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Supreme Court Gets Between Schools and Parents

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The U.S. Supreme Court took up this challenging policy question Wednesday: How much is a school district obligated to educate a disabled child? The justices will have to choose from a smorgasbord of options offered by the lower courts, the Department of Justice, and the parents and schools in the case. The choices range from just a little more than nothing to the same level of education available to other kids. The outcome will have major consequences for tens of thousands of students -- and for the schools where they study.

The case, Endrew F. v. Douglas County School District, requires the court to interpret the Individuals With Disabilities Education Act, the origins of which go back to 1975. The law tells states that if they want to get federal funding for their schools, they must provide a “free appropriate public education” to all children with disabilities. 

A school district is obligated to come up with an individualized education program for each disabled student. The IEP describes goals for the student for each academic year and specifies a plan to achieve them.

It’s up to the school district and the parents to negotiate the IEP. The Supreme Court’s existing legal standard for the adequacy of the plan is that it be “reasonably calculated to enable the child to receive educational benefits.”

The original plaintiff in the case is a child known as Drew, diagnosed with autism and attention deficit hyperactivity disorder. Drew attended the public schools in Douglas County, Colorado, from preschool through fourth grade, subject to IEPs that his parents accepted.

After Drew had a difficult fourth-grade year, however, the parents decided that the IEP was inadequate. In particular, they objected that the goals being set for Drew’s fifth-grade year were substantially the same as had been set for him before, including multiplication of single-digit numbers.

Drew’s parents transferred him to a private, autism-oriented school, where he’s apparently thrived. The parents sued the school district for reimbursement of the private-school tuition on the theory that the school district had failed to provide their son with a free appropriate public education under the law.

The issue before the justices is the proper legal standard to determine what sort of education the school district owes Drew. The U.S. Court of Appeals for the 10th Circuit quoted language from the Supreme Court requiring that an IEP confer “some educational benefit.” It concluded that “the educational benefit mandated by IDEA must merely be more than de minimis.”

De minimis is a law Latin phrase meaning minimal, trifling or insignificant. To say that something in the law must be more than de minimis means it must be more than nothing -- but not by much. 

It isn’t obvious or necessary to read the words “some educational benefit” to mean “more than nothing.” The 3rd, 5th and 6th Circuits require that the IEP provide for a “meaningful educational benefit.” The split between the circuits gave the Supreme Court reason to hear Drew’s case.

Drew’s family has argued to the court that a free appropriate public education is one that provides a disabled child with substantially equal opportunity to achieve academic success and contribute to society as a nondisabled child. Intuitively, this view is extremely appealing. After all, the word “appropriate” in the federal law would seem to mean something like, appropriate for the child in question. If it’s possible to educate a disabled child to give the child equal opportunity, surely that would be appropriate.

The drawback of the family’s maximalist position is, of course, the problem of resources. If no expense is spared, the disabled child’s education may be the most successful it can be. But is it plausible to think that Congress intended no cost-benefit weighing in choosing the proper level? School districts have fixed resources, and at some point, trade-offs begin to emerge between the interests of different children, disabled or otherwise.

Probably for this reason, the office of the solicitor general in Barack Obama’s administration has argued for the more modest “meaningful educational benefit” position favored by several circuits. This approach makes practical sense, and allows for some limitation on resource expenditure.

The strongest counterargument to the Department of Justice position is that it will involve the courts in a detailed oversight process to determine whether individual IEPs provide a meaningful benefit. The solicitor general’s office replies that “schools can satisfy the FAPE requirement by assessing each child’s needs and capabilities on an individualized basis, and then making reasonable educational judgments about the educational services that will help the child make significant progress.”

That language sounds good, but it’s also arguably an invitation for individual litigation by parents who have the education and resources to challenge IEPs in court. What the school district considers a “reasonable educational judgment” may not match what the family thinks. That requires the courts to act as arbiters of reasonableness.

Nevertheless, it’s still probably better than the “something more than nothing” standard adopted by the 10th Circuit and urged by the school district. It’s always good to minimize litigation, and there’s a particular danger when families’ resource differences will affect who can bring that litigation to court. But it’s also outrageous to think that school districts can get away with offering such a low standard of education to disabled kids.

And there’s something morally troubling about saying that our national standard of appropriate education is to be better than nothing.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net