1 00:00:00,120 --> 00:00:03,360 Speaker 1: Federal law requires American public schools to provide what is 2 00:00:03,400 --> 00:00:09,000 Speaker 1: called a free appropriate public education to students with disabilities. Today, 3 00:00:09,320 --> 00:00:12,320 Speaker 1: in a case with enormous implications for public schools, the 4 00:00:12,360 --> 00:00:15,160 Speaker 1: Supreme Court heard a case about what that phrase means. 5 00:00:15,760 --> 00:00:18,720 Speaker 1: Advocates for students with disabilities argue that schools should be 6 00:00:18,720 --> 00:00:21,640 Speaker 1: required to provide an education equivalent to what they provide 7 00:00:21,680 --> 00:00:24,880 Speaker 1: to students without disabilities, but school districts argued that they 8 00:00:24,880 --> 00:00:26,880 Speaker 1: should only be required to make sure that there is 9 00:00:26,920 --> 00:00:30,600 Speaker 1: some educational benefit in their programs for students with disabilities. 10 00:00:31,040 --> 00:00:33,680 Speaker 1: With US Today to talk about the cases. Robert Garda, 11 00:00:33,920 --> 00:00:36,599 Speaker 1: a law professor at Loyola University New Orleans who's an 12 00:00:36,600 --> 00:00:39,680 Speaker 1: expert on American education law. Rob, welcome to the program. 13 00:00:39,760 --> 00:00:42,080 Speaker 1: We're very glad to have you here. Why don't you 14 00:00:42,320 --> 00:00:46,159 Speaker 1: um frame the facts and issue in the case for us, 15 00:00:47,360 --> 00:00:50,880 Speaker 1: no problem. Andrew F was an autistic student that attended 16 00:00:51,280 --> 00:00:55,080 Speaker 1: public school in Colorado from p pre K through fourth grade. 17 00:00:56,320 --> 00:00:59,840 Speaker 1: Beginning in about first or second grade, has autistic behaviors 18 00:00:59,840 --> 00:01:04,480 Speaker 1: be again to interfere with his academic learning abilities, and 19 00:01:04,640 --> 00:01:08,240 Speaker 1: over the next two years, the academic goals that were 20 00:01:08,240 --> 00:01:12,280 Speaker 1: set for Andrew remained roughly the same in what's known 21 00:01:12,280 --> 00:01:17,319 Speaker 1: as his individualized education plan. The parents were unhappy that 22 00:01:17,640 --> 00:01:21,320 Speaker 1: their son had not made significant progress under the individualized 23 00:01:21,440 --> 00:01:24,880 Speaker 1: education plans, so withdrew him from public school and sent 24 00:01:25,080 --> 00:01:29,440 Speaker 1: him to private school. They then sought tuition reimbursement from 25 00:01:29,440 --> 00:01:32,640 Speaker 1: the school district, alleging that the district had violated the 26 00:01:32,680 --> 00:01:36,920 Speaker 1: Individuals with Disabilities and Education Act because it has failed 27 00:01:36,959 --> 00:01:40,800 Speaker 1: to provide him with a free, appropriate public education. As 28 00:01:40,840 --> 00:01:45,400 Speaker 1: you noted in your introduction, Um, the parents and the 29 00:01:45,440 --> 00:01:49,120 Speaker 1: student lost at every single level. That being, a hearing 30 00:01:49,160 --> 00:01:52,000 Speaker 1: officer ruled against them, saying that the school had provided 31 00:01:52,080 --> 00:01:56,560 Speaker 1: some educational benefit. A district court affirmed that, and then 32 00:01:56,600 --> 00:01:59,920 Speaker 1: the Tenth Circuit also affirmed it, holding that it was 33 00:02:00,000 --> 00:02:02,960 Speaker 1: a very close case that the school had indeed provided 34 00:02:03,080 --> 00:02:07,480 Speaker 1: some educational benefit, but hinting that if the standard were different, 35 00:02:07,480 --> 00:02:11,880 Speaker 1: it might reach a different conclusion. Rob experianded by the 36 00:02:11,919 --> 00:02:16,399 Speaker 1: Supreme Court and it's deciding that precise issue. Rob explained 37 00:02:16,440 --> 00:02:19,840 Speaker 1: that phrase you used a couple of times, some educational benefit. 38 00:02:20,200 --> 00:02:24,680 Speaker 1: How have lower courts across the country interpreted that? What? 39 00:02:24,680 --> 00:02:28,760 Speaker 1: What have they said that actually entails? Well? The real 40 00:02:28,880 --> 00:02:32,280 Speaker 1: key provision in the Individuals of Disabilities and Education Act 41 00:02:32,440 --> 00:02:35,720 Speaker 1: is that states must provide students with disabilities a free 42 00:02:35,760 --> 00:02:41,000 Speaker 1: appropriate public education. In the Supreme Court, in a famous 43 00:02:41,000 --> 00:02:46,520 Speaker 1: decision called the Rally Decision, determined that the free appropriate 44 00:02:46,560 --> 00:02:51,800 Speaker 1: public education required states to provide some educational benefit, but 45 00:02:51,880 --> 00:02:54,880 Speaker 1: in that same decision it also said that states must 46 00:02:54,880 --> 00:02:59,320 Speaker 1: provide meaningful access to students. What's resulted in the thirty 47 00:02:59,400 --> 00:03:03,160 Speaker 1: years since that decision is a split among circuit courts, 48 00:03:03,720 --> 00:03:07,200 Speaker 1: with some finding, including the Tenth Circuit the subject of 49 00:03:07,200 --> 00:03:11,920 Speaker 1: this lawsuit, that anything that's non trivial or anything any 50 00:03:12,040 --> 00:03:18,359 Speaker 1: dominimus benefit satisfies that free appropriate public education standard. Other circuits, though, 51 00:03:18,400 --> 00:03:22,800 Speaker 1: have required that there be substantial or meaningful educational benefit 52 00:03:22,919 --> 00:03:26,880 Speaker 1: or significant educational progress. So the Supreme Court in this 53 00:03:26,960 --> 00:03:30,040 Speaker 1: case is going to decide which of those standards, or 54 00:03:30,040 --> 00:03:34,280 Speaker 1: an entirely different one, fulfills the obligations under the Act. 55 00:03:34,960 --> 00:03:38,360 Speaker 1: Greg you were in the courtroom today during the oral argument. 56 00:03:38,880 --> 00:03:42,120 Speaker 1: Tell us about what happened. Well, what what happened was 57 00:03:42,480 --> 00:03:44,840 Speaker 1: at the beginning, Michael, you use the word equivalent, and 58 00:03:44,880 --> 00:03:48,240 Speaker 1: that is indeed something that Andrews lawyers were arguing that 59 00:03:48,280 --> 00:03:53,440 Speaker 1: they are entitled to UH an equal educational benefit. The 60 00:03:53,440 --> 00:03:55,920 Speaker 1: discussion moved pretty quickly away from that because the Justice 61 00:03:55,920 --> 00:03:58,000 Speaker 1: didn't seem to think that was the right way to 62 00:03:58,000 --> 00:04:01,600 Speaker 1: announce to analyze it here, and essentially they were they 63 00:04:01,600 --> 00:04:04,720 Speaker 1: were very skeptical of what rob was was talking about 64 00:04:04,760 --> 00:04:07,800 Speaker 1: with the the you know, somewhat more than diminimus standard. 65 00:04:07,880 --> 00:04:11,240 Speaker 1: That standard they seem to think UH didn't have the 66 00:04:11,360 --> 00:04:15,920 Speaker 1: kind of bite that Congress intended. The struggle for them 67 00:04:15,960 --> 00:04:19,080 Speaker 1: was how to articulate what it was that Congress did intend. 68 00:04:19,120 --> 00:04:21,159 Speaker 1: And so there was an awful lot of discussion about 69 00:04:21,160 --> 00:04:25,839 Speaker 1: semantics and whether there's a difference between meaningful and significant, 70 00:04:26,200 --> 00:04:30,160 Speaker 1: and UH concern that there might, you know, if they 71 00:04:30,200 --> 00:04:32,360 Speaker 1: weren't clear enough, that they might be opening the school 72 00:04:32,360 --> 00:04:35,599 Speaker 1: districts to an awful lot of litigation. Well that that 73 00:04:35,920 --> 00:04:37,800 Speaker 1: obviously is going to be one of the arguments that 74 00:04:38,040 --> 00:04:41,560 Speaker 1: UM weighs against the pliniffs in this case. Rob is 75 00:04:41,760 --> 00:04:45,560 Speaker 1: you know what what happens when the UM If the 76 00:04:45,600 --> 00:04:48,839 Speaker 1: Court sets a higher standard, then how is it that 77 00:04:48,920 --> 00:04:52,480 Speaker 1: it gets enforced? So tell us what what would happen if, 78 00:04:52,520 --> 00:04:56,279 Speaker 1: say this, the Court said there's a substantial progress requirement 79 00:04:56,520 --> 00:05:01,240 Speaker 1: for students, how would families enforce that against school. Well, 80 00:05:01,279 --> 00:05:04,159 Speaker 1: there's two mechanisms of enforcement under the Act. The first 81 00:05:04,279 --> 00:05:07,800 Speaker 1: is what you note parents bringing due process complaints or 82 00:05:07,880 --> 00:05:11,080 Speaker 1: lawsuits against school saying that you need to now comply 83 00:05:11,200 --> 00:05:14,440 Speaker 1: with the new standard, which is a substantial educational benefit 84 00:05:14,520 --> 00:05:19,080 Speaker 1: or significant educational progress. The other enforcement mechanism is the 85 00:05:19,120 --> 00:05:22,440 Speaker 1: Department of Education. This is a funding statute. In other words, 86 00:05:22,520 --> 00:05:25,960 Speaker 1: the federal government has given money to the states in 87 00:05:26,080 --> 00:05:28,919 Speaker 1: exchange for the states to promise to abide by the Act. 88 00:05:29,560 --> 00:05:33,240 Speaker 1: If under the new standard, the Department of Education finds 89 00:05:33,240 --> 00:05:35,680 Speaker 1: the states are not in compliance, that could threaten them 90 00:05:35,760 --> 00:05:39,720 Speaker 1: with their funding. Rob One thing that that was discussing 91 00:05:39,839 --> 00:05:42,440 Speaker 1: court that that I had a little trouble wrapping my 92 00:05:42,480 --> 00:05:44,840 Speaker 1: head around, was that that the lawyer for the school 93 00:05:44,880 --> 00:05:48,479 Speaker 1: district was making the argument that that it's just the 94 00:05:48,600 --> 00:05:51,800 Speaker 1: I d e. A is just a procedural set of 95 00:05:51,839 --> 00:05:55,400 Speaker 1: procedural rights, and that they even this, uh, you know, 96 00:05:55,560 --> 00:05:58,760 Speaker 1: something more than diminimus standard that some lower courts have used, 97 00:05:58,920 --> 00:06:02,239 Speaker 1: that that wasn't actually a substantive standard. Do you agree 98 00:06:02,240 --> 00:06:05,880 Speaker 1: with that analysis, and if not, is it just a 99 00:06:05,960 --> 00:06:10,640 Speaker 1: question of picking the substantive standard that's right? I disagree 100 00:06:10,680 --> 00:06:14,080 Speaker 1: with that analysis. There is a good argument that I 101 00:06:14,200 --> 00:06:18,200 Speaker 1: d e. A just requires a certain level of process 102 00:06:18,200 --> 00:06:20,680 Speaker 1: for parents. In other words, they must be included in 103 00:06:20,720 --> 00:06:24,720 Speaker 1: the individualized education plan. There must be a full assessment 104 00:06:24,760 --> 00:06:28,480 Speaker 1: of the child. There are numerous procedures identified in the Act, 105 00:06:29,400 --> 00:06:32,920 Speaker 1: but the Supreme Court in Rally and other courts since 106 00:06:33,000 --> 00:06:37,600 Speaker 1: have sort of said there definitely is a substantive requirement, 107 00:06:37,640 --> 00:06:41,479 Speaker 1: though it does require that there be educational benefit given 108 00:06:41,520 --> 00:06:44,960 Speaker 1: to the child. So while the Act focuses on procedure 109 00:06:45,080 --> 00:06:48,400 Speaker 1: and it's necessary to comply with those procedures, there is 110 00:06:48,520 --> 00:06:53,479 Speaker 1: also a substantive requirement. What that requirement is, though, is 111 00:06:53,520 --> 00:06:56,280 Speaker 1: really the nub of the discussion here. Well, very quickly, 112 00:06:56,320 --> 00:06:59,160 Speaker 1: in about thirty seconds, does does it require in your view, 113 00:06:59,200 --> 00:07:01,880 Speaker 1: does it require the student make progress or that it 114 00:07:02,000 --> 00:07:05,839 Speaker 1: just be that the program is a decent program. I 115 00:07:05,880 --> 00:07:08,440 Speaker 1: think it requires the student to make progress. As the 116 00:07:08,520 --> 00:07:14,720 Speaker 1: government argued, the substantial educational benefit, significant educational progress sort 117 00:07:14,720 --> 00:07:18,760 Speaker 1: of best comports with the changes that the Act has 118 00:07:18,800 --> 00:07:23,000 Speaker 1: been through since its passage in nineteen At that time, 119 00:07:23,040 --> 00:07:26,760 Speaker 1: the key was just getting students sort of into general education. 120 00:07:27,640 --> 00:07:30,240 Speaker 1: Since that time, though, we've really been able to improve 121 00:07:30,280 --> 00:07:33,400 Speaker 1: the education of students with disabilities such that we should 122 00:07:33,400 --> 00:07:37,880 Speaker 1: not have low standards or the minimus requirements for them. 123 00:07:38,000 --> 00:07:40,960 Speaker 1: We're able to educate them much more effectively now, and 124 00:07:41,000 --> 00:07:45,240 Speaker 1: the Act seems like it should recognize that advocates for 125 00:07:45,280 --> 00:07:48,920 Speaker 1: students for disabilities and the people who administer American school 126 00:07:48,960 --> 00:07:52,520 Speaker 1: districts disagree about the level of educational benefits that federal 127 00:07:52,600 --> 00:07:57,160 Speaker 1: law requires schools provide to students with disabilities. And today 128 00:07:57,200 --> 00:07:59,920 Speaker 1: the Supreme Court heard argument on a case that has 129 00:08:00,000 --> 00:08:02,640 Speaker 1: split the courts throughout the country over the last couple 130 00:08:02,640 --> 00:08:05,480 Speaker 1: of decades um about just what is the level of 131 00:08:05,560 --> 00:08:09,520 Speaker 1: educational benefit that American schools have to provide to those students. 132 00:08:09,800 --> 00:08:11,600 Speaker 1: Talking to us about the case is an expert on 133 00:08:11,720 --> 00:08:15,440 Speaker 1: education law, Pete Wright, who I excuse me, Robert Garda, 134 00:08:15,480 --> 00:08:19,080 Speaker 1: who is a professor at Loyal University, New Orleans College 135 00:08:19,120 --> 00:08:23,360 Speaker 1: of Law. Rob you were talking earlier about the way 136 00:08:23,400 --> 00:08:28,360 Speaker 1: that the the way that the federal law allows students 137 00:08:28,360 --> 00:08:32,000 Speaker 1: and families to enforce the requirements of the Individuals with 138 00:08:32,080 --> 00:08:35,000 Speaker 1: disabilities and Education Act against school districts to make sure 139 00:08:35,040 --> 00:08:38,439 Speaker 1: that students with disabilities get what they are legally entitled to. 140 00:08:38,559 --> 00:08:40,080 Speaker 1: And one of the things you talked about was the 141 00:08:40,120 --> 00:08:44,800 Speaker 1: possibility of litigation over you know what program the school 142 00:08:44,800 --> 00:08:49,119 Speaker 1: districts are giving to the students. If the court adopts 143 00:08:49,200 --> 00:08:52,160 Speaker 1: a higher standard in this case than what the school 144 00:08:52,200 --> 00:08:56,840 Speaker 1: district is arguing for higher substance standard, is there going 145 00:08:56,880 --> 00:09:00,720 Speaker 1: to be an explosion of litigation against school districts by 146 00:09:00,920 --> 00:09:06,360 Speaker 1: parents of students with disabilities. That's uncertain right now. Not 147 00:09:06,520 --> 00:09:10,720 Speaker 1: that many parents actually sue already, and so the first 148 00:09:10,760 --> 00:09:13,599 Speaker 1: step that must be taken as mediation. If you disagree 149 00:09:13,600 --> 00:09:16,240 Speaker 1: with the program that's being given to your student, you 150 00:09:16,280 --> 00:09:20,760 Speaker 1: initiate mediation. A vast majority of the dispute resolve at 151 00:09:20,760 --> 00:09:23,200 Speaker 1: that stage, and very few go to a due process 152 00:09:23,280 --> 00:09:27,640 Speaker 1: hearing or a court proceeding. I think changing the standard 153 00:09:28,000 --> 00:09:31,120 Speaker 1: would certainly require schools to step up and do more 154 00:09:31,160 --> 00:09:35,440 Speaker 1: for students with disabilities. I'm not sure would increase litigation though, 155 00:09:35,480 --> 00:09:39,240 Speaker 1: because of parents willing to litigate, would have litigated under 156 00:09:39,280 --> 00:09:43,800 Speaker 1: the sum educational benefit standard or under whatever new standard 157 00:09:43,840 --> 00:09:48,720 Speaker 1: the Supreme Court may issue. It's possible, but uncertain. One 158 00:09:48,800 --> 00:09:52,280 Speaker 1: justice did express concern about that today. Stephen Brier said, quote, 159 00:09:52,559 --> 00:09:54,840 Speaker 1: I foresee taking money that ought to go to children 160 00:09:54,880 --> 00:09:58,280 Speaker 1: and spending it on lawsuits and lawyers. Rob I wanted 161 00:09:58,280 --> 00:10:01,680 Speaker 1: to ask you about one other aspect of this UH. 162 00:10:01,880 --> 00:10:05,680 Speaker 1: Justice Kennedy asked Jeff Fisher, the lawyer for the for 163 00:10:05,760 --> 00:10:10,480 Speaker 1: the family, UH, can school districts consider cost in figuring 164 00:10:10,480 --> 00:10:13,640 Speaker 1: out what is the appropriate plan for a given student 165 00:10:13,920 --> 00:10:18,360 Speaker 1: and just Jeff Fisher's answer was basically no, because Congress 166 00:10:18,360 --> 00:10:21,920 Speaker 1: has made the judgment that it's cheaper to provide services 167 00:10:22,000 --> 00:10:25,080 Speaker 1: for a students than have to pay money to to 168 00:10:25,080 --> 00:10:27,960 Speaker 1: to support them the rest of their lives. Is he 169 00:10:28,120 --> 00:10:31,160 Speaker 1: right about that? Yes, he is right about that. The 170 00:10:31,200 --> 00:10:34,560 Speaker 1: Court has been very consistent saying that UM school districts 171 00:10:34,559 --> 00:10:38,040 Speaker 1: cannot consider cost in terms of providing a free appropriate 172 00:10:38,080 --> 00:10:41,480 Speaker 1: public education. In other words, they must do it now. 173 00:10:41,520 --> 00:10:43,880 Speaker 1: How they choose to do it is entirely up to 174 00:10:43,920 --> 00:10:46,360 Speaker 1: the school district. And of course school districts will take 175 00:10:46,360 --> 00:10:50,960 Speaker 1: into account cost in deciding what programming to provide students. 176 00:10:51,559 --> 00:10:54,199 Speaker 1: But it is correct that cost is not an excuse 177 00:10:54,559 --> 00:10:58,120 Speaker 1: to not provide a free, appropriate public education to a student. 178 00:10:58,720 --> 00:11:01,040 Speaker 1: In terms of the statement you said earlier from the judges, 179 00:11:01,120 --> 00:11:03,640 Speaker 1: those don't surprise me at all. I do think that 180 00:11:03,720 --> 00:11:06,839 Speaker 1: a new standard would increase costs for school districts. I'm 181 00:11:06,880 --> 00:11:10,040 Speaker 1: not sure it would increase litigation budgets, but I think 182 00:11:10,080 --> 00:11:14,120 Speaker 1: it would increase special education budgets because a higher standard 183 00:11:14,240 --> 00:11:20,000 Speaker 1: should equate to more services for students. Rob in about 184 00:11:20,040 --> 00:11:24,640 Speaker 1: thirty seconds. The the the people who are you know, 185 00:11:24,640 --> 00:11:27,480 Speaker 1: the people representing the school district are arguing that there's 186 00:11:27,480 --> 00:11:29,880 Speaker 1: a problem under the Constitution with the court having a 187 00:11:29,960 --> 00:11:34,240 Speaker 1: higher burdened on schools here because schools are accepting federal 188 00:11:34,280 --> 00:11:36,280 Speaker 1: money and it's it's got they've gotta have a clear 189 00:11:36,400 --> 00:11:38,280 Speaker 1: rule for what they required to do, and it has 190 00:11:38,320 --> 00:11:40,400 Speaker 1: not been clear before that they have to meet a 191 00:11:40,480 --> 00:11:43,600 Speaker 1: higher standard. This is spending what's called the spending clause 192 00:11:43,679 --> 00:11:47,760 Speaker 1: argument under the Constitution. Is there anything to that argument? Yes, 193 00:11:47,800 --> 00:11:50,160 Speaker 1: In fact, I think that's one of their stronger arguments. 194 00:11:50,240 --> 00:11:53,040 Speaker 1: It's pretty much the theme of their entire brief because 195 00:11:53,080 --> 00:11:56,680 Speaker 1: of the suspending legislation. It's in the nature of a contract, 196 00:11:57,240 --> 00:12:01,000 Speaker 1: and the defendants argument is if you change the standard now, 197 00:12:01,160 --> 00:12:04,840 Speaker 1: you're essentially changing the rules of the game. When states 198 00:12:04,880 --> 00:12:07,480 Speaker 1: agreed to accept this money from the federal government and 199 00:12:07,960 --> 00:12:12,840 Speaker 1: undertake these significant obligations, the standard was the rally standard 200 00:12:12,920 --> 00:12:17,520 Speaker 1: to some educational benefits standard allegedly, and by increasing that 201 00:12:17,640 --> 00:12:23,400 Speaker 1: standard now the contract has been changed essentially, and that 202 00:12:23,440 --> 00:12:27,000 Speaker 1: cannot be done unless there is clear notice in the statute. 203 00:12:27,160 --> 00:12:30,400 Speaker 1: And the defendants argue there's no such clear notice. That 204 00:12:30,559 --> 00:12:33,679 Speaker 1: is sort of their underlying theme of their brief. And 205 00:12:33,720 --> 00:12:36,079 Speaker 1: I didn't hear oral argument today, but it would surprise 206 00:12:36,160 --> 00:12:38,680 Speaker 1: me if they change that theme at oral argument. Well, 207 00:12:38,679 --> 00:12:43,200 Speaker 1: our thanks to Rob Garda of New Loyola University, New 208 00:12:43,320 --> 00:12:44,400 Speaker 1: Orleans College of Law.