Friday, March 24, 2017

Analysis of the Supreme Court Decision in Endrew F.

Endrew F. Case Analysis and Comments by Mark Gross

The Supreme Court divides children into two groups – those who have the cognitive ability to achieve at grade level and those who simply cannot.  This may be a bit simplistic, as a lawyer told me yesterday, and that is true.  But for purposes of the decision, that is how the Court divided the world of IDEA students and I suspect the reality is that a lot of our clients usually can be placed into one group or the other.
                Regarding the first group – those who can advance from grade to grade by performing at grade level – the Court essentially says that an “appropriate” IEP is one that will allow the child to legitimately advance to the next grade by performing at grade level.  That means the grade level achieved by other children of the same age.  The decision is aimed at academic progress, not behavioral progress.    It seems to me we can stretch that a bit to include behavioral issues that were really not discussed here.  We could argue that behavioral issues can be assessed as part of the IEP under this same standard if the behaviors, if unaddressed, easily could cause the child to fail to advance.  Essentially, the Court said that the decision it reached in the Rowley, which was that the help she received was sufficient to allow her to move legitimately from grade to grade, was sufficient under IDEA.
                The Court says the IEP must be “assessed” in light of the child’s circumstances,” which is obviously correct, and unexceptional.  I have heard some concern over this, as if it is a significantly limiting factor.  I disagree.  Each IEP is tied to the student’s unique needs, or unique “circumstances.”  Nothing new or troubling here.  So, for these students the progress that is “appropriate” is moving legitimately from one grade level to the next grade level. See p. 11.  On p. 12, the Court describes these students, whom it describes as those educated in the regular classroom, as taking “regular examinations,” receiving grades, and attaining “an adequate knowledge of the course material.” P. 12.
                I am using the word “legitimately” only because I am a bit concerned that the Court’s emphasis on moving the child with a disability from grade to grade could result in more “social” promotion just to be able to say their IEP is working.  I think it is something to be on the lookout for.
There has been some discussion of what the phrase “fully integrated in the classroom” means in Endruw and whether inclusion programs are affected.   I think not.  The Court said, “When a child is fully integrated in the regular classroom, as the Act prefers, what that typically means is providing a level of instruction reasonably calculated to permit advancement through the general curriculum.” Pp. 13-14.   The next sentences read as follows; “Rowley had no need to provide concrete guidance with respect to a child who is not “fully integrated in the regular classroom and not able to achieve at grade level.  That case concerned a young girl who was progressing smoothly through the regular curriculum.  If that is not a reasonable prospect for a child, his IEP need not aim for grade-level advancement” (emphasis added).  P. 14.
This language I think well establishes that that when the Court refers to students “integrated in the classroom” and operating in the “general curriculum,” it is referring to students operating at the same grade level of the rest of the students in the class.  It is not, in any way, discussing a student in an “inclusion” program who may be placed in the regular classroom in part for socialization benefits but who is operating with his or her own adapted curriculum that is NOT at the same level as the other students. The adapted curriculum is often significantly below that level.  We should not read things into the word “integrated” that were not before the Court.  The concept of “inclusion” was not in any way a part of the decision in this case.
                The best part of the decision is the discussion for the second group -- those the Court refers to as “not able to achieve at grade level.” P. 14.  To be precise with an example, I have a 35 year old son with Down Syndrome. He operates at about the cognitive ability of a 2nd or 3rd grader.  He falls within the second group.
                It is here that I think the Court’s language is really, really good.  The Court describes the IDEA as “an ‘ambitious’ piece of legislation.”  Dec. at 11.  “A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”  The words “pervasive and academic stagnation” – particularly “stagnation,” where schools often leave students is important to note.
                The Court then uses words we (or at least I) have never before heard or read when courts discuss what children who cannot learn at grade level deserve.  It says the educational program must be “appropriately ambitious,” and the objectives of the plan must be “challenging.”  P. 14.  This standard is “markedly more demanding than the ‘merely more than de minimus’ test applied by the Tenth Circuit.”  The Court also says that the language in Rowley that referred to “confer some educational benefit” actually had “little significance,” p. 10, thereby driving a stake through the heart of the standard school districts have been relying on for decades to minimize their programs.   “Ambitious,challenging,” and “markedly more demanding than de minimus” all sound very positive and aggressive.
                I also found one other area that I liked, at the very end of the decision (p, 15).  The Court talks about deference to school authorities.  It says, “deference is based on the application of expertise and the exercise of judgment by school authorities.”   The decision then briefly discusses the process, stating that by the time the dispute reaches a federal court “school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.  A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions… .”  (emphasis added). P. 16.  This language seems to me to tell federal judges that if they are going to defer to school officials’ “expertise,” the school officials are going to have to be able to explain “cogently” how they applied that expertise in a specific case with specific facts.  It allows a little less of the “trust me, we educators know what we are doing and you just cannot understand it“defense school authorities may make.

Mark Gross serves as Of Counsel to the Law Office of Brian K. Gruber, P.C.   Mark recently retired from a long and distinguished career as Deputy Chief in the Appellate Section in the Civil Rights Division at the U.S. Department of Justice. Mark is also a professor at American University School of Law.

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