The New Year has already seen developments relevant to several posts from the last quarter of 2016. Here’s a brief update.
While the Connecticut School Finance Case Pends
Last September, a Connecticut trial court issued its decision in CCJEF v. Rell, a long-running case where the issue was whether the state education system denied students their state constitutional right to “adequate” educational opportunities. In an unexpectedly sweeping decision, Judge Thomas Moukawsher not only voided the state’s school finance system, he also declared unconstitutional entire areas of state education policy (original post here). The Connecticut Supreme Court accepted the state’s expedited appeal and stayed the trial court order. The case remains in the “briefing” status, a period which may last until April, with oral argument and decision to follow, probably months thereafter.
Meanwhile, however, two developments may affect the ultimate resolution disposition of the case. First, the two most recently filed amicus curiae (“friend of the court”) briefs were submitted by the state Office of Protection and Advocacy for Persons with Disabilities and by a national advocacy group for the disabled and its state affiliate. These organizations argue that the trial judge’s analysis and findings on special education services seem to contradict disabled students’ rights. Further, in December the U.S. Department of Education wrote to the state education commissioner with its own concerns about this major aspect of the lower court’s opinion. If the state supreme court is inclined to narrow or reverse the trial court, these arguments may give it an easier path. Second, school finance reform is high on the agenda of the Connecticut legislature, which convened on January 4th. With the state facing a large budget deficit, the governor in his state of the state address promised a new education funding formula. Although the overall funding level may fall, a more equitable system in the face of state fiscal stress may help the appellate court justify its rejection of the far more disruptive and expensive implementation of the lower court’s order.
U.S. Supreme Court Hears IDEA Case
This past Wednesday the Supreme Court heard oral argument in Endrew F. v. Douglas County School District, with the Court’s subsequent decision to answer this 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 [“FAPE”] guaranteed by IDEA [Individuals with Disabilities Education Act]?” Since the Court last interpreted the FAPE requirement in 1982, lower federal courts have applied inconsistent standards, including the one applied in this case, holding that the district-provided educational benefit must “merely be more than de minimis” (original post here).
The fact that an eight-member Court granted the plaintiffs’ appeal and has proceeded through the final step before decision (though that may take months) suggests that a tie vote is unlikely. Yet, although it thus seems the Court will try to clarify the FAPE requirement in some revised way, the oral argument suggested its practical concerns and linguistic struggles (full transcript at second link here; see also here). As to the latter, several justices debated various formulations, with Justice Alito toward the end lamenting that “[w]hat is frustrating about this case and about this statute is that we have a blizzard of words.” As to the former, the justices seemed to balance the desire for a standard with “bite” to benefit disabled students with worries about imposing unfair costs on schools.
The Court’s decision will be significant, doubtless in time affecting disabled students and their schools. But however the Court ends up defining the level of educational benefit due disabled students, it will probably prompt more widespread litigation to develop its meaning and application.
ESSA “SNS” Rule: Never Mind, For Now
The U.S. Department of Education spent much of 2016 in the process of promulgating formal rules governing the implementation of the Every Student Succeeds Act (ESSA). One of the more contentious concerned the ESSA’s revised “supplement, not supplant” (SNS) requirement, which is supposed to ensure that federal money is used to improve local education services in poor areas, rather than to replace existing funding. As of last November, and unlike other controversial ESSA rules, the USDOE had yet to issue a final SNS rule (original post here).
This is an odd “update” since nothing further has happened, and the new administration is about to take office. Thus, while Republicans must rescind other ESSA rules through the Congressional Review Act—actually they are reportedly planning to amend the Act to further expedite multiple rule repeals—the Trump Administration may opt to follow the pre-ESSA SNS rule and/or propose its own in due course. One thing’s nearly certain: SNS under the ESSA won’t satisfy civil rights and other groups that had supported the version proposed only a few months ago.
Wither DeVos’s Specific ESSA Policy Preferences
As befits a controversial nominee for Secretary of Education with a long history of partisan political activity, Betsy DeVos garnered three Green & Write posts last year (here, here, here). Although Devos’s general policy preferences and related political activities are well known, her specific priorities as head of the USDOE remain opaque at best, particularly concerning the ESSA, its prospective implementation rules, enforcement, or amendment. Her Senate confirmation hearing, which was postponed a week to this past Tuesday, does not seem to have clarified matters. Controversy notwithstanding, Devos is likely to be confirmed, perhaps in a vote next week. A fuller Green & Write update will be forthcoming.
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