Supreme Court oral argument in a special education case in which the Law Center submitted amicus briefs took place on January 11th, 2017. The case, Endrew F. v. Douglas County School District RE-1, is about special education and the degree of educational benefit required under Free Appropriate Public Education.
In the discussion that ensued in the oral argument, the justices seemed dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy a federal education law by offering a student with a disability an educational program that provides the student with a benefit that is more than merely de minimis. It was unclear what standard they might substitute for “more than merely de minimis,” but they acknowledged that a stricter one would be an important development for students with disabilities.
Jeffrey Fisher, arguing on behalf of Endrew F. and his parents, spoke about the Individuals with Disabilities Education Act’s (IDEA) requirement for schools to offer Endrew an educational program “reasonably calculated to provide” him with opportunities “substantially equal” to other students. He pointed out that adopting this standard in place of the “more than merely de minimis” standard would correspond to the text of the IDEA. However, the justices remained skeptical, expressing concern over the problems adopting this new standard could cause in the different ways people might interpret it.
The justices also expressed concern over how this standard would work for students who might not be able to follow the general education curriculum because of their disabilities. This prompted Fisher to propose a slightly different standard from what he initially proposed, in which a student with a disability’s Individualized Education Program (IEP) should be “tailored to achieve a general educational curriculum at grade level,” and if that is not possible, should use specifically tailored “highest possible achievable” benchmarks for the individual student.
Irv Goldstein, arguing for the United States, went on to say that IDEA requires a program that strives for “significant educational progress in light of the child’s circumstances.” Justice Sotomayor explained the dilemma with this, because while the IDEA “provides enough to set a clear standard,” it is difficult to find a way to word such a standard where it would not be potentially confusing. Goldstein responded by saying that most schools are already taking the steps that this standard would require, and while adopting a stricter standard might complicate educational decisions, it is better option than adopting a barely “more than merely de minimis” standard.
Neal Katyal, arguing on behalf of the school district, brought up that the “more than merely de minimis” standard has existed and worked for years without resulting in really low standards being applied, and that a new standard would result in “massive amounts of litigation.” Justice Ginsberg pointed out that the “more than merely de minimis” standard has “no basis in the court’s precedent” and would therefore be easier to replace with a more stringent standard like the one based in the text of the IDEA.
Overall, while the dilemma over a new standard remains, the justices appeared unhappy with the current standard and willing to strike it down and replace it with one aimed at “significant educational progress in light of the child’s circumstances.” While this would differ from the initial standard proposed in Endrew F.’s case, it would still be a significant victory.
Prior to this oral argument, The Law Center joined with Autism Speaks on an amicus brief in support of Endrew F.’s case. The Law Center submitted this amicus brief touching on the merits of this case in regards to special education and the degree of educational benefit required under Free Appropriate Pubic Education. The brief highlights the effect that changing expectations of students with disabilities has had on legislative changes, and specifically the disproportionate way lowered expectations for students with disabilities affects minority students. It also mentions developments in IDEA that can provide students with disabilities with a more meaningful education and stresses the importance of the IEP providing students with disabilities with the tools they need to build a productive future.
Read a more in depth analysis of the oral argument here.