Wednesday, January 11, 2017
Breaking: Supreme Court Hears Oral Argument on FAPE Standard #rowley standard #FAPE #scotus
The United States Supreme Court heard oral argument today on the case of Endrew F v Douglas County Sch Dist, #RE-1, Case No. 15-827. The issue in this case concerns the standard for how much a school district must do to provide a free and appropriate public education to a student with a disability the current "some benefit" standard vs. a "meaningful benefit" standard. Please see our previous posts on this case here, here, here and here.
It is of course difficult to read the justices, in terms of how they may rule, based upon their questions. Sometimes they dhow their hand, but other times they play devil's advocate to try to help them flesh out a response to another justice when crafting their position or opinion. That said, Chief Justice Roberts seemed to be concerned about whether changing the standard might violate the Spending Clause by changing the conditions of receipt of federal funds after the funds have been accepted. He later noted that ambiguity in the current Rowley standard might affect that argument.
Justice Kennedy brought up the cost of services a number of times, but counsel for both sides noted that the Garret F case had resolved that issue. Justice Alito referred to IDEA as a "blizzard of words." He suggested that to have a benefit, you are making progress; that "significant" and "meaningful" are synonymous; and that if something is significant, it is more than "de minimis."Alito's concern was regardless of the words used, how were the lower courts applying the standard. Counsel for the school district said with some bite. Counsel for the parents said that the lower courts need a kick.
Justice Ginsburg stated that a standard with bite and more than de minimis were not equivalent; and Justice Kagan said that "Well, again, if somebody said to you, write a stature with -- write a standard with bite, I doubt you would come up with the words 'more than merely de minimis'." Justice Kagan noted the many procedural safeguards in IDEA, but noted that the procedures are used to achieve a substantive result, or FAPE.
The argument took an unusual turn early on when the lawyer for the parent veered away from the meaningful benefit vs some benefit standard which had previously been the issue in the case. He argued instead that the standard for FAPE should involve an analysis of grade level. Counsel for the parent stated that the standard should be "... the IEP should be tailored to achieve in a general educational curriculum at grade level for most kids. And when that is not possible, you would go to the alternate achievement standards." The Solicitor General, arguing on behalf of the United States, argued for a different standard: "It's grade-level competence for students who are in the regular classroom or in the general curriculum...And so that is where we have a slight area of disagreement. (for more severely disabled students)We would say significant progress towards grade-level standards, not as close as possible to grade-level standards." The Solicitor General stated that upon judicial review, the role of the courts should be limited to ensuring that an IEP was appropriate for progress based upon reasonable educational judgment. Counsel for the school district advocated keeping the current Rowley (some benefit) standard.
Please recall that there are still only eight justices on the Supreme Court. If the court ties 4-4, then the lower court decision is affirmed for the parties to this case but without precedential value for other parties. If the result is not a tie, this could be a very important decision for those who are involved in special education.
The briefs of the parties and many of the amicus briefs are available on the SCOTUS blog here.
The transcript of the oral arguments is available here.