Friday, March 10, 2017
What Is an "Appropriate" Education for Students with Disabilities?; The Court Will Tell Us Soon by Jonathan D. Glater
Just how much must a school district do to support the educational opportunity of a disabled student? Just enough to enable that student to get something, anything, out of the education provided? Or enough to enable that student to thrive, to excel?
The question has confronted courts for years, as parents of disabled children have demanded that school districts do more to provide their children a “free appropriate public education.” But the meaning of this phrase, typically abbreviated as “FAPE,” has eluded precise definition. When the Supreme Court addressed the question, in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), a majority concluded that
[A] “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's [individualized education program – more on that below]. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.
The Court’s language suggests that any benefit is sufficient to satisfy the requirement that schools provide FAPE; Justice Rehnquist, who wrote the majority opinion, took a very literal and formal approach to the language of the law to reach this Court’s conclusion.
Congress imposed the FAPE mandate in the Education for all Handicapped Children Act of 1975, Public Law 94-142, subsequently re-enacted as the Individuals with Disabilities Education Act (“IDEA”). The meaning of FAPE is before the Court again this year.
The plaintiff in Endrew F. v. Douglas County School District RE 1 was diagnosed at age two with autism and attention deficit/hyperactivity disorder (“ADHD”). As a result of these conditions, he “struggles with the ability to communicate personal needs, emotions and initiations [sic], and does not engage or interact with others in social routines or play.” Endrew F. v. Douglas County School District RE 1, 2014 WL 4548439, *1.
During his fourth grade year, his parents removed him from his public school in Douglas County, Colo., and placed him in a private school specializing in education of children with autism. His parents sued, claiming that the school district in prior years had failed to provide the boy with a FAPE and demanding that the district reimburse them for the cost of attending the private school.
An administrative law judge ruled against Endrew F.’s parents, finding that he received a FAPE, and so concluded that his family was not entitled to reimbursement of expenses. The trial court judge, who reviewed Endrew F.’s progress in public school before he switched, concluded that Endrew F. had received some educational benefit under the individualized education program (“IEP”), the kind of plan called for under IDEA. The district had developed Endrew F.’s IEP in an effort to comply with the FAPE mandate.
A panel of the Tenth Circuit Court of Appeals affirmed the district court, and the Supreme Court granted certiorari. The precise question that the case presents to the Supreme Court, which heard oral argument in January, is this:
What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate education guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.?
The deeper issue is the meaning of equality. A demand for equal treatment is not satisfied by providing light for the seeing and the blind student alike.
IDEA seeks to “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living,” 20 U.S.C. §1400(d)(1)(A). But how are we to know that a given level of support has leveled the playing field for a disabled student?
Answering will only grow more difficult as we recognize students’ incredible diversity; students’ ability to take advantage of educational offerings lies along a spectrum. So the assumption that a one type of education serves nearly all will become one type serves some, and then, one type serves a few. Whether schools’ offerings evolve in response will likely be a political question rather than a doctrinal one.
Still, depending on how broadly the Court rules, the decision in Endrew F. could have far-reaching consequences, imposing clearer obligations on school districts to support disabled students or putting another hurdle in the way of parents seeking the best for their children. By June we will know whether a majority of the justices prefer the limited and formalistic interpretation of the majority in Rowley or a more idealistic interpretation that may impose greater costs on schools and would afford appropriate benefits to students.