Discussion Starter: Educational Benefit, Pt. 2

Back in January, I wrote about Endrew F. v. Douglas County School District. The US Supreme Court recently reached a unanimous decision in the case, siding with the family. Fry v. Napoleon Community Schools caught national attention earlier this year, partly because of a cute dog. This latest decision became attached to Neil Gorsuch’s Senate testimony per his ruling in a similar case. Both cases briefly stirred headlines for reasons other than their importance in special education.

Endrew F. eclipses Fry in potential magnitude. The core of the case is educational benefit. Must schools ensure students with IEPs simply make some measurable progress, or must they prove this progress is meaningful? The Supreme Court has found something closer to the latter, with the ruling mandating schools must prove students are making appropriate progress per each student’s circumstance. Although the difference might seem subtle, the scope is enormous. Future special education teachers will study this case as undergraduates.

“Appropriate progress” will be the focus of case-by-case deliberation, but it’s a leap from the previous requirement of schools to demonstrate discernible growth within a student’s program. The new implication suggests there is an acceptable range of progress for each student. Defining this range could be difficult. Some families will reject any deterministic range based on evaluation findings that the schools offer. Some might interpret “appropriate progress” as needing to be aligned with age and grade level progress. Such a conception of progress would be ideal, but in many cases would belie the range of abilities that led to a special education evaluation. Regardless, the built-in controversy seems to forecast a bumper crop of due process hearings.

As with Fry, advocates have heralded the decision in Endrew F. as a victory for students with disabilities. I wonder if it will be. My prediction is the same schools that currently struggle to meet the requirements of IDEA and of existing IEPs will continue to struggle. Now families will have more leverage to come after these schools for compensatory education when students fail to make “appropriate (and possibly unrealistic) progress.” I suspect this ruling will do at least as much to create additional settlements as it will to help students with disabilities get better at reading, writing, or doing math. It certainly will increase pressure on schools and might set some up to lose.

Any thoughts from readers? How will IEP teams define “appropriate?” To what degree will this decision shift special education in practice and even in concept? Does anyone else see this as a path to increased litigation? Share your insights in the comments.

 

 

 

Discussion Starter: Educational Benefit, Pt. 2

Discussion Starter: Possible Repercussions of Fry v. Napoleon?

Often when special education practice or protocol change because of a precedent-setting legal case, the public scarcely pays attention. In mid-February, a case made its way to the Supreme Court and then through the news cycle, getting a handful of people talking along the way. For the most part, the ensuing conversation was about incidental factors rather than about the actual issue before the Court. I’m wondering just what the longterm effects of the Court’s decision will be.

To any readers unfamiliar with the case, Fry v. Napoleon Community Schools examined whether or not families must exhaust recourses available through IDEA before seeking damages for discrimination via other laws. The case also involved a young girl with cerebral palsy and her service dog, a photogenic Goldendoodle. Most people will remember the case being about the school denying a service (and an adorable, fluffy service) to this girl. It really wasn’t about that.

True, its genesis was the school’s denial of the girl’s use of the service dog on campus. With paraprofessionals in place to meet the girl’s needs, administrators saw the dog as unnecessary. The family eventually pulled their daughter and placed her in a school that would allow the dog. This wasn’t before the moment that generated a discrimination suit.

In an effort to determine whether or not the dog could assist the girl as the family claimed, staff had the girl demonstrate how the dog could help her in a bathroom. She didn’t have to use the bathroom in front of staff, but instead she had to show the dog’s capacity to assist her physically. Per the family and their attorney, the scenario was invasive and humiliating enough to warrant a discrimination suit seeking emotional damages.

District Court dismissed this. The reason? The family hadn’t followed due process through IDEA before seeking damages. Such emotional damage suits aren’t within IDEA’s scope, as it deals with issues of access. Regardless, the decision stood. The parents appealed.

The Supreme Court heard the case in the fall and issued their decision this winter. They sided with the family, stating the need to go through IDEA due process shouldn’t apply in situations that involve emotional damage claims and other similar forms of discrimination.

What will this mean for various stakeholders? Perspective matters here. My experience in special education suggests this could become a new area of disability law for attorneys to exploit. Parents of children with disabilities might have greater leverage from which to seek emotional damages in various instances of perceived discrimination. Potentially any situations in which schools allegedly single out children with disabilities could be claimed as spurring an emotional hardship. Limits would exist of course, as some students end up being singled out at times per the delivery of their IEPs. Still, parents might be more encouraged to pursue damages knowing fewer hurdles exist per this precedent. I could see this becoming expensive for schools.

The other perspective to take would be to see this as a victory for parents and for children with disabilities. Another protection against discrimination could emerge from Fry, thus holding schools accountable in instances of genuine wrongdoing. It may clear some of the confusion over how to redress such wrongdoings. Instead of looking at this as a new way for schools to lose, one could look at it as a way to keep schools in check, and thus improve services.

What do my readers think? Will this case be a precedent-setter? Will it lead to the increase in discrimination suits I predict? Do you see it as more of a loss for schools or as a victory for families? Share your thoughts in the comments.

 

 

 

 

Discussion Starter: Possible Repercussions of Fry v. Napoleon?

Discussion Starter: Educational Benefit?

Last week, the US Supreme Court began hearing a case regarding one of special education’s trickiest corners: educational benefit. Parents and schools have clashed over the concept for decades. The essential question involves how much benefit students with disabilities are expected to, even entitled to receive from their education. Take a moment to consider how nuanced this question is. Should the expectation simply be that students make at least some progress? How will the acceptable level of progress be quantified? Is there any definitive way to prove a lack of progress is the fault of the school?

The case in question concerns a student with ASD and ADHD not making progress in a public school. The parents sent him to a private school, at which he allegedly made progress. The family wants the district to pay for the placement. Such requests are fairly common. The key to the case will be proving the student wasn’t making progress at the public school due to some lacking on the part of that school, thus making the placement at the private necessary for educational benefit. Also before the court is the issue of what should be considered an acceptable level of progress. Was the student reaching this? Was providing access to an appropriate curriculum enough, or did the school have to ensure a certain echelon of performance? If so, what should that be? 

Many advocates push for schools to ensure meaningful progress. This will be difficult to define. A student with a severe intellectual disability and a sensory impairment will have a different capacity for growth than that of a student with a learning disability who is also gifted. If meaningful progress is quantified and applied to schools via precedent or even an eventual adjustment to IDEA, what is that going to mean for schools that are barely able to keep enough paraprofessionals in their building to help students go to the bathroom? Will schools be expected to move beyond the notion of simply providing access to FAPE and towards an expectation of the best possible educational opportunity? What happens when students, despite a school’s best effort, still make insufficient progress? Will pending adjustments result in better educational outcomes, or simply an increase in due process cases schools in which schools have little means of defense?

I turn the matter to my readers. Should schools be lashed to a requirement for meaningful educational benefit? What should be the definition of “meaningful?” How will it differ from the current expectation of progress being noted during an IEP term? I don’t think any issue in special education is as wrought with controversy. I look forward to your comments.

Discussion Starter: Educational Benefit?