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Andrew F. v. Douglas County School District

Endrew F. v. Douglas County School District

By Murray B. Schneps

March 29, 2017

On March 22, 2017, the Supreme Court of the United States issued an updated opinion interpreting of an earlier Supreme Court opinion in Board of Education v. Rowley, decided on June 28, 1982.

The Endrew F case interpreted both the Rowley case and the Individuals with Disabilities Education Act (IDEA), enacted on October 30, 1990. Lower courts previously held, based upon the Rowley case, that the IDEA in requiring an Individual Education Plan (IEP) that “the instruction and services furnished to children with disabilities must be calculated as long as it is calculated to confer ‘some educational benefit.’ It has also been interpreted that the phrase ‘some educational benefit’ 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 .’ ”

In Rowley, the parties had different understandings of the free appropriate public education (FAPE) requirement. The parents argued “that the school district was required to provide instruction and services that would provide Amy an ‘equal educational opportunity’ relative to children without disabilities.” The school of district seemed to have learned very little contending that “the IDEA ‘did not create substantive individual rights’ ” and that the FAPE provision “was instead merely aspirational.” (emphasis added)

When I said that how little the school district has learned, I am referring to a conference I appeared to participate in a forum of two people (Sam Koala a high level administrator in the NYS Department of Mental Hygiene and me) discussing the recently executed and ordered the Willowbrook Consent Judgment. Mr. Koala, in 1975, stated and referred to the Willowbrook Consent Judgment with its Appendix “A” as “being an aspirational document.” Following my response, he never again appeared to speak publicly about the Willowbrook Consent Judgment. His characterization was both incorrect and offensive. This document is a consent judgment negotiated, approved of and signed to by the State and its officials and had it ordered by a Federal judge. In spite of those facts, the State was anticipating going back to “business as usual.” We had other ideas.

Endrew F.’s parents argued that a FAPE IS “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantial equal to the opportunities afforded children without disabilities.”

In the Andrew F. case, Chief Justice Roberts wrote the opinion for a unanimous Court, agreed with Endrew’s parents and the language written by the eminent Justice Blackmun in his concurring opinion in the Rowley case stating that “[T]he question is whether Amy’s program . . . offered her an opportunity to understand and participate in the classroom that was substantially equal to that given her non-handicapped classmates.”

The unanimous opinion relied upon the words contained in the Individuals with Disability Education Act (IDEA) enacted by Congress and emphasized important language including: States must provide a free appropriate public education to all eligible children; includes both “special education” that is “specially designed instruction . . . to meet the unique needs of a child with a disability;” and, in addition, “the IDEA must provide a disabled child with such special education and related services “in conformity with the [child’s] individualized education program,” or IEP.

There are several things that make all of this so interesting and perplexing. Where is the Supreme Court really going? What is really going on?

  1. The Rowley case was decided in June 1982 (35 years ago) but it took so long to straighten it out. And this Court, clearly leaning with extreme conservatives like Justices Alito, Thomas and Chief Justice Roberts voted unanimously along with the liberal judges;

2. The language utilized a tone, attitude, demeanor and written by someone or someone’s who seem to have received excellent tutoring. The Court also gives a short and sensitive introduction to autism;

3. Both the Endrew F. case and Fry v. Napoleon, decided within six weeks of each other, speak only to and provide protection of school-aged children under Federal statute. It provides no similar protection for those who have aged out:

4. Chief Justice Roberts summed it up in stating, “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. 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.’ ” (citing the Rowley case). The Chief Justice continued stating, “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in

light of the child' circumstances.”

It is time for us to contemplate and fully understand and appreciate these cases (Endrew F. and Fry) without diving into final plans and run into the Federal court with a new class action complaint. Do I feel that we are being presented with an opportunity and being seduced by a Supreme Court of the United States that is and keeps becoming more and more conservative? Somewhat yes, but we must not drop our fists and back-off until all developmentally disabled people (children or adults; multiply handicapped or not; profoundly/severely or moderately/mildly disabled) and entitled to receive and do receive all services they require (small community residential homes and education, training, recreation, medical and other required services within the community). It is my preference that we have either a determination from the Supreme Court granting such rights under the Constitution or a Constitutional amendment.

Maybe our hopes and prayers are being fulfilled. Whatever we have, we must handle it with sufficient preparation.

Parenthetically, Judge Neil Gorsuch who sits on the 10th Circuit Court of Appeals and is President Trump’s designee to become a member of the Supreme Court, continues to support and push for the “merely more than de minimis” standard for students with disabilities under the Individuals with Disabilities Education Act. In Thompson v. Luke P., Judge Gorsuch held that the IDEA only requires “the creation of individualized programs reasonably calculated to enable the student to make some progress toward the goals within that program” and also referred to the standard as “not an onerous one.” That position is even less than being “aspirational.”

My Abridged Appendix “A” of the Willowbrook Consent Judgment is available on my website ( Open your eyes and see what benefits your children are entitled to receive. That information has been available and implemented for several thousand members of the Willowbrook Class and others who resided with them.

While I believe that the Willowbrook Consent Judgment was and is a wonderful document, it did not provide the “best” or “optimal” or ideal.” In his own words Judge Orrin G. Judd set forth in the Judgment, the following:

The steps, standards and procedures contained in Appendix "A" hereto are not optimal or ideal standards, nor are they just custodial standards. They are based on the recognition that retarded persons, regardless of the degree of handi­capping conditions, are capable of physical, intellectual, emotional and social growth, and upon the further recognition that a certain level of affirmative inter­vention and programming is necessary if that capacity for growth and development is to be preserved, and regression prevented.

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My next column will be published next week.

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