Last week the Supreme Court heard oral arguments in a special education case.  The issue before the court is: what does “FAPE” mean?  How do we know that the school has offered an IEP that meets the standards in the law?

SCOTUS addressed this issue years ago in the case of Board of Education v. Rowley.  In that 1982 decision, the Court construed our federal special education law for the first time.  The decision told us that schools were not required to maximize a child’s education, but had to offer a set of services that would confer some educational benefit.  How much is “some”?  Hmmm.

In the Rowley case, the Court specifically noted how difficult it would be to come up with a single standard that applied to the wide spectrum of students with disabilities. Therefore, the Court confined its analysis to kids like Amy Rowley—students with disabilities (Amy was deaf) who were bright enough to be served in the mainstream, general education classroom. With students like that, the Court said, moving from grade to grade on time with the other students was good enough.  If the student passed from grade to grade, the student was receiving FAPE. The Court deferred to a later day any decision about what “some benefit” means for students not capable of meeting grade level standards.

Now that day has come.  The case before the Court involves a student with autism who is not on grade level and likely never will be.  For a student like that, what does “some benefit” mean?

The lawyers for the student point out that IDEA has been significantly changed since 1982 when the Court last considered this question.  It now includes requirements that all students should be learning “the general curriculum.” It requires planning for postsecondary life.  It requires almost all students to be included in the state’s accountability program at grade level. In other words, the argument is that the early version of IDEA only required that schools open the door to students with disabilities; now it requires a higher level of services.

The lawyers for the school district argued that the Rowley standard has never been overturned by Congress, the definition in the law of “FAPE” is the same now as it was then.

The justices asked a lot of good questions.  They obviously were well prepared to hear these arguments, and were struggling with what precise words would create a proper standard. The problem inherent in this situation is the utter ambiguity of any standard anyone offered. There is much talk in the oral argument about the meaning of words like “meaningful” “significant”  “some” and “more than de minimis.”  Whatever emerges from this case is likely to be a murky, imprecise, ambiguous label that will do little to provide clarity.

We’ll keep you posted on this.  Wanna read the transcript of the argument?  Here it is:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-827_gfbh.pdf

The case is Endrew F. v. Douglas County School District RE-1. 

DAWG BONE: WE MAY HAVE TO UPDATE THAT OLD “CHEVY v. CADILLAC” ANALOGY.

File this one under: SPECIAL EDUCATION

Tomorrow: Our new president….