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Supreme Court sets higher bar for education of students with disabilities

Original article from The Washington Post

The Supreme Court on Wednesday unanimously raised the bar for the educational benefits owed to millions of children with disabilities in one of the most significant special-education cases­ to reach the high court in dec­ades.

The opinion rejected a lower standard set by the U.S. Court of Appeals for the 10th Circuit and used in a subsequent case by President Trump’s nominee to the high court, Neil Gorsuch, during his tenure on the appeals court. The high court’s ruling quickly became the focus of questions Wednesday at Gorsuch’s confirmation hearing.

In its unanimous ruling, the Supreme Court said that a child’s “educational program must be appropriately ambitious in light of his circumstances” and that “every child should have the chance to meet challenging objectives” even if the child is not fully integrated into regular classrooms.

[Court to decide: What do schools owe children with disabilities?]

The court stopped short of setting a bright-line rule, deferring to the expertise and judgment of school officials and acknowledging the unique set of circumstances of each child with a disability.

But the justices sent a strong, clear message with their unanimous decision that the 10th Circuit standard was too low.

Any standard, the court said, that is not centered on “student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act” when it passed the 1975 law that provides federal funds to help states cover the cost of educating students with disabilities.

“When all is said and done, 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,” wrote Chief Justice John G. Roberts Jr., who wrote the 16-page opinion. “For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to “drop out.” ’ ”

Lower courts have been split on what level of educational benefit is guaranteed under the federal law known as the Individuals With Disabilities in Education Act, or IDEA. The majority of appeals courts, including the 10th Circuit, say that students are owed “some” benefit, which courts have interpreted to mean just more than trivial. Two appeals courts established a higher bar, calling for a “meaningful” benefit.

The Supreme Court’s decision more clearly defines a uniform nationwide standard for the more than 6 million children with disabilities who qualify for services under IDEA. Advocates said that the ruling would not only affect decisions in the relatively few special-education disputes that go to court but would also more broadly shift the balance of power between families and school officials, pushing schools to set more ambitious goals tailored more carefully to each student’s particular needs.

Gary Mayerson, a board member of the advocacy organization Autism Speaks, said that the timing of the decision “couldn’t be better,” as it comes just before the spring season when many schools draw up individual education plans for students with disabilities.

“School districts will have the perfect opportunity to do the right thing and create programs that are consistent with the new clarified standard,” Mayerson said.

The court did not raise the bar as far as some advocates had hoped, to call for “substantially equal” opportunities for students with disabilities — a standard that critics said could have significantly increased costs. Francisco Negron of the National School Boards Association said the decision was “measured” and set an expectation that “school districts will be comfortable with and reflects in many ways how they’re already operating.”

The justices released their decision Wednesday morning as Gorsuch was testifying before the Senate Judiciary Committee during the third day of his confirmation hearings.

Almost immediately, he was asked about his application in 2008 of the lower 10th Circuit standard. He said that standard was set in a 1996 decision, which determined that services have to be “more than de minimis” or, in other words, result in at least minimal progress by the student.

“I was bound by circuit precedent,” Gorsuch told the committee, saying that ruling against a child with autism and his parents was “heartbreaking.”

He added that his circuit was unanimously taking the same position in all such cases. Now that the Supreme Court has said that is the wrong standard, he said, “Fine, I will follow the law.”

Sen. Richard J. Durbin (D-Ill.) said Gorsuch had read the law the wrong way and made the precedent worse by adding the word “merely” to the standard.

In response to a series of follow-up questions from Sen. Amy Klobuchar (D-Minn.), Gorsuch rejected her suggestion that he was “anywhere out of the mainstream” in applying the standard rejected by the Supreme Court. He noted that several other appellate courts had relied on the same standard.

Scheduled to testify at Gorsuch’s hearing later this week is Jeff Perkins, the father of the child with autism whom Gorsuch ruled against in the 2008 case.

The case decided Wednesday involves Endrew F., a Colorado boy who was diagnosed with autism at age 2.

His parents pulled him out of a public schools in Douglas County, south of Denver, after his behavior deteriorated dramatically and he made what they said was almost no academic progress. They placed him in private school, where he made rapid progress, and they sought reimbursement for tuition. They are entitled to that reimbursement if they can prove that the public school failed to provide a “free appropriate public education” under federal law.

The 10th Circuit ruled in 2015 against Endrew, finding that he had made enough progress under his education plan to satisfy the “merely more than de minimis” standard. Gorsuch was not part of the panel that decided that case. The Supreme Court’s decision on Wednesday sends the case back to the appeals court to decide in light of its decision.

William Trachman, a lawyer for the Douglas County schools, said the district is confident that its work already meets the Supreme Court’s standard and looks forward to proving it.

Colorado lawyer Jack Robinson represented both Endrew and the Perkins family in the 2008 case. Robinson said that until now, too many schools have treated parents dismissively, understanding that — because of the 10th Circuit’s rulings — they would not be held accountable for failing to adequately serve a child with a disability.

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