Supreme Court May Boost FAPE Mandate
WASHINGTON — U.S. Supreme Court justices appeared ready Wednesday to clarify and strengthen the rights of the nation’s 6.7 million children with disabilities, perhaps by requiring public schools to offer a special education program that will ensure they can make significant progress.
The case of a Colorado boy with autism, Endrew F. v. Douglas County School District, could have a far-reaching impact on millions of children and their parents as well as the budgets of school districts nationwide.
At issue is a long-standing federal law that says children with disabilities have a right to a “free appropriate public education.” Schools, courts and parents have been divided over what this promise means in practice.
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Does it mean, for example, that a school must merely offer a minimal special program that may offer “some educational benefit” to the child, as a federal appeals court in Denver ruled? Or instead, do these children have a right to “make significant educational progress,” as lawyers for the outgoing Obama administration contend?
During Wednesday’s argument, the justices struggled with the lawyers and among themselves to find the right legal standard. At one point, Justice Samuel A. Alito Jr. drew knowing smiles from his colleagues when he complained of the “blizzard of words” being tossed around, most of which had no clear meaning.
However, most of the justices appeared to favor setting a slightly higher standard, one that should lead the child to make measured progress on academics or behavior. Chief Justice John G. Roberts Jr. said it would not be sufficient for schools to provide an expert for five minutes a day and claim they were providing the child “some benefit.”
But the chief justice and others said they were wary of setting an unrealistically strict standard that would require students meet certain goals. They also voiced worries about costs and an explosion of lawsuits.
Parents who are dissatisfied with special education programs may remove their children from public schools, enroll them in private schools and then sue to have the costs paid by the school districts. But to win a reimbursement, the parents must show that the public schools failed to provide the “appropriate” education promised by the federal Individuals with Disabilities Education Act.
A coalition of big-city school districts warned the high court of the growing cost of private programs, which on average are more than four times as expensive as a public program.
In the case before the court, the parents of Endrew F., a child with autism from Douglas County, Colo., enrolled him in public school through fourth grade. They worked with teachers to devise a special education program for him, but by fourth grade, his behavior was getting worse. He had repeated outbursts in class, banged his head on the floor and twice ran away from the school.
His parents moved him to a private school where he was “thriving,” according to the 10th Circuit Court of Appeals. Nonetheless, the judges ruled the public school system need not reimburse the parents because it had provided their child with a minimally “adequate” educational program. “It is not the (school) district’s burden to pay for his placement (in the private school) when Drew was making some progress under its tutelage. That is all that is required,” wrote Judge Timothy Tymkovich, one of the 21 judges named as possible Supreme Court nominees by President-elect Donald Trump.
Stanford Law professor Jeffrey Fisher, representing the parents, said the Supreme Court should reject the minimally adequate standard set by the 10th Circuit and instead say that children with disabilities have a right to make significant progress at school.
Lawyers from the U.S. solicitor general’s office joined in support of the parents. Irv Gornstein, a counselor in the office, said the law requires schools to provide a learning program “aimed at significant progress in light of the child’s circumstances.”
While this is not a guarantee of progress, they said, it is an approach that will require schools to aim high.
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