Sunday, July 16, 2017

SCOTUS and the Individuals with Disabilities Act - A Human Rights Victory

By guest blogger Prof. Justine Dunlap

 Image1The value of an education has been proven time and again by those who have used it to climb out of poverty, escape violence, or as a ticket to a place, a job, or a life that exceeds that which might have been otherwise predicted. Moreover, the right to education is a fundamental human right.
The right to education is often lacking in impoverished countries and is particularly violated when it comes to educating girls. The international movement to educate girls received dramatic attention several years ago when the Pakistani teen Malala Yousafzai, in her refusal to be deterred in her determination to get an education, was shot in the head by Taliban gunmen. Malala’s on-going courage won her a Nobel Peace Prize and shone much-needed light on the need to educate girls.

In this country, notwithstanding our economic advantages and principles of gender equality, our public schools fail many of our children. And, frankly, progress does not seem nigh. Charter schools, once and still deemed by some to be the answer, have results that vary significantly from state to state. Further, additional policy changes are expected under current Secretary of Education, Betsy DeVos. The changes are not expected to favor public schools. 

However, during this past term, the United States Supreme Court sent a ray of hope in the area of special education law. A unanimous Supreme Court ruled in favor of children and parents, and against the school district when interpreting a provision of the Individuals with Disabilities Education Act (IDEA).

Thirty-five years ago, in the seminal special education case Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, the Supreme Court declared that under the IDEA, an individualized education plan (IEP) must be reasonably calculated to provide the child with “some educational benefit.” Only then would the IEP satisfy the substantive right to the free and appropriate public education anticipated by IDEA.

This term, in Endrew F. v. Douglas County School District, the Court added clarity on how to determine whether an IEP is reasonably calculated to afford a child “some educational benefit.” In the decision being appealed in Endrew F., the 10th Circuit had interpreted “some benefit” to mean that an IEP was sufficient provided that it was calculated to let the child make progress that was “merely….more than de minimis.” In an interesting twist, this case came down during the Senate Judiciary hearings on Supreme Court nominee Neil Gorsuch, a sitting 10th Circuit judge who had applied the merely more the de minimis standard.

A unanimous Supreme Court reversed the 10th Circuit, holding that “merely…more than de minimis” was too low of a standard to satisfy the IDEA requirement of a free, appropriate public education. The Court said that a child’s IEP must reflect an educational program that is ”appropriately ambitious in light of [the child’s] circumstances.” This standard, the Court declared, while admittedly general, is “markedly more demanding” than the merely more than de minimis standard.
In so ruling, the Court raised the bar as to what the law requires to provide a free, appropriate public education for children with disabilities. That is a victory for children and their right to be educated.

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