Episode Two: Pending Before the Court, Part Two
In the second part of our Supreme Court term preview, we explore Endrew F. v. Douglas County Schools, a case that addresses the most fundamental question in special education today: What level of education does a school district have to provide to its IEP students to meet federal FAPE obligations? Is any educational benefit enough to comply with the IDEA or must districts provide meaningful educational benefits to their special education students? And what is a meaningful educational benefit anyway? For an update explaining the Court’s recent decision in this case, please take a look at this alert.
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Miriam: Welcome to Education Law Update, the podcast that entertains and informs.
Lisa: I’m Lisa.
Miriam: I’m Miriam. We’re Ohio attorneys from Walter | Haverfield. We practice school law. Every so often, every few weeks we get together, we chat about the latest in the developments that affect school districts, board members, administrators, just really anybody who works in the schools.
Lisa: We have a great topic today. Keeping in line with our last episode, we’re going to stick with the Supreme Court right now. We have a great case Endrew F. that is going to look at what level of special education do districts need to provide to meet the standard under the IDEA. We’re going to give you a little background that you need to know to understand everything and we’re going to talk about with this case. We’ll hit on what the state of the law is currently and where this case may take us and some potential practical implications for you guys in the schools to keep in mind.
Miriam: Excellent. Thanks, Lisa. I guess, first of all, very quickly, one or two sentences, I’ll review IDEA and free appropriate public education. I know we talked about this last week. Maybe you missed it so here we go again. School districts are required under Federal Law to provide students with special education needs with a free appropriate public education. That means school districts have to provide specially designed instruction for that child. This specially designed instruction is delineated, is presented in an Individual Education Program in an IEP, Individual Education Program for that child. Every IEP lays out the goals and objectives that the child is expected to meet within one year’s time, and it lays out what services, specifically, the districts will provide. What specially designed instruction the district is going to give that child. That’s what districts have to do, but the question here is, what level of services is appropriate? What’s the appropriate level of services and how are we going to measure that?
Lisa: Basically, how much is good enough that should a case go to court, the district is going to say, “Yes, I provided enough to this student”?
Miriam: Very often, parents say, “Look, our kid’s not making progress. This is not working. The services that you’re giving are so terrible or not enough. Now, we’re going to sue for tuition. We’re going to send our kids to private school. We are claiming that what you did wasn’t good enough. You violated the law.”
Lisa: Here’s why this is important though and why this has made its way to the Supreme Court is there are two standards out there, de minimis standard and a meaningful standard. We’re going to dive into those in a second with some of the law that’s developed to establish laws. We just want you to know that this is going to be really important because it’s going to impact how you’re delivering services in special education, what those services look like, how you’re keeping data and progress to show what you’re doing. It’s really going to impact your everyday functioning.
Miriam: Just a little two seconds on history. Back in the 1980’s, Supreme Court had a Rally case. That was the name of the case, Rally. The supreme said, “Look, your IEPs have to be reasonably calculated to enable the child to receive educational benefits.” The language was reasonably calculated, but nobody knew what that meant and right now, the school districts in different states are interpreting that differently. In some places–
Lisa: Right, because in Rally, they didn’t really explain what that level needs to look like because my understanding is they didn’t really have to. It didn’t become an issue in that case. Is that the recollection?
Miriam: Yes. Reasonably calculated was good enough for the Supreme Court in that case, but when the different states take a look at that and make practical decisions, they come up with different levels. Some circuits say, “You only have to give more than nothing, more than a trivial benefit.” That’s called the de minimis standard. As long as you’re doing more than nothing for that child, you’re all good.
Lisa: This is going to be the case standard at issue in this case coming out of the Tenth Circuit, but there’s also many other circuits that still follow this like the Fourth, the Second, Seventh, Eighth, Eleventh. I think those are all following this merely more than a trivial educational benefit standard.
Miriam: Yes. In Ohio, however, and other circuits as well, other states, we are looking at meaningful benefits. It’s not just enough in our state, in Ohio, to just give more than nothing. The child has to get some meaningful benefit. Here’s an interesting analogy. In the ’90s, there was a case in the Sixth Circuit, where the parents complained, the parents said, “Look, our child is not getting what he needs, and the court said, “The IDEA Federal Law does not require the districts to give a Cadillac to the child. The districts only obligated to give the education equivalent of a Chevy.” They also threw a little jab at the school district or at education in general saying, “Hey, look, the Chevy that this district has provided to the special education student is probably a nicer model than the average general education student.” I thought that was a funny little jab. I guess the point here is, as a school district, you don’t have to maximize the child’s potential, you don’t have to give them a Cadillac, just a Chevy. Just going off from that. A little while ago, there was a decision, an administrative hearing, a due process case where the hearing officer said, “Okay, the district is obligated to provide a Chevy, not a Cadillac, but in this case, the district provided a lemon.” [laughs] Obviously, in that case, the district got in trouble. I thought it’s funny kind of to extend that analogy to all different kinds of cars.
Lisa: The lemon sounds de minimis to me.
Miriam: Yes, exactly.
Lisa: You had mentioned earlier though the Sixth Circuit. The Sixth Circuit along with the Third Circuit seemed to be leading the charge a little bit going back with a case called Deal that really outlined more of this meaningful standard and evaluating the educational benefit. That benefit must be gauged in some former fashion and related to the child’s potential. I know you mentioned you don’t have to maximize that potential to what it ultimately could be, but the districts really do still need to look at what could the child do to have some form to measure this by. In that Deal case, they also really talked about that the courts need to heed congress’s desire to not set unduly low expectations for disabled children. We have this higher standard here in Ohio that follow the Sixth Circuit that is being sought in our upcoming case.
Miriam: I think the difficulty here always is that parents do often think that their children are really capable of everything and sometimes, they’re not. Sometimes a child, like in this case that we’re going to have, sometimes a child has a serious disability and they’re not going to be maximizing their potential to the extent that the parents feel they can.
Lisa: Right. As a parent, obviously, we all want the best for our child, but the courts are saying, “Just the best or everything that you want, the whole full kitchen sink isn’t going to be the standard that the courts are going to look to.”
Miriam: Right, because sometimes, you’re not going to have a child that has a serious disability that ends up being as well educated as kids without a disability. I think that’s kind of a good segue way. Do you want to talk about this case a little bit?
Lisa: Yes. Can you give us a little background on the facts?
Miriam: Here we have Joe and Jennifer. Their son, Drew, has autism. He’s in fourth grade. He’s got some pretty severe behaviors in fourth grade. He has tantrums. He climbs over furniture. He runs away. He even takes off his clothes and pees in the classroom. He has a lot of headbanging going on. The parents say, “This is not working for us. The program that you’ve developed, the IEP that you have for our child is pretty much the same from year-to-year. The goals are–”
Lisa: This kid, the behaviors were really impacting. I think my understanding was he’s being removed from class a lot. It wasn’t just these things were happening here or there. It sounds like it was actually really impacting his ability to be in class and to be educated.
Miriam: I think here the district really didn’t have a lot to show progress. That was one of the claims. The parents said, “Your progress reports are supposed to be showing the data that explains how our child is benefiting from your IEP and the progress reports are not informative. They don’t really show what they’re supposed to show. In fact, our child’s behaviors are increasing.”
Lisa: Right. Here, it’s not the parents were disgruntled from the beginning. We have a kid who’s in public school all the way through fourth grade. Parents had worked collaboratively with the team, and during fourth grade, they just got fed up with these behaviors escalating. Somewhere I read in the progress reports and looking at the IEPs from year-to-year, one example was the child was working on multiplication facts from 6 to 10 and then the next year, you see that that just expanded only from 6 to 12. You can see there’s not a huge change between the two goals from year-to-year. You can see how parents would be like, “Okay, I want my kid making more progress in this.”
Miriam: Yes, especially if it comes to behavior running away, taking off his clothes, I think those are really significant. At the end of this whole drama, the parents pulled Drew out and they placed him in a private facility in a private school and then they sued the district for tuition reimbursement. They said, “We want you to pay for this private school because you’re clearly unable to educate him with whatever you’re providing.”
Lisa: This is a typical scenario see with IDEA cases at least in our practice where–
Miriam: We see a lot of these.
Lisa: Yes, where parents get to a point that they get fed up with what the district is doing and pull the kid out, place them somewhere privately and then are going through the process so that they can get that money paid back to them for that private school placement, which can ultimately be pretty pricey depending on some of these private schools.
Miriam: The district, of course, remembers things differently. The district says, “Okay. We had 20 hours of services and a one-on-one aide for this child.” Yes, okay, the child wasn’t doing so well behaviorally, but he was making progress academically and socially. This is a child with severe autism. We’re not necessarily going to– And I think this is completely accurate. You’re not going to necessarily be able to fix every child with a severe disability like that, you’re not going to be able to fix them especially not as quickly as the parents want.
Lisa: Right, but one of the key issues here really– The focus was the behaviors increasing. We also see that a lot in these cases. Behavior seem to be the key problem that escalates the discourse between parents and schools, and how the behavior is being handled. Here, one of the issues that isn’t so great for the district is that they didn’t have a current functional behavior assessment or behavior plan in place, to address these behaviors when they were starting to escalate.
Miriam: I think also with a lot of special education kids, you make some progress in one area and then you’d go back. Some kids don’t make progress in other areas. It’s one step forward, two steps back. I think that’s just the nature of children with disabilities and parents- very often, parents don’t want to see that, they don’t want to recognize that. When the child, this is kind of it cuts both ways…When the parents placed the little boy in this private school, they did it at the end of the year, in June, and then in July, the private school said, “Hey, he met all of his IEP goals. He is on track, he met everything he was supposed to do this past year in the public school.” So, the district said, “Yes, that’s showing that he was making progress and that we were teaching him.” Then the parents said, “No, that shows that this private school got it done within one month, whereas, you guys couldn’t do it within a year.”
Lisa: This argument kind of goes both ways like you were saying. What’s interesting in this case is we have these behaviors, the team and the parents are kind of starting to argue about what was being done. At some point, they hold an IEP meeting. The parents say, “Yes, we’re not in agreement with this.” The district then later offers to involve an autism specialist and a behavior specialist to come to the next IEP meeting but that’s around the same time the parents pulled the child into the private placement so that never happened.
Miriam: Yes, they were like, “We’re done.”
Lisa: Then we have this kid in the private placement who’s supposedly making progress. My understanding from some of the information conveyed in the oral arguments is that the parents did, maybe six months later, come back to the district and say, “Hey, now that the behaviors under control, the crisis is averted, we’d like him to get educated.”
Miriam: Oh really?
Lisa: Yes, but the district then, which is a little problematic, only offers what they originally were going to offer instead of taking an approach of, “Okay, let’s try things a little differently this time. What else can we put in place? What was working?” It sounded like even though they made a prior offer for the autism specialist and behavior specialist at this point when the parents came back, that wasn’t on the table. From a practical standpoint, that was a little confusing.
Miriam: I don’t know why they did that.
Lisa: It certainly is against what we would normally probably advise a client to do in working with the parents to kind of come back together and problem-solve and do what’s best for the child.
Miriam: But here, in this state, in Colorado, the hearing officer and all of the lower courts held in the school’s favor and they said, “Okay, look. You know what? This was de minimis. The school provided more than nothing and that’s all they have to provide according to our state, according to our circuit.”
Lisa: He was making some progress.
Miriam: I think it’s significant that the Supreme Court took this case
Lisa: Yes. I think one of the things that really speaks to why the Supreme Court took this case is there are so many amicus briefs that were filed in this case. Anywhere from associations like Autism Speaks, The National School Board Association, even the Solicitor General of the United States all weighing in on this issue saying, “Hey. We have a split between the circuits. We have some circuits looking at this de minimis next to nothing standard, and some stepping up and looking at a meaningful benefit standard. We have to find a national standard here and make everybody kind of on the same playing field.” I think that’s why that the Supreme Court ultimately is looking at this.
Miriam: Because it’s a federal law. It’s a federal law, there’s not specifically different standards across different states. I think that’s really the heart of this issue here. The court’s going to be looking at this terminology. The oral arguments, if I remember correctly, were focused on the actual terms, the actual terminology.
Lisa: Yes. The oral argument were really interesting to listen to. It was definitely a whole lot of a language game. Like, “What words can we use to make things a little more clear?” We have a lot of parties involved here who really do want a higher standard, and I will say, listening to the justices’ conversing, ask their questions, it kind of seems like they are definitely not on board with de minimis being sufficient. Even going back to Rally, even thought they didn’t really articulate a clear level, it sounds like the justices get that if you have to show some benefit, some benefit means some benefit more than next to nothing, but they really wanted to clarify that. Some of the terms that they talked about in oral arguments, one proposed was using the terms equal opportunity and there was a lot of discussion of– But is equal opportunity-
Lisa: -practical? Equal has a lot of connotations in other areas of law, too, so what’s equal, especially when you’re talking about a student who has a disability, especially those with a really substantial disability where an equal outcome is not going to be appropriate or ….
Miriam: Possible, even possible.
Lisa: …. possible or realistic. Then they started playing around, too, with words like significant, meaningful was thrown out, and then are you looking at progress, what does that look like, what’s appropriate for the student? Really being circumstance-based.
Miriam: I think that kind of dovetails nicely with our next segment which is about what issues should schools consider when thinking about the possible outcomes of this case.
Lisa: For us here in Ohio, we do already have a meaningful standard so we are looking already past de minimis and I think a lot of districts would argue, and as you saw in a lot of this amicus briefs where different agencies can kind of give their two cents about the issue saying, “We, as districts– Hey, we are doing what’s best for kids. We’re giving services that these kids need. We’re doing more than next to nothing. Even though that might be the standard in certain circuits, the majority of districts out there, we want what’s best for kids. We want to do what they need.”
Miriam: I think one of the concerning aspects of this is how a district show progress. Is that how we want to measure whether the child received a free and appropriate public education? I think in the general education context, we all understand that. A child’s progress really involves many factors. A child could be limited in her progress because of issues at home, because of medication changes, because just of their environment and I think the nation-wide discourse on how we measure progress in the general education system acknowledges that but in special education, we kind of expect kids to make progress and if we’re not seeing that progress, it’s the school’s fault. That’s just a general issue that concerns me. On the other hand, Lisa, I’m not really sure how you would measure whether a child is receiving that free and appropriate public education if you’re not going to look at progress.
Lisa: I think there’s some consensus that obviously measures of progress is what needs to be looked at. It’s just how much of that progress do we need to see. Where there was some argument that as long as you see something, that’s what the court can look for because the courts aren’t well-versed in education and aren’t well-versed in this data that’s being collected. When a dispute comes before them, how are they going to understand what is before them to be able to make that measurement and make that comparison? That’s why there were some argument of this de minimis as negative as that term kind of sounds. You know the interpretation of as next to nothing they’re saying but as long as you can show something, that’s why that word “some” keeps coming up– If you can see something in the progress that at least is concrete enough, that a court could interpret that.
Miriam: Yes, I was just thinking about some of the– As we were talking, I was just thinking about some of the cases that I’ve had and sometimes kids who have disabilities are not making progress because really of outside factors. We had a student in a few districts, we had some kids– Emotional disturbance or autism that IEP is not showing progress. The progress reports are kind of up and down and then the school says, “Look, for this entire month, the parents were playing with medications trying to see what works for the child, what doesn’t work, or over here, the parents were going through some marital conflicts.”
Lisa: There are factors at play other than just what the school district is working on with the child?
Miriam: Yes. I think it’s a little bit difficult to just kind of pin everything on the progress reports. I think that’s going to be difficult for districts to handle if that’s where the Supreme Court is going.
Lisa: A legal point of view from that too, if we end up with an even higher standard than there is right now, whether it’s the meaningful or even higher than that, which is possible. We’re looking at more litigation potentially-
Lisa: -more disputes, more things going before the court and are they really equipped to make that distinction to weigh all those factors like you talk about or the local educators. I know we talked about this in our last podcast too. Local educators, local administrative process does lend itself a little bit to being able to wade through all of those circumstances a little bit better.
Miriam: I think there are so many good takeaways from this case though. I think the facts here really reflect some of the challenges that we see districts facing. Do you want to kind of go through some of those takeaways?
Lisa: Well, firstly, let me preface with, listening to the oral arguments, seeing all the briefs that are out there, I really think it’s safe to say that the court is going to lean towards a standard that is at least more than the de minimus.
Lisa: Whether that’s meaningful or they add in some more language about being significant and whether there’s some qualifiers about in relation to the circumstances or what’s appropriate for the student, I do think we should expect to see a little bit more of that language. But do definitely be prepared that I don’t think the court’s really going to provide any concrete guidance as to what districts need to do to determine how to reach that first student.
Miriam: I think it’s frustrating because it’ll be vague, but I think the court will deliberately make that vague to let it be open, to let districts formulate and craft the way that they interpret that. It’s kind of there’s some benefit to having it be vague, but then it’s also frustrating because it will be vague.
Lisa: Right. I think really sticking to the operating standards in your state, knowing what you need to do with IEPs procedurally and making sure you’re doing that. But then really looking at the substantive component of that. You know? Do your goals, make sense? Are your goals written in a way that you really realistically can keep track of progress and keep data and making sure you’re actually keeping that data. I can’t tell you how many times we talk with districts and we’re at a point of filing with a due process complaint and we can’t get data from the district. Or we have to sit down and talk with them and it sounds like, “Oh yes, they’re doing all the right things, but we don’t have the data and the paperwork and the proof that we would be able to show that moving forward.”
Miriam: Exactly. We do see districts where the teachers make notes and they write down what happened every day, but then the child moves on to third grade, the next class, and the instruction specialist, the intervention specialist or the speech and language therapist, they just throw that out because they’re like, “Okay, I don’t have this kid anymore, or the year’s gone by.” They toss that out and then when parents sue, we have to have the raw data because the parents say, “Okay, so your progress report shows all this progress, but from what we saw, our child was not making any progress, so show us the data, show us what you have to prove that these progress reports are actually accurate.”
Lisa: I think we make districts crazy as much as we harp on them about data, data, data but that’s going to be your saving grace when you do end up in a dispute.
Miriam: That’s key. That’s key. That’s because as a district, you really want to make sure that you are showing what you’re doing. I think often districts and teachers and therapists, they just don’t get enough credit for all the hard work that they do.
Lisa: Absolutely. Another point with that is keep that communication open with the parents, let them know all these great things that you’re doing. I think so often we go to meetings and just go through these IEPs and the parents might not really understand what it all means. Like what in a practical sense is happening day-to-day. The more open and clear you can be with that communication, I think it goes a long way in keeping parents happy and keeping that positive relationship. Because I can tell you once you get to the part where there’s a due process complaint, even if we’re not at a level of going to court, that relationship more often than not is pretty destroyed and it’s really hard to repair for the future years for that kid.
Miriam: Just going off that point, if you have a child who’s not making progress, the progress reports are not showing that the child is improving in his or her goals, you want to convene a meeting.
Lisa: Yes, meet, meet, meet right away. Meet, and talk, and discuss.
Miriam: Yes. You don’t want a whole year to go by. You don’t even want to half a year to go by and the parents are suddenly, you know, six months down the line, 12 months down there, they’re like, “What’s going on? Our kid’s really kind of doing the same thing. And, in fact, the next year’s IEP, sometimes we have districts who are like, “Okay, well, Bobby didn’t meet this year’s IEP goals, so we’re just going to copy them to next years’ goals.
Lisa: Right, and same with behavior plans, I can’t tell you how often, like a district might develop a great behavior plan, but then it’s not looked at again for two or three years and maybe there’s some other strategies that would work better. Revisiting those documents and really making it a work in progress. Not, we meet once a year, we write this paperwork and then it goes up on a shelf. Really making it be a useful document.
Miriam: I know it’s a lot of work, but we often, when we work with districts, we like to see teams meet after every progress report if that progress report is not showing the appropriate progress. Let’s say you have a goal of the child is going to meet a 60% threshold for appropriate social communications, 8 out of 10 times, and in your first marking period, in your first progress report, you see this child is still at like 30%. You as a team, you want to consider meeting at that point and you want to say, okay, were these goals too ambitious? Should we try something else? You want to do that because of what you said, Lisa, you want to reach out to the parents and show that you are thinking about the child. You’re thinking about the child’s education, you’re trying to collaborate with them. I think you’re protecting yourself when you do that as a district.
Lisa: Yes, and sometimes I think it’s a change of frame of thought as not just, “Oh this is the paperwork we need to do.” Especially with the progress reports. I know for really busy teachers and intervention specialists and special education educators, it’s one more thing they have to do.
Lisa: But really making those useful tools to see, “Okay, yes, look how great this kid’s doing,” or “Okay, this area we need to try something different.” And not just waiting until the next yearly IEP comes around to say, “Oh, well, crap, now you didn’t make progress in this whole area. Now, what do we do?” At that point, it’s a little late. You could have tried all kinds of different things, really be creative and the more you can show that you looked at how the kid was progressing and tried new things to make that progress come about in those different areas, the better.
Miriam: Yes, I think those are really, really the key takeaway points here.
Lisa: Yes, like I said, pretty interesting case. I think we’ll probably get a decision about this sometime maybe June-ish, sometime this summer hopefully. From maybe next school year we’ll have a little more clarification.
Miriam: We will keep you up-to-date.
Lisa: But again, like I said, it’s doubtful we’re going to have super specific guidance, so this is just going to be one of those areas to really just be diligent about what your practices look like and doing what’s best for kids.
Miriam: All right. Thank you so much for listening. I hope you enjoyed this podcast and please give us some good ratings on iTunes or Stitcher or wherever you get your podcast from. Next time we meet, we’re going to have a fantastic segment for you about a pretty controversial issue. Transgender students in schools.
Lisa: Yes, and what are some of the things you guys need to be thinking about and brainstorming and have on your radar.
Miriam: Especially with this new administration change, I think that’ll be so interesting.
Lisa: All right, until next time. The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of the information contained in this podcast.