Fixing Special Ed, Part 1:Supremes’ decision on special-ed sets higher standards for care

If you’re the parent of a child with a disability, a unanimous decision by the U.S. Supreme Court last March may have genuinely brightened your day.

Alternatively, if you’re a public-school administrator intent on maximizing school funding, your reaction could have been decidedly less positive.

March 22 was when America’s high court replaced an unquestionably low-rung legal standard for public schools’ education of special-needs children with a more demanding measure.

Parents and advocates for children with disabilities were ecstatic.

“I’m thrilled, because I think it really empowers parents to feel confident when they go in the door” to discuss their kids’ Individual Education Programs (IEPs) with school employees, said Amanda Morin.

Now, she said, parents can remind the school “that the law says that this program must be tailored so my child makes progress.”

Morin, a contributor to the parent-support website, Understood.org, has two children with the IEPs required by the federal Individuals with Disabilities Education Act (IDEA).

“Clearly this is the most monumental IDEA case decided by the high court in over 30 years,” said Gary Mayerson, a civil-rights lawyer in New York City and a board member of Autism Speaks.

The reaction, however, of school districts and the public-education establishment to the Supreme Court decision — Endrew F. v. Douglas County School District — was noticeably more dour.

Sara Pudelski, a top officer and lobbyist for AASA, the national association of school superintendents, called the decision “a recipe for disaster” if it ultimately requires school districts to provide additional, expensive services to special-needs children.

And, with good reason, that is what public school organizations now expect.

In amicus briefs submitted to the Supreme Court before its decision, the AASA and multiple other public-school-based organizations predicted financial disaster for public schools if the Court were to reject the minimal-improvement standard they preferred.

Known as the “de minimis” standard, it has long been used by many public schools in several federal circuits. The 9th Circuit, where cases from Nevada and seven other states get appealed, had, until the Endrew F. decision, been such a jurisdiction.

Said the AASA amicus brief:

While the educational results are uncertain, the costs are not: Changing the standard will lead to more litigation, likely resulting in the lopsided allocation of already limited resources…

School districts across the country are already struggling with litigation costs, “spend[ing] over $90 million per year in conflict resolution,” and data from the most populated states indicate that the annual number of due process hearing requests continues to increase. … Changing the rules of the game and imposing a heightened fuzzy standard different … will only increase incentives to litigate, as dissatisfied parties seek reversal in court under a new and malleable standard.

The brief from the Council of Great City Schools — of which Nevada’s Clark County School District has long been a member — was even more emphatic.

At great length, it expounded on substantial cost increases that school districts expected to face, if the court rejected “the minimal-improvement” interpretation applied by the Tenth Federal Circuit to a particular word in the federal IDEA law.

FAPE

That word — “appropriate” — is the key term in the law’s guarantee of a “Free and Appropriate Public Education,” which federal law, via the Individuals with Disabilities Education Act, makes to every child with a disability.

Frequently abbreviated with the acronym FAPE, the phrase is fundamental to IDEA. The interpretation of its key term, appropriate, has immense consequences for the development of each special-needs child. That interpretation is also consequential for the school districts that, under IDEA, are obligated to provide the extra, individualized, treatment and education services the children need.

So, while the IDEA law gives with the one hand, it also engenders significant legal conflict between school districts and parents with the other. For one thing, it effectively empowers public schools to unilaterally impose on a child a less-than-adequate IEP, even when the child’s parents vigorously disagree. While the law requires that parents’ arguments are heard, once that box is checked the public school can then proceed as it determines.

Court decisions are full of evidence that a large number of school districts regularly do this as they attempt to evade the sometimes quite-high costs of the individualized treatment and education services that certain children with multiple disabilities need.

Those children’s parents then — if they understand their legal rights and have the resources — can challenge school decisions before administrative hearing officers and then even take school districts to court.

Such a lawsuit was the Endrew F. v. Douglas County School District case. Last summer’s edition of the education-reform magazine, EducationNext, provides a good summary of the question at issue:

Endrew F. (Drew), an autistic child in Douglas County, Colorado, showed severe and increasing behavioral problems from preschool through 4th grade. Dissatisfied with his lack of progress under his Individualized Education Program (IEP), his parents withdrew him from public school in 2010 and enrolled him in a private school specializing in serving autistic students. He made significant gains in the new school and is now a 17-year-old high-school student learning vocational skills.

Drew’s parents believed that under provisions of the Individuals with Disabilities Education Act (IDEA), they were entitled to reimbursement from the Douglas County School District for the cost — $70,000 per year — of Drew’s private education. The school district, they argued, was not providing Drew with the “free appropriate public education” statutorially required by IDEA, thus qualifying him, under that law, for placement in a private program.

The school district disagreed. While Drew was not making significant progress, he was making some progress and that, district lawyers argued, was all the law required. The district pointed to a 1982 Supreme Court decision, Hendrick Hudson School District v. Rowley, which held that schools must provide “some educational benefit” for children with disabilities. As long as an IEP was “reasonably calculated to enable the child to receive educational benefits,” said Rowley, the school district had complied with the law. Thus, the district contended, anything more than a trivial benefit was sufficient. (Emphasis added.)

The funding issue

Because the issue of money was central to the case, and because it is federal law that makes provision of “appropriate” services to children with disabilities mandatory, you might expect the federal government itself would fund the extra costs involved.

Not true, however.

While Congress in its IDEA law originally promised to fund up to 40 percent of the extra costs — leaving the rest for states and local school districts to pick up — the federal government has only once picked up more than 19 percent.

Indeed, as of fiscal year 2014, IDEA federal funding only covered 16 percent of the estimated excess cost of educating America’s identified special-needs children.

Nevertheless, the IDEA law still mandates that if a public school district is unable to provide a FAPE for a child, and an available private school can do so, and the child’s parents then place him or her in that private school, they are entitled to a reimbursement of their costs — from the public school district.

“Thus,” argued the Council of Great City Schools amicus brief, “altering the definition of FAPE has a dramatic impact on the funds a district must expend to cover private education.”

The brief also asserted that educational “services provided to students with disabilities in a private setting cost a public school district, on average, nearly five times what it costs to provide the services within-district.”

What the brief failed to acknowledge, however, are the primary reasons for the higher cost of special-needs children in private placement. One is that, as the education-reform magazine Education Next reported,

In many cases, public schools simply do not have the facilities or staff to accommodate students with certain disabilities, and those students are sent by the public schools to specialized private schools. For example, some public schools are incapable of serving blind and deaf students, who constituted 3,022 of the 88,156 privately placed students in 2004. Another 19,876 students in private placements are mentally retarded, have multiple disabilities, or have suffered a traumatic brain injury. The lion’s share of the 38,510 emotionally disturbed students attending private school at public expense were also likely sent because public school officials believed that they were unable to handle the students’ needs.

Indeed, some children’s needs are so great that private placement is often the public school district’s most economical solution — as an alternative to building the special facilities and hiring the same expensive specialists as do private institutions.

The effect of monopoly

A second reason for the high costs of private placement is the virtual monopoly on special education that the IDEA law established for public school districts — which, for decades, largely prevented the growth of competitive private markets in special-education services.

In the run-up to the Supreme Court hearing now known by its Endrew F. ruling, the public-school organizations’ amici briefs sought to characterize the plaintiffs’ appeal as an effort to alter the existing legal definition of FAPE.

Chief Justice John Roberts denied this, however.

Instead, he wrote, the court was moving to clarify what the IDEA legislation actually required and what the court’s own 1982 precedent meant — as opposed to how certain circuits, including the 10th, had misinterpreted it.

Writing for the court, Roberts distinguished the two broad categories of children with disabilities: the majority, whose relatively minor disabilities allow them to “advance from grade to grade progressing smoothly through the general education curriculum,” and the children with more severe disabilities — such as Drew, the autistic youth whose minimal services from his school district were the subject of the appeal.

For children such as Drew, wrote Roberts, their educational programs must be “appropriately ambitious.” Their “goals may differ, but every child should have the chance to meet challenging objectives.”

“To meet its substantive obligation” under the federal Individuals with Disabilities Act (IDEA), the court agreed, a school must offer an Individual Education Program (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” and one “markedly more demanding than the ‘merely more than de minimis’ test applied by the 10th Circuit.”

Added Roberts, “A student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”

Colorado’s Douglas County School District had argued that it had met the standard stated by the 1982 case in which the Supreme Court had first interpreted the IDEA.

That case, known as Rowley, had concerned a young student in Roberts’ first category: those youth with less-severe disabilities who can progress, grade to grade, within the general educational curriculum. Indeed, Amy Rowley was universally acknowledged to be excelling her classmates, despite her hearing disability, for which her school district was providing accommodations.

Discussing the Rowley case, Roberts acknowledged that its decision had mentioned IEPs conferring “some educational benefit” and that the phrase, along with some other language “in isolation,” did appear to support the school district’s argument.”

“But the district makes too much of them,” he said. “The Court had no need to say anything more particular, since the case before it involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits.”

The ‘adversarial atmosphere’

Five years earlier, Professor of Law Scott F. Johnson had noted the basic problem that the Supreme Court was finally addressing in March 2017. Writing in the Journal of Law and Education, Johnson observed that in Hendrick Hudson School District v. Rowley, the court had vaguely spoken of FAPE as requiring individualized services that permit the student “to benefit” from the instruction. As well, the Court

… also made statements about schools not being required to maximize a child’s potential and only needing to provide services “sufficient to confer some educational benefit.” The Court noted that when a student is “mainstreamed,” or educated with non-disabled students, that “the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit.”

What resulted, wrote Johnson, was that certain “lower courts latched on to the phrase ‘some benefit,’ the statement about not maximizing potential, and the achievement of passing grades as the key mandates of FAPE” — while other courts, on the other hand, “began to focus on different language in Rowley that noted the benefits provided must be “meaningful.”

He continued:

While both the “some benefit” and the “meaningful benefit” standards look at student progress as a measurement of meeting FAPE requirements, application of these different standards has produced vastly different results for students with disabilities.

The “some benefit” interpretation of FAPE is counter-intuitive and can create an adversarial atmosphere between parents and schools that can lead to litigation. Parents want what is best for their child and in most other legal contexts involving children, the best interest of the child is the legal standard as well. In the regular education context, what is best for a student is often considered when making decisions. But with special education, the “some educational benefit standard” sets up a system where schools do not necessarily have to do what is best for the child. As long as they deliver services that result in some student progress and passing grades, the school has met its legal obligations. It does not matter if the student could do better with more services, or a different approach altogether. (Emphasis added.)

The “some benefit” standard, argued Johnson — who serves as a special-education hearing officer in New Hampshire — creates hostility on the part of parents who see their children needlessly struggling to be able to do what they are capable of doing, but being hampered in their learning by the low expectations that, via the minimal standard, have become institutionalized.

That standard, he wrote, also

… ties the hands of school officials in the special education system because it is difficult for them to justify expending money for services that go beyond legal requirements. Rather than allowing the team to work together to develop a plan that will allow the student to meet the IDEA’s goals, it polarizes team members into positions of wanting more and justifying less.

Unfortunately for special-needs children in Nevada’s two metropolitan school districts, the 9th Circuit had, until very recently, been one of those adhering to the minimalist interpretation of Rowley.

Now, however, the 9th has already applied the new Endrew F. standard to a California school district — and done so in a significantly demanding way.

Thus it seems clear that, for both special-needs families and school-district budget managers, a genuinely new day has arrived.

Additionally, on December 11, the U.S. Department of Education underlined the new standard, saying that all IEPs must include annual goals that aim to improve both the functional and educational performance of the child. Moreover, if the child is not making reasonable progress toward those goals, the IEP must be reconsidered.

“The Supreme Court sent a strong and unanimous message,” said Secretary of Education Betsy DeVos. “All children must be given an opportunity to make real progress in their learning environment — they cannot simply be passed along from year to year without meaningful improvement.

“For too long, too many students offered IEPs were denied that chance. I firmly believe all children, especially those with disabilities, must be provided the support needed to empower them to grow and achieve ambitious goals.”

At the same time, DeVos released a new nine-page Q&A document addressing many of the questions regarding the Supreme Court ruling that parents, advocates and school districts may have.

Does all this mean, therefore, that as the AASA spokesperson suggested, a budget-busting special-needs funding tsunami is heading for the state of Nevada?

Nevada Journal will take up that question in Part Two of this series.

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Steven Miller is managing editor of Nevada Journal and  senior vice president at the Nevada Policy Research Institute.