Modernize Special Education Law and Support Access to a High Quality Education for All

Lauren Morando Rhim, Ph.D. and Paul O’Neill, J.D.

Co-Founders, National Center for Special Education in Charter Schools

The United States Supreme Court (the Supreme Court) will soon hear the Endrew F. v. Douglas County School District (Endrew F.) case that may result in a new or updated definition of a “free appropriate public education,” the central pillar of the federal Individuals with Disabilities Education Act (IDEA). The current legal standard that school districts need to meet when designing a program for students with a diverse range of disabilities is incredibly modest; in fact in some states, schools are only expected to provide an education that is “just more than trivial.” This is unacceptable and reflects an outdated perception of the potential of individuals with disabilities.  

The focus of our organization, the National Center for Special Education in Charter Schools (NCSECS), is the interplay between special education and charter schools. A foundational principle of the charter school movement is that all children should have access to a high-quality education that equips them to be successful inside and outside of the classroom. For this reason, NCSECS and the National Alliance for Public Charter Schools (the National Alliance) recently filed an amicus brief with the Supreme Court in support of the Petitioner in Endrew F. NCSECS and the National Alliance are urging the Supreme Court to adopt a high standard of educational benefit consistent with the charter school movement’s commitment to serving students with disabilities enrolled in charter schools, and its high expectations for all students.

Background

In 2010, Endrew, an elementary school student with autism, was struggling to succeed in his neighborhood public school. He regularly disrupted class and would yell, cry and bang his head. He was not making progress towards the goals outlined in his Individual Education Program (IEP). After unsuccessful meetings with the school to request that it provide Endrew with additional support, his parents withdrew him from the public school and placed him in a private school for students with autism where he received the supports he needed to be successful. Endrew’s parents sued Douglas County Public Schools in federal district court for reimbursement of the private school tuition on the basis that the district failed to provide Endrew with a “free appropriate public education” (FAPE) as outlined under IDEA. The case eventually made it to the 10th Circuit Court of Appeals, which determined that the district would not be required to reimburse the family because it had met the standard of providing “some educational benefit,” which the 10th Circuit said was consistent with the standard established in 1982 in the Supreme Court’s Board of Education of Hendrick Hudson School District v. Rowley (Rowley) decision. Endrew’s parents appealed again on the basis that this standard was too low and did not reflect the broad goals of IDEA. In some other parts of the country, the federal circuit courts have read Rowley to promise a higher, “meaningful benefit” standard. The importance of this issue and the split between the circuits were enough to persuade the Supreme Court to grant certiorari and hear the appeal, which is expected to be heard next spring.

Time for a New Standard that Reflects the Abilities of Students with Disabilities

The notion that students with disabilities in some states are due only “de minimus” (just more-than-trivial) progress or in other states “some educational benefit” from their public schools reflects and perpetuates the belief that having a disability makes you less worthy of an education than your peers without disabilities. The phrase “students with disabilities” captures students across the range of physical, cognitive, and emotional disabilities, most of whom can achieve the same academic performance as their peers without disabilities and some who may not. Nevertheless, they each have a fundamental civil right to be educated and expect to substantively benefit from their education as any other student. In contemporary society we would never accept the standard of “some benefit” for groups such as women or minorities who historically have been discriminated against and yet in many states, we remain comfortable with applying this low standard to students who qualify to receive special education services and supports. Ideally, an updated definition will lead to greater scrutiny of actual quality of services, rather than just compliance, and school districts fully embracing inclusion to ensure that students with disabilities have access to the general education curriculum. Furthermore, the updated standard could assist advocacy groups in successfully lobbying Congress to fully fund IDEA (which has always lagged far behind the level of federal funding called for in this law). The opportunities are tremendous and meaningful.

Optimism and Fear

As advocates for students with disabilities, we are cautiously optimistic that the Supreme Court will reinforce Congress’ commitment under IDEA to ensure that all students are provided a high quality education. An updated and modern definition of FAPE has the promise of bolstering our ability to press for the needed instruction, intervention, accommodations and supports that students need in order to succeed. It also helps us promote and better protect the civil rights of students with disabilities in all public schools. At the same time, given the currently empty seat on the Supreme Court, we are fearful that the justices may be unable to reach a majority in favor of expressing our nation’s commitment to all students. At the end of the day, we are hopeful that a thoughtful Supreme Court will recognize the inherent prejudice embedded in the construct of “some educational benefit” and create a consistent standard that will substantively raise the bar for students with disabilities. This would be a historical advance that could pay dividends – not just for the individual students like Endrew – but for society as a whole, as we all benefit when we invest in today’s students who are tomorrow’s adults.

Note: We would like to express our appreciation and admiration of NCSECS board member Bill Bethke, lead author of the brief and co-author Lisa Scruggs from the law firm of Duane Morris.