Are Massachusetts students with disabilities about to drive off in a lemon?

Issue November/December 2016 By Laura Gillis and Torie Roig

Members of the Special Education Law world are all too familiar with the car analogy that stigmatizes services for students with disabilities. Massachusetts' In Re: Arlington Public School, BSEA # 02-1327 included reference to this analogy that "The [IDEA] requires . . . the educational equivalent of a serviceable Chevrolet to every handicapped student" rather than "a Cadillac solely for [student's] use."1 Regardless of their make, every state's vehicle warranty is set to expire during this term of the Supreme Court. The Supreme Court of the United States will speak to the appropriate standard of educational benefit required for students with disabilities under the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. (IDEA).

On September 29, 2016, the Supreme Court granted review of the Tenth Circuit case Endrew F. v. Douglas County School District RE-1, where parents argued for a higher level of educational benefit for their child, Endrew F. (Drew). Drew is a resident of Douglas County Schools eligible to receive special-education services based on the diagnoses of Autism and Attention Deficit/Hyperactivity Disorder.2 On appeal, parents sought reimbursement for their unilateral placement of Drew because they believed his educational program in Douglas County School District did not provide Drew with the opportunity to make meaningful progress.3 In order to qualify for unilateral placement reimbursement, parents were required to prove denial of Drew's rights under IDEA.4

IDEA provides students with disabilities the right to a Free Appropriate Public Education (FAPE).5 The Act defines FAPE as, "special education and related services that (a) have been provided at public expense, under public supervision and direction, and without charge; (b) meet the standards of the State educational agency; (c) include an appropriate preschool, elementary school, or secondary school education; and (d) are provided in conformity with the individualized education program required under section 1414(d) of this title."6

Most often, FAPE is achieved through the development and implementation of an Individualized Education Program (IEP).7 The Supreme Court last spoke to the substantive standard required under IDEA in their 1982 decision in Board Of Education v. Rowley.8 The Supreme Court required a student's IEP be "reasonably calculated to enable the child to receive educational benefits."9

The Tenth Circuit Court of Appeals reviewed procedural and substantive violations alleged by the parents to determine whether the District's actions resulted in a denial of FAPE.10 Specifically, the parents argued procedural error when the District failed to provide adequate progress reporting and failure to conduct proper behavioral assessments in order to implement an adequate plan to address Drew's behavioral needs.11 The Tenth Circuit agreed with the administrative law judge and District Court that the District's progress reporting did not result in a denial of FAPE because the parents were aware of Drew's progress through constant contact with the educators.12 Additionally, the Tenth Circuit determined the District complied with the minimal federal law requirement to consider behavior intervention.13

The parents' substantive challenges included error in the legal standard used to evaluate the substantive sufficiency of Drew's IEP and the conclusion of substantive adequacy of Drew's IEP.14 In quoting Rowley, the Tenth Circuit emphasized Congressional aim to create a "basic floor of opportunity," not "guarantee educational services sufficient to maximize each child's potential."15 The Tenth Circuit affirmed the administrative law judge and District Court applied standard that, "the measure is whether the IEP is reasonably calculated to guarantee some educational benefit, not whether it will do so."16

Circuit Courts remain divided on the FAPE standard requirement. To quote the Petition for Writ of Certiorari, "[t]he courts of appeals are in disarray over the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education under the IDEA."17 The Tenth Circuit noted in Endrew F. that while some circuits apply Rowley as requiring "some benefit" others require a higher standard of "meaningful educational benefit."18

The Supreme Court's review of Endrew F. will impact students with disabilities, their families, and school systems throughout the country in efforts to provide national uniformity on FAPE. Certainly, a consistent objective standard for FAPE will be a benefit to all in regards to clarity. However, in Massachusetts the uncertainty in the Supreme Court's decision is the possibility for an attack on the services received by students with disabilities. In Massachusetts, the substantive standard required for a student with disabilities is, "services that are reasonably calculated to permit a student to make meaningful educational progress. Meaningful educational progress includes "effective results" and "demonstrable improvement"… and is evaluated in the context of the student's educational potential."19 The standard adopted by the Supreme Court as consistent with the requirements under IDEA could produce considerably different results for the services received by students with disabilities as well as future case outcomes. The Supreme Court will ultimately settle whether IDEA requires services comparable of a Chevrolet or Cadillac for students with disabilities.

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