How US Supreme Court cases could reshape special education

While for most Americans there have been few eye-catching cases at the United States Supreme Court this year, for disabled students, their parents, and the cash-strapped school districts that educate them, this could be a banner year.

The high court will hear arguments Wednesday in what experts say is the most important special education case to come before the justices in almost 25 years. The case, Endrew F. v. Douglas County School District, will revisit the knotty question of what quality of education school districts must provide their disabled students.

The court heard arguments two months ago in another special education case, Fry v. Napoleon Community Schools, that questions when the parents of disabled students can seek damages from a school district in federal court.

Public schools weren’t required to educate students with disabilities at all until 1975, when Congress passed the Individuals with Disabilities Education Act (IDEA). It required that states provide them a “free and appropriate public education.” The standards for special education have only improved since then, thanks to a number of congressional amendments.

The two cases this term have the potential to raise those standards even higher – either directly or by an increased threat of litigation. But they also carry the potential to expose already financially stretched schools to even greater costs.

When Congress was crafting IDEA “they were thinking of wheelchair ramps, they were thinking of Braille,” says John Pitney, a professor of American politics at Claremont McKenna College in California.

Now there are more than 6 million students diagnosed with disabilities in American schools, with conditions ranging from sight and motion issues to autism and cerebral palsy – all of which can vary in severity. Most either agree on Individualized Education Plans (IEPs) with their school, or, if the district can’t provide them an adequate education, have private school tuition paid by the district.

“There’s a lot more uncertainty, and more uncertainty breeds litigation,” adds Dr. Pitney, author of “The Politics of Autism.”

This uncertainty is coming to a head in Endrew.

What constitutes a 'meaningful' education?

The case concerns the parents of an autistic student in Colorado, who sued the local school district for private school tuition because he didn’t receive a “meaningful” education in public school. The school district prevailed in the US Court of Appeals for the 10th Circuit, which held that the district is only required to provide educational benefits that are more than minimal or trivial. Six other circuit courts have applied similar standards, but the Third and Sixth Circuits have split, ruling that schools must supply a “meaningful educational benefit.”

The confusion runs several layers deep. First, it is unclear whether school districts have to provide “meaningful” or just “more than trivial” educational benefits to students. Second, what can qualify as “meaningful” or “more than trivial” can vary from student to student. 

And the Supreme Court is responsible for the confusion, some argue, because of a decision it delivered in 1982. That decision, Board of Education v. Rowley, says not only that schools must provide “some educational benefit” to disabled students, but also that this benefit must provide the student “access” to education that is “meaningful.”

“Just clarifying that ambiguity ... would help clarify what the rules of the game are,” says Ron Hager, the senior staff attorney at the National Disability Rights Network, a group that has submitted an amicus brief in support of Endrew. "This is the biggest [special ed] Supreme Court case since Rowley."

Schools advocates dispute that there is anything to clarify at all. They fear that the high court could create a higher national standard that could force schools to spend more on therapies for students, on private school tuition for them, or on lengthy legal battles. 

A brief from the National Association of State Directors of Special Education in support of neither party, for example, says that Congress has established “significantly higher academic expectations for students with disabilities that go beyond merely providing for their inclusion” since the IDEA became law.

“Our educators are prepared to and do provide an education at a level more meaningful than the Tenth Circuit’s ‘just-above-trivial’ standard,” the brief continues. They “believe that this standard better serves the students and their families, the schools they attend, and the communities in which they are located.”

Higher graduation rates

Indeed, as Congress has gradually bolstered the IEP process, the percentage of students with disabilities who have graduated high school increased from 41 percent in 1993 to 65 percent in 2013, according to the National School Boards Association (NSBA). The percentage of students with disabilities who enroll in a postsecondary program within four years of finishing high school rose from 26.3 percent in 1990 to 45.6 percent in 2005. These improvements not only allow students with disabilities to be more independent as adults and lead more fulfilling careers, it lower costs for society in the long run, advocates say.

“A one-size-fits-all mandate is artificial and not inclined to serving children,” says Francisco Negrón, general counsel for the NSBA. “It might set a child back by setting up a standard wholly unrelated to the needs of the child.”

Meanwhile, “the costs of special education have increased exponentially over the years,” according to a brief filed by the NSBA, and federal funding for these costs have never reached the 40 percent a year maximum Congress promised when it enacted the IDEA.

A higher standard of education could also expose school districts to more litigation from parents claiming inadequate education for their children, they argue, lumping even more costs onto financially stressed schools.

Service dogs at school

This is where the Supreme Court’s decision in Fry could be significant. In that case, a Michigan school district barred a student with cerebral palsy from bringing her service dog – a goldendoodle named Wonder – to school. Instead of addressing the issue through processes outlined in the IDEA, the student’s parents sued for emotional damages under the Americans with Disabilities Act (ADA). 

The legal question is narrow and technical: Should parents have to explore every avenue of redress under IDEA before resorting to the ADA? As with Endrew, the case could have larger implications. Schools fear that a win for Fry would prompt parents to go to court instead of collaborating with schools.

The amount of litigation from parents has decreased in recent years, however, according to the Center for Appropriate Dispute Resolution in Special Education. Instead, most parents work through the IEP process.

And people like Mr. Hager believe that litigation will not only remain a rare last resort, but also act as an incentive for school districts to improve special education at the front end.

“If she could bring the dog on campus and not need [a required human] aide, it would save them money,” he says, referring to the Fry case.

“I’m hoping the bigger change [from these cases] will be the psychology of it,” he adds, “that when parents are at IEP meetings with the school district, the school will be more willing to listen to parents and give students more of what they need up front.”

A boost for parents

Parents and special education advocates believe this could help level the playing field during the IEP process, which can often be more combative than collaborative.

“Parents can be at a great disadvantage, sitting at a table with a group of professionals who are repeat players [who’ve] been through many, many IEPs with other parents,” says Pitney. “That asymmetry can lead to conflict.”

For now, the court will focus on the question presented in Endrew, where US Acting Solicitor General Ian Gershengorn urged the court to “establish a uniform standard to guide courts, state educational agencies, and parents across the country.”

Even if the Supreme Court can provide some clarity to that initial point of confusion – whether disabled students are entitled to “meaningful” or “just-above-trivial” education – they don’t have the authority or ability to clarify what that education would look like for each individual student. Combine that with the financial limitations of school districts, and these issues are unlikely to be solved, just displaced.

“What the court will come up with will be adjectives and nouns. ‘Meaningful benefit’ for instance, what does that mean?” adds Pitney. “Translating the language of the decision into actual results in IEPs. That’s easier said than done.”