It’s almost impossible right now to keep up with all the stories circulating. Congress is defunding the ACA. The Republicans voted down an amendment against mandating coverage of people with pre-existing conditions, condemning millions of people to an early death, if that actually ends up being law. Donald Trump’s banana republic press conference demands a unified response from the press, and not to mention that until he releases his tax return, we should assume he is financially compromised by both Russia and China, and will make his military decisions based on his personal financial wellbeing. I haven’t even gotten to the vaccination story yet. We’re overwhelmed.
Next week, I hope to write more about being overwhelmed and some thoughts from the Berlusconi era in Italy on how to respond (I’ve been waiting for someone else’s piece to emerge).
In the meantime, SCOTUS heard a case that could prove vitally important to special education across the country. Special education is federally mandated, but was never funded (it was supposed to be funded, but you know Congress …).
There’s a very real chance that the Supreme Court will rule that school districts must go beyond “de minimis,” meaning education that takes us beyond the minimum possible, to a standard “aimed at significant educational progress in light of the child’s circumstances.” That would, to my reckoning, represent an enormous judicial push to improve special education standards across every school district in America.
And then … well, then there will be a lot of local battles between family and schools to come. But the IEP process is already so fraught, so filled with litigation, that I have a hard time believing it’ll get worse.
At today’s oral argument in the case of a Colorado student with autism, one thing seemed relatively clear: The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial. It was less clear exactly what standard (if any) the justices might substitute for the “more than merely de minimis” standard, but a standard “with bite” – as Justices Ruth Bader Ginsburg and Elena Kagan put it – would be a welcome development for children with disabilities and their parents.
A standard “with bite” could be pretty good. It’s not inconceivable that this SCOTUS could provide such a thing.
And yet …
Despite Fisher’s efforts to focus the justices on the text of the statute, they remained skeptical. Justice Anthony Kennedy expressed concern about what new costs Fisher’s proposed standard might impose on school districts, by requiring them to provide additional services, while Justice Stephen Breyer worried aloud about the propriety of the justices – who, he suggested, “don’t know much about” education – creating a standard that could then be interpreted differently by “judges and lawyers and people” all over the country.
Chief Justice John Roberts flagged a different potential problem, echoed by Kagan: How would Fisher’s proposed standard work for students who, because of their disabilities, may not be able to follow the general educational curriculum? Suggesting that there is some “flexibility” in the IDEA, Fisher advanced a slightly different version of his proposed standard: A student’s IEP should generally “be tailored to achieve a general educational curriculum at grade level”; if that is not possible, the IEP should use alternative benchmarks that are “the highest possible achievable by the student.”
So what’s going to happen? Who knows, but here’s the key possibility:
Today’s argument ended with the justices on the horns of a dilemma, as they so often are. Despite excellent advocacy from all three lawyers, there is no clear and easy answer. But they seemed sufficiently unhappy with the “more than merely de minimis” standard that they are likely to strike it down. The standard proposed by the federal government – which would require the school district to offer a program “aimed at significant educational progress in light of the child’s circumstances” – seems to be the most likely replacement, both because the justices regard it as most consistent with existing law and because it comes from the Department of Education, which – as Breyer noted – has expertise in issues related to education and the IDEA. And even if it’s not the standard that Drew and his family are advocating, they would no doubt nonetheless regard it as a significant victory. A decision in the case is expected by summer.