Supreme Court Hears Case on Educational Benefit

Last June, we wrote about a case that was being considered for hearing before the United States Supreme Court, Endrew F. v. Douglas County School District. The Supreme Court subsequently agreed to hear this case and oral arguments before the Court were held this past Wednesday. As we had discussed, the case was brought by the parents of a child with autism who were seeking reimbursement for private school tuition from their public school district in Colorado, and is focused on the level of educational benefit that a school must provide to a student with a disability eligible to receive special education under the Individuals with Disabilities Education Act (IDEA).

 

The IDEA requires that a student receive an "appropriate" education, often referred to as "FAPE" - a free, appropriate, public education -and if a district program does not provide FAPE, then the district may be required to pay for the student to attend a private school that does provide such benefit. The "appropriate" standard was first formulated in 1982 and over the years there has been a divergence among  states as to what that standard really means, with terms like "more than de minimus" and "meaningful" being applied by courts in different states in different ways. Resolving this different interpretation of a federal law is one of the key roles of the U.S. Supreme Court. 

In the Endrew case, the student's parents were not satisfied with the very minimal progress he had been making in his public school program, both academically and behaviorally. By not adequately addressing his emotional and behavioral needs, the public school  program did not enable him to advance academically. The Endrews decided to enroll him in a private school and to seek reimbursement for the tuition they paid. Notably, once removed from the public school and receiving support for his emotional and behavioral needs, young Mr. Endrew made real academic progress; no one disputes that the new program offered him substantial benefits. 

In what Justice Alito described as "a blizzard of words", the attorneys representing the school district, the parents, and the U.S. government sought a clear standard for the benefit to be achieved under FAPE, one that would meet the needs of students, recognize that students with severe disabilities might not be able to make the same kind of progress as other, less disabled students, and not place undue financial burdens on school districts to pay for private school tuition. The goal, as noted in the brief filed by the Solicitor General, representing the U.S. government, should be to have the Supreme Court "clarify the proper FAPE analysis and establish a uniform standard to guide courts, state educational agencies, and parents across the country". We will see if the court is able to do so. 

U.S. Supreme Court Asked to Look at "Educational Benefit" under IDEA

Parents of students who receive services under the Individuals with Disabilities Education Act (IDEA) are aware that this federal law requires that their child receive a free, appropriate, public education, universally referred to as FAPE. But just what is considered appropriate has been the subject of litigation almost since this law was enacted in its earlier form (under a different name) in 1975.

The prevailing standard for "appropriate" was articulated by the Supreme Court of the United States in 1982 in the Rowley case, which we examined in this blog more than six years ago. As we noted at that time, the Court set the standard for appropriate far lower than parents and their supporters would have wanted, stating that the IDEA required only:

"...personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction … and should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade."

Over time, the Rowley standard has been subject to interpretation by courts throughout the country and the federal Circuit Courts of Appeals, whose decisions are subject to review only by the Supreme Court, have diverged in their views about what constitutes an appropriate education.

Now, a case is being considered for review by the Supreme Court from the United States Court of Appeals for the Tenth Circuit, which affirmed the decision of a lower court that providing "some" educational benefit to a Colorado student with autism was sufficient to meet the standards required for FAPE. The Supreme Court has asked the Obama administration's representative, the U.S. Solicitor General, to weigh in as to whether the Court should take on this case.

 The question posed by this case is described in the amicus brief  filed by Autism Speaks, which urges the Supreme Court to consider it:

 "Some circuits require a substantial educational benefit (often described as a “meaningful” one) while others ... require only a just-above-trivial educational benefit. [Supreme Court] review is necessary to resolve the conflict over an issue of paramount importance to children with disabilities, their parents, and their school districts."

The problem, as the amicus brief notes, is  "that the just-above-trivial educational standard adopted by the Tenth Circuit ... and by other courts of appeals, is not reasonably calculated to meet the educational needs of children with disabilities, and therefore impairs their access to an education and opportunity for independence and self-sufficiency."

We will continue to follow this case and to see if the U.S. Supreme Court decides to grant a writ of certiorari and accept this case for review.

The Jury is Out on New NYC Special Education Rules

Parents who place their children in private special education schools in New York City and seek to have their tuition payments either made directly by the public school system (Connors funding) or reimbursed to them (Carter funding), have long come up against a NYC Department of Education which has put up extensive procedural barriers to avoid making these payments. Even the Mayor's office noted, in a press release, "The special education placement process has been fraught with contention and litigation in recent years."

    

Now, in the face of a bill pending in the New York State legislature which would make it easier and quicker for families to receive public funding, the City has decided to remove the most onerous barriers faced by families seeking school funding and, according to a statement by NYC Mayor Bill de Blasio, is "...turning the page, making changes that will ease the burden on these parents [by] ... cutting red tape, speeding up the process, and reaching outcomes that do right by families.”  A 2012 bill which would have permitted funding in religious schools was vetoed by the Governor, but the current bill (which has been put on hold in light of this action by New York City) did not include this provision.


The specifics of the new policy are scheduled to be put in place by September of this year and include:

• Expedited Decisions: The City will now seek to reach a settlement with parents (in cases where settlement is appropriate) within 15 days of receiving notice from the parent of their intention to place their child in a private special education school.
• Ending Unnecessary Litigation: The City will no longer litigate cases which were settled or decided in prior years, or where the Department of Education fails to offer a school placement, except where there is a change in the kind of educational setting the student requires.
• Less Paperwork: Parents will no longer need to submit full documentation every year. The new requirement will be for documentation every three years.
• Quicker Payments: The City will make monthly payments where required by a school and give parents a payment schedule for other payments. 
• Payments Pending Appeals: Where parents have won a claim for tuition reimbursement which the City seeks to appeal, the City will pay the tuition while the appeal is pending.

Attorneys practicing in the area of special education are hopeful that these new policies mark an end to the very difficult relationship between the City and it's Department of Education and parents. Still, the devil is always in the details and families and the attorneys representing them are reserving judgement until they see how this new approach works in practice. 

Lawsuit Results in Fairer LSAT Accommodations

Thanks to our colleague, Jo Anne Simon, Esq., whose legal practice focuses on disability civil rights in high-stakes standardized testing and higher education, we have just learned of a Consent Decree from the United States District Court for the Northern District of California, which changes the rules for individuals with disabilities who seek accommodations to take the Law School Admission Test (LSAT).

We have written before about the Law School Admission Council (LSAC) and their refusal to comply with a survey of accommodation practices by the United States Government Accountability Office, as well as how the American Bar Association was urging the LSAC to end their practice of "flagging" scores of students who took the LSAT with disability accommodations. Flagging is the practice of annotating score reports of individuals who receive extended test time due to disability, something which the College Board (SAT, AP, and other exams) and the ACT folks have not used in the last ten years.

The Consent Decree is the result of a lawsuit brought by the California Department of Fair Employment and Housing, several individual students (represented by The Legal Aid Society - Employment Law Center), and the U.S. Department of Justice against the LSAC. Its terms are sweeping and include:

• An end to flagging of LSAT scores

• Creation of a panel of experts to establish "best practices" in handling accommodations, which the LSAC shall be required to implement
• Creation of a fund of almost seven million dollars to compensate individuals who were turned down for LSAT accommodations because of inappropriate requirements by the LSAC.

• Permitting many candidates to submit testing conducted within five years of the date of the request for testing accommodations, instead of within three years as currently required.

These changes are long overdue and should bring fundamental fairness to an exam that is a required by virtually every law school in the country. Anyone even thinking of applying to law school should read this decree in its entirety.

Photo credit: www.stockmonkeys.com via flickr