Appropriate

Today, the United States Supreme Court heard oral arguments in a special education case, Endrew F. v. Douglas County Public Schools. In that case, the Supreme Court is tasked with deciding whether the student, Endrew F., received a free and appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA).

Endrew F. was a student at Douglas County Public Schools in the Denver-metro area. He has autism, and was on an IEP (individualized education program). For those of you who do not live in this world of special education acronyms, an IEP is basically the plan that the parent and the school put together each year to define the accommodations and modifications the child will need in order to get through the school day and hopefully learn. IEPs have goals for the child. For example, Gracie’s goals include things like maneuvering her walker through doorways without having to be reminded about the wheels.

Anyway.

Endrew F.’s IEP had very minimalistic goals that he was meeting, but they did not bring him closer to the academic level of the other kids. He was falling more and more behind each year. In his Fourth Grade year, Endrew developed behavioral problems, which escalated through the year and became severe by the spring. The school and Endrew’s parents disagreed about how to best accommodate Endrew’s needs in the school environment. Endrew’s parents requested a behavioral intervention, and the school district eventually scheduled a meeting with a behavioral specialist, but the meeting never occurred. Endrew’s parents withdrew him from the public school in April of the school year and enrolled him in Firefly Autism, where he is now thriving.

This is where it gets interesting. Endrew’s parents billed the school district for the cost of enrolling Endrew in private school, arguing that he was denied a FAPE. The district, of course, did not pay. The parents engaged in the administrative review process, where the hearing officer determined that because Endrew was meeting his IEP goals he was receiving “some educational benefit” that was more than de minimus – more than nothing. The parents appealed, and the 10th Circuit upheld the hearing officer’s decision that even though Endrew was falling more and more behind his classmates, he was making some progress, so he was receiving a FAPE. The 10th Circuit seemed sympathetic to Endrew’s plight but did not have a remedy for him.

I read through the whole transcript of the Supreme Court’s oral arguments. It seemed that the Supreme Court, too, was sympathetic to Endrew – the Court seemed to acknowledge that it would be crappy to say that because he received more than no benefit he received a FAPE. However, the Court didn’t have much of a remedy to offer Endrew, either. They were practically asking Endrew’s lawyer for a solution, and he didn’t really have one to give. His amicus (“friend of the court”), the U.S. Solicitor General, offered to the court that most children would be able to perform at or near grade level, but for those who would not be able to perform, the standard could be “significant” or “meaningful” progress toward grade level.

The Supreme Court Justices can be rather harsh toward those who appear before them. It was stressful to read the interchange between the lawyer for Endrew F.’s family and the Court; the Court seemed to be pressing him for a solution to the problem and he did not propose one. The interchange between the Solicitor General and the Court was slightly better; clearly, he is familiar with the court and is comfortable interacting with the Justices. Likewise, the interchange between the lawyer for the school district was less stressful; the Court grilled him and did not appear sympathetic to his argument that the lower court did the right thing.

Why, you might ask, am I giving a detailed analysis of the Supreme Court’s oral argument in this blog? Well, two reasons. First, I’m a legal nerd at heart and need an outlet to voice my opinions about this case. Second, and more importantly, I’m Gracie’s mom and I already knew about FAPE and IDEA and IEPs long before this case came down. That’s the world we live in, the world of special education and politely fighting with educators and schools. Oh, I’m sorry, it’s called ADVOCATING.

We have already been through a lot with schools, more than most parents of 6-year-olds. That whole debacle with Anchor Center taught me the uglier side of schools, and the limitations on the willingness of private schools to care about children who don’t fit their profiles. It also taught me that advocating for my child is one of my inherent strengths. You would think it would be a strength of any parent, but that is not actually the case, surprisingly.

Then, at Fletcher Miller we learned the other side of schools. All of the special education teachers we dealt with at Miller were amazing. I can’t say enough good things about them. They set Gracie up to succeed in elementary school by including absolutely everything in her IEP that could help her – they even thought of things like using larger manipulatives for math (little cubes to help kids count) and giving her a chair with arms so she wouldn’t accidentally fall off. Miller was our first IEP experience, and I have to say, it was a very good experience. Gracie’s Miller teacher accompanied me to the IEP meeting at her current school before her kindergarten year, and helped explain to the IEP team what assistance Gracie would need to get through the school day.

Gracie has an IEP in place for this year. There are goals on her IEP, but they are focused on gross and fine motor tasks, the areas in which Gracie has the greatest delays. She does not have cognitive difficulties, so her IEP goals do not cover academic substance.

Even so, the Endrew F. case could affect her. If Endrew F. loses at the Supreme Court, the law of the land becomes that a school need only provide “some educational benefit” that is more than nothing. Anything more than nothing counts, as stated by the 10th Circuit, and that is terrible. Children could get left behind, and their parents would have no recourse except to pay for private schooling (IF they could find it) at great personal expense. Gracie is one of the lucky ones – her disabilities are physical. For children like Endrew F. who are difficult to educate and unable to voice their own feelings, the road could be more rocky.

More than nothing is not much. Let’s hope the Supreme Court does the right thing and finds a way to provide Endrew F. and all other special education kids in the U.S. with the free and appropriate public education they deserve.

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