What’s in a Phrase: Will the “Free and Appropriate Public Education” Standard Mean as Much When the U.S. Supreme Court Interprets It?

Written by: Dirk Zuschlag

Primary Source:  Green & Write, October 20, 2016

One Little Case and One Big Law

Courtesy of en wikipedia.org

Drew was diagnosed with autism at age two, ADHD at three. He accepted special education services from the Douglas County, Colorado schools beginning in preschool.  After an especially difficult fourth grade, Drew’s parents rejected the individualized education program (IEP) the District had proposed for the next year. They then enrolled Drew in a private school specializing in education for autistic children. Since Drew’s parents incurred tuition costs, they asserted that the District must pay because its IEP was inadequate under the federal Individuals with Disabilities Education Act. Their case is now pending before the Supreme Court.

The IDEA requires school districts receiving special education funding to make a “free and appropriate public education” available to each disabled student through an IEP tailored to their specific needs. When an eligible child’s parents believe their district’s IEP fails to comply with the Act, they may obtain alternative education for their child and then claim repayment from the district for the resulting expense. If the district denies reimbursement, the IDEA specifies a dispute resolution process beginning with a hearing conducted by an administrative law judge (ALJ), followed by the option for appeals through all three levels of the federal court system.

Drew lost his case before an ALJ, a district court, and a court of appeals. All held that the Douglas County school district had provided Drew a free and appropriate public education within the meaning of that four-word phrase. Yet, although full review is granted only to about 80 of the 7,000-8,000 appeals it receives each year, the Supreme Court on September 29, 2016 agreed to hear Drew’s case (see here, here and here). It will decide the following question:  “What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by IDEA?”

One Short Phrase With Discordant Interpretations

U.S. Circuit Courts of Appeal Regions - Courtesy of commons wikipedia.org

U.S. Circuit Courts of Appeal Regions – Courtesy of commons wikipedia.org

Why did the justices accept this case? The answer probably turns on what happened to the Court’s interpretation of the same phrase almost 35 years ago. In Henry Hudson Dist. Bd. of Ed. v. Rowley (1982), the Court did not establish “any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.” Rather, it ruled that a district satisfies its legal obligations of providing a free and appropriate public education if each eligible child receives “some educational benefit.” On review in any given case, an IEP “reasonably calculated to enable the child to receive educational benefits” would satisfy a district’s legal obligation. ALJs and lower courts were left to give that standard substance through the inductive process of applying it to particular cases over time.

Perhaps unsurprisingly, different federal courts of appeal, whose decisions cover cases in different “circuits” or regions of the country, have developed different standards. Some, like the one deciding Drew’s case, have defined the “some benefit” standard to “merely be more than de minimis.” Others have adopted a heightened standard, holding that the “some benefit” standard requires a “meaningful educational benefit.” The result is that the courts of appeal are split on the correct interpretation, and only the Supreme Court can definitively resolve the conflict so that the federal law has the same meaning nationwide. Absent Supreme Court action, the rights and benefits under the IDEA will continue to vary depending on the happenstance of one’s residence. As the U.S. government’s brief in support of Drew’s appeal points out, a disabled student living in New York City might lose because the Second Circuit Court of Appeals uses the lower standard, while a similar student in New Jersey, where the Third Circuit uses the higher standard, might win (see also here for the government’s role in this case).

A Second Supreme Court Interpretation With Uncertain Impact

A USA Today article on Drew’s case has implied that the Court’s ruling may have a large effect since “[t]hroughout the country, thousands of dissatisfied parents and guardians have battled school districts for decades over what they consider inadequate efforts to educate children with disabilities. Many students have been moved from public to private schools, and parents often go to court seeking reimbursement based on the public schools’ alleged failure to educate their children.” Its actual impact, however, will depend on what the Court says and how it says it.

Even if the Supreme Court opts for a higher standard, Drew’s parents will not necessarily win automatic reimbursement. The Court may instead direct a lower court to apply any new standard to Drew’s circumstances, and, as with Rowley in 1982, it will take some time for lower courts to flesh out its meaning in practice through case-by-case adjudication.

The Court will set the case for argument early next year, with a decision likely by June. The wheels of judicial interpretation do turn rather slowly, but Green & Write will continue to follow this case in the months ahead.

Contact Dirk at zuschla2@msu.edu

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Dirk Zuschlag is a second-year education policy doctoral student. His research interests involve the interaction of teacher professionalism and accountability policies. Prior to entering MSU, Dirk taught public high school social studies for sixteen years and served as a learning coach and staff developer. He also spent thirteen years practicing law earlier in his career. He has a J.D. and an M.A. in Education from the University of Michigan, as well as a B.A. from Duke University.