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SCOTUS decision could have ripple effect on NOLA Charters

27th March 2017   ·   0 Comments

By Christopher Tidmore
Contributing Writer

Last Wednesday, the U.S. Supreme Court issued a major decision expanding the scope of students’ special education rights, ruling unanimously that schools must do more than provide a “merely more than de minimis” education program to a student with a disability.

This decision could majorly impact Louisiana’s charter schools, particularly Orleans Parish’s nearly complete charter system. Special-education advocates have long complained that charter schools provide insufficient resources for “special needs” students in comparison to the special ed programs that existed prior to Hurricane Katrina.

The ruling could require the reestablishment of schools for special needs students in New Orleans, or it could mandate that the Orleans Parish School Board provide private school tuition for special ed students if insufficient educational options exist in the charter-based system.

In Endrew F. v. Douglas County School District , the high court rejected the “merely more than de minimis” standard set by the U.S. Court of Appeals for the 10th Circuit, in Denver. As Education Week magazine noted, “That language was also used in an opinion in another special education case by Judge Neil M. Gorsuch, President Donald Trump’s nominee for the Supreme Court.”

“Gorsuch has already faced criticism for his own ruling reflecting the ‘merely more than de minimis’ standard, and he was questioned by the Senate Judiciary Committee about the Supreme Court’s ruling before the morning ended.”

Chief Justice John G. Roberts Jr. authored the opinion for the eight-member court, and he delivered much of it from the bench on March 22.

“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” Roberts said. The resources provided by local charter schools to special ed students. By law, cherry schools must accept “special needs” students, but there are only a few mandates on the specific services that Louisiana Charters must provide—consistent with the philosophy that charter schools are free to govern themselves as long as the overall educational successes meet state minimum standards.

Justice Roberts continued, “For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly … awaiting the time when they were old enough to drop out,’” he added, quoting from key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, that also dealt with the Individuals with Disabilities Education Act.

“The IDEA demands more,” the chief justice said. “It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

As Education Week magazine noted, “That standard was the one suggested by President Barack Obama’s administration, in one of its final arguments before the justices in January. The decision comes in the case of a Colorado student named Endrew F. whose autism led to behavioral issues in school. After four years in the Douglas County schools, near Denver, the boy’s parents believed his academic and functional progress had stalled. Endrew F.’s individualized education programs largely carried over the same educational goals and objectives from one year to the next, Roberts observed, ‘indicating he was failing to make meaningful progress toward his aims.’”

The parents pulled the boy from public school amid a dispute over his 5th grade IEP and enrolled him a private school specializing in autism, the Firefly Autism House.

“Firefly … added heft to Endrew’s academic goals,” the chief justice said. “Within months, Endrew’s behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school.”

Under established precedents, the family sought reimbursement from the Douglas County district for the private school tuition. They lost before a state administrative law judge, a federal district court, and the 10th Circuit, Education Week noted.

The appeals court said that the Supreme Court’s Rowley decision merely requires an IEP to provide “some educational benefit.”

The appellate court said it was relying on 10th Circuit precedent that interpreted that passage of Rowley to mean that a child’s IEP is adequate as long as it is calculated to confer an “educational benefit that is merely more than de minimis.”

The appeals court then cited to the opinion by Gorsuch in a 2008 decision, Thompson R2-J School District v. Luke P.

In his opinion in that case, Gorsuch had cited to an even earlier 10th Circuit case for the “more than de minimis” language, but he added the word “merely,” and that formulation was debated by the justices during oral arguments in Endrew F.

Chief Justice Roberts opined upon the Rowley decision and explained its reference to IEPs conferring “some educational benefit” and other language “in isolation do support the school district’s argument.”

“But the district makes too much of them,” Roberts noted. “We cannot accept the school district’s reading of Rowley.”

Roberts continued the “reasonably calculated” standard will not require an “ideal” IEP, but one that “must aim to enable the child to make progress.”

And “that the progress contemplated by the IEP must be appropriate in light of the child’s circumstances should come as no surprise,” he said. “A focus on the particular child is at the core of the IDEA.”

Roberts declared that children in special education who sit in a regular classroom, an IEP should be reasonably calculated “to enable the child to achieve passing marks and advance from grade to grade.” For a child for whom a regular classroom is not “a reasonable prospect,” the chief justice said, the educational program must be “appropriately ambitious in light of his circumstances.”

This is the exact standard special-education advocates have maintained in which New Orleans charter schools fail, and other option should be on the table. Some call for a return of the highly focused public programs of the past, others for private educational options. The problem is that tuition for special ed private schools far exceeds the per student spending model of the New Orleans charter-based system, even with recent modifications to provide extra funding for special needs students.

Roberts did temper his judgment with the words, “Of course this describes a general standard, not a formula…But whatever else can be said about it, this standard is markedly more demanding than the ‘merely more than de minimis’ test applied by the 10th Circuit.”

This article originally published in the March 27, 2017 print edition of The Louisiana Weekly newspaper.

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