring provision of a FAPE. The question in Endrew is whether this "more than de minimus" standard is sufficient to guarantee that students receive a FAPE.  Given the discussion in the Court this morning, I'm cautiously optimistic that the Court will move away from the de minimus standard.

When I finally got in (security at the Court is serious) arguments had already begun and the Justices were focused on resolving outstanding questions they had related to the facts, rather than the legal framework. For a good discussion of the underlying facts, the petitioner's brief is helpful, starting on page 8.

When the justices did eventually turn to the framework, there was much discussion of alternatives to the "de minimus" standard. Endrew's counsel argued that various amendments to IDEA pointed to the conclusion that the FAPE standard obligates schools to "provide children with disabilities 'substantially equal opportunities' to achieve academic success, attain self-sufficiency and contribute to society."

The acting Solicitor General, Heath Gershengorn, followed the petitioners and argued on behalf of the United States that the de minimus standard was not sufficient.  IDEA, the United States argued, requires that states provide students with the opportunity to make "significant educational progress."

Although these standards were both clearly more rigorous than a de minimus standard, counsel for the school district argued that the inconsistency between petitioners' position and that of the government was telling: they're asking the court to make up a new standard, he argued, a job best left to congress. Further, the school district argued that there was not even a real conflict for the Court to resolve.  Most circuits had decided that "more than de minimus" was an appropriate standard that, as applied, provided students with some educational benefit, as required by Rowley. 

However, the District's counsel fell into a bit of a trap when answering a question from the Chief Justice.  Both parties agree that, under Rowley, a student must receive some benefit, but does that mean some benefit, or does that mean some benefit? In other words, does the Rowley test ask whether the student is receiving a marginal benefit, or does it ask whether whatever benefits the student is receiving are. . . actually beneficial?  The District appeared to agree that there had to be an actual meaningful benefit to the student, but fell back on the argument that the de minimus standard was being applied to ensure that actual benefits were provided in most cases.  

This admission, however, begs the question: if the de minimus standard doesn't mean what it says, how can it be the appropriate standard?

Most justices seemed to believe the law required that students receive actual, meaningful, benefits, and nearly all appeared to agree that the de minimus standard did not accurately represent what the law required.  Although I had expected arguments tailored closely to the ears of Justice Kennedy, this was the rare case where I saw substantial potential for cross-partisan alignment.  Some of the School District's arguments about limitations on spending clause legislation (which were largely brushed aside by the Court) could possibly appeal to Thomas and Alito, but Justice Roberts repeatedly turned away from those arguments and back to attempts to craft a standard that would accurately reflect the language of the statute.

I would be surprised if the de minimus standard survives, and that is good news for students who need accommodations from their schools.