Speaker 1: Federal law requires American public schools to provide what is
Speaker 1: called a free appropriate public education to students with disabilities. Today,
Speaker 1: in a case with enormous implications for public schools, the
Speaker 1: Supreme Court heard a case about what that phrase means.
Speaker 1: Advocates for students with disabilities argue that schools should be
Speaker 1: required to provide an education equivalent to what they provide
Speaker 1: to students without disabilities, but school districts argued that they
Speaker 1: should only be required to make sure that there is
Speaker 1: some educational benefit in their programs for students with disabilities.
Speaker 1: With US Today to talk about the cases. Robert Garda,
Speaker 1: a law professor at Loyola University New Orleans who's an
Speaker 1: expert on American education law. Rob, welcome to the program.
Speaker 1: We're very glad to have you here. Why don't you
Speaker 1: um frame the facts and issue in the case for us,
Speaker 1: no problem. Andrew F was an autistic student that attended
Speaker 1: public school in Colorado from p pre K through fourth grade.
Speaker 1: Beginning in about first or second grade, has autistic behaviors
Speaker 1: be again to interfere with his academic learning abilities, and
Speaker 1: over the next two years, the academic goals that were
Speaker 1: set for Andrew remained roughly the same in what's known
Speaker 1: as his individualized education plan. The parents were unhappy that
Speaker 1: their son had not made significant progress under the individualized
Speaker 1: education plans, so withdrew him from public school and sent
Speaker 1: him to private school. They then sought tuition reimbursement from
Speaker 1: the school district, alleging that the district had violated the
Speaker 1: Individuals with Disabilities and Education Act because it has failed
Speaker 1: to provide him with a free, appropriate public education. As
Speaker 1: you noted in your introduction, Um, the parents and the
Speaker 1: student lost at every single level. That being, a hearing
Speaker 1: officer ruled against them, saying that the school had provided
Speaker 1: some educational benefit. A district court affirmed that, and then
Speaker 1: the Tenth Circuit also affirmed it, holding that it was
Speaker 1: a very close case that the school had indeed provided
Speaker 1: some educational benefit, but hinting that if the standard were different,
Speaker 1: it might reach a different conclusion. Rob experianded by the
Speaker 1: Supreme Court and it's deciding that precise issue. Rob explained
Speaker 1: that phrase you used a couple of times, some educational benefit.
Speaker 1: How have lower courts across the country interpreted that? What?
Speaker 1: What have they said that actually entails? Well? The real
Speaker 1: key provision in the Individuals of Disabilities and Education Act
Speaker 1: is that states must provide students with disabilities a free
Speaker 1: appropriate public education. In the Supreme Court, in a famous
Speaker 1: decision called the Rally Decision, determined that the free appropriate
Speaker 1: public education required states to provide some educational benefit, but
Speaker 1: in that same decision it also said that states must
Speaker 1: provide meaningful access to students. What's resulted in the thirty
Speaker 1: years since that decision is a split among circuit courts,
Speaker 1: with some finding, including the Tenth Circuit the subject of
Speaker 1: this lawsuit, that anything that's non trivial or anything any
Speaker 1: dominimus benefit satisfies that free appropriate public education standard. Other circuits, though,
Speaker 1: have required that there be substantial or meaningful educational benefit
Speaker 1: or significant educational progress. So the Supreme Court in this
Speaker 1: case is going to decide which of those standards, or
Speaker 1: an entirely different one, fulfills the obligations under the Act.
Speaker 1: Greg you were in the courtroom today during the oral argument.
Speaker 1: Tell us about what happened. Well, what what happened was
Speaker 1: at the beginning, Michael, you use the word equivalent, and
Speaker 1: that is indeed something that Andrews lawyers were arguing that
Speaker 1: they are entitled to UH an equal educational benefit. The
Speaker 1: discussion moved pretty quickly away from that because the Justice
Speaker 1: didn't seem to think that was the right way to
Speaker 1: announce to analyze it here, and essentially they were they
Speaker 1: were very skeptical of what rob was was talking about
Speaker 1: with the the you know, somewhat more than diminimus standard.
Speaker 1: That standard they seem to think UH didn't have the
Speaker 1: kind of bite that Congress intended. The struggle for them
Speaker 1: was how to articulate what it was that Congress did intend.
Speaker 1: And so there was an awful lot of discussion about
Speaker 1: semantics and whether there's a difference between meaningful and significant,
Speaker 1: and UH concern that there might, you know, if they
Speaker 1: weren't clear enough, that they might be opening the school
Speaker 1: districts to an awful lot of litigation. Well that that
Speaker 1: obviously is going to be one of the arguments that
Speaker 1: UM weighs against the pliniffs in this case. Rob is
Speaker 1: you know what what happens when the UM If the
Speaker 1: Court sets a higher standard, then how is it that
Speaker 1: it gets enforced? So tell us what what would happen if,
Speaker 1: say this, the Court said there's a substantial progress requirement
Speaker 1: for students, how would families enforce that against school. Well,
Speaker 1: there's two mechanisms of enforcement under the Act. The first
Speaker 1: is what you note parents bringing due process complaints or
Speaker 1: lawsuits against school saying that you need to now comply
Speaker 1: with the new standard, which is a substantial educational benefit
Speaker 1: or significant educational progress. The other enforcement mechanism is the
Speaker 1: Department of Education. This is a funding statute. In other words,
Speaker 1: the federal government has given money to the states in
Speaker 1: exchange for the states to promise to abide by the Act.
Speaker 1: If under the new standard, the Department of Education finds
Speaker 1: the states are not in compliance, that could threaten them
Speaker 1: with their funding. Rob One thing that that was discussing
Speaker 1: court that that I had a little trouble wrapping my
Speaker 1: head around, was that that the lawyer for the school
Speaker 1: district was making the argument that that it's just the
Speaker 1: I d e. A is just a procedural set of
Speaker 1: procedural rights, and that they even this, uh, you know,
Speaker 1: something more than diminimus standard that some lower courts have used,
Speaker 1: that that wasn't actually a substantive standard. Do you agree
Speaker 1: with that analysis, and if not, is it just a
Speaker 1: question of picking the substantive standard that's right? I disagree
Speaker 1: with that analysis. There is a good argument that I
Speaker 1: d e. A just requires a certain level of process
Speaker 1: for parents. In other words, they must be included in
Speaker 1: the individualized education plan. There must be a full assessment
Speaker 1: of the child. There are numerous procedures identified in the Act,
Speaker 1: but the Supreme Court in Rally and other courts since
Speaker 1: have sort of said there definitely is a substantive requirement,
Speaker 1: though it does require that there be educational benefit given
Speaker 1: to the child. So while the Act focuses on procedure
Speaker 1: and it's necessary to comply with those procedures, there is
Speaker 1: also a substantive requirement. What that requirement is, though, is
Speaker 1: really the nub of the discussion here. Well, very quickly,
Speaker 1: in about thirty seconds, does does it require in your view,
Speaker 1: does it require the student make progress or that it
Speaker 1: just be that the program is a decent program. I
Speaker 1: think it requires the student to make progress. As the
Speaker 1: government argued, the substantial educational benefit, significant educational progress sort
Speaker 1: of best comports with the changes that the Act has
Speaker 1: been through since its passage in nineteen At that time,
Speaker 1: the key was just getting students sort of into general education.
Speaker 1: Since that time, though, we've really been able to improve
Speaker 1: the education of students with disabilities such that we should
Speaker 1: not have low standards or the minimus requirements for them.
Speaker 1: We're able to educate them much more effectively now, and
Speaker 1: the Act seems like it should recognize that advocates for
Speaker 1: students for disabilities and the people who administer American school
Speaker 1: districts disagree about the level of educational benefits that federal
Speaker 1: law requires schools provide to students with disabilities. And today
Speaker 1: the Supreme Court heard argument on a case that has
Speaker 1: split the courts throughout the country over the last couple
Speaker 1: of decades um about just what is the level of
Speaker 1: educational benefit that American schools have to provide to those students.
Speaker 1: Talking to us about the case is an expert on
Speaker 1: education law, Pete Wright, who I excuse me, Robert Garda,
Speaker 1: who is a professor at Loyal University, New Orleans College
Speaker 1: of Law. Rob you were talking earlier about the way
Speaker 1: that the the way that the federal law allows students
Speaker 1: and families to enforce the requirements of the Individuals with
Speaker 1: disabilities and Education Act against school districts to make sure
Speaker 1: that students with disabilities get what they are legally entitled to.
Speaker 1: And one of the things you talked about was the
Speaker 1: possibility of litigation over you know what program the school
Speaker 1: districts are giving to the students. If the court adopts
Speaker 1: a higher standard in this case than what the school
Speaker 1: district is arguing for higher substance standard, is there going
Speaker 1: to be an explosion of litigation against school districts by
Speaker 1: parents of students with disabilities. That's uncertain right now. Not
Speaker 1: that many parents actually sue already, and so the first
Speaker 1: step that must be taken as mediation. If you disagree
Speaker 1: with the program that's being given to your student, you
Speaker 1: initiate mediation. A vast majority of the dispute resolve at
Speaker 1: that stage, and very few go to a due process
Speaker 1: hearing or a court proceeding. I think changing the standard
Speaker 1: would certainly require schools to step up and do more
Speaker 1: for students with disabilities. I'm not sure would increase litigation though,
Speaker 1: because of parents willing to litigate, would have litigated under
Speaker 1: the sum educational benefit standard or under whatever new standard
Speaker 1: the Supreme Court may issue. It's possible, but uncertain. One
Speaker 1: justice did express concern about that today. Stephen Brier said, quote,
Speaker 1: I foresee taking money that ought to go to children
Speaker 1: and spending it on lawsuits and lawyers. Rob I wanted
Speaker 1: to ask you about one other aspect of this UH.
Speaker 1: Justice Kennedy asked Jeff Fisher, the lawyer for the for
Speaker 1: the family, UH, can school districts consider cost in figuring
Speaker 1: out what is the appropriate plan for a given student
Speaker 1: and just Jeff Fisher's answer was basically no, because Congress
Speaker 1: has made the judgment that it's cheaper to provide services
Speaker 1: for a students than have to pay money to to
Speaker 1: to support them the rest of their lives. Is he
Speaker 1: right about that? Yes, he is right about that. The
Speaker 1: Court has been very consistent saying that UM school districts
Speaker 1: cannot consider cost in terms of providing a free appropriate
Speaker 1: public education. In other words, they must do it now.
Speaker 1: How they choose to do it is entirely up to
Speaker 1: the school district. And of course school districts will take
Speaker 1: into account cost in deciding what programming to provide students.
Speaker 1: But it is correct that cost is not an excuse
Speaker 1: to not provide a free, appropriate public education to a student.
Speaker 1: In terms of the statement you said earlier from the judges,
Speaker 1: those don't surprise me at all. I do think that
Speaker 1: a new standard would increase costs for school districts. I'm
Speaker 1: not sure it would increase litigation budgets, but I think
Speaker 1: it would increase special education budgets because a higher standard
Speaker 1: should equate to more services for students. Rob in about
Speaker 1: thirty seconds. The the the people who are you know,
Speaker 1: the people representing the school district are arguing that there's
Speaker 1: a problem under the Constitution with the court having a
Speaker 1: higher burdened on schools here because schools are accepting federal
Speaker 1: money and it's it's got they've gotta have a clear
Speaker 1: rule for what they required to do, and it has
Speaker 1: not been clear before that they have to meet a
Speaker 1: higher standard. This is spending what's called the spending clause
Speaker 1: argument under the Constitution. Is there anything to that argument? Yes,
Speaker 1: In fact, I think that's one of their stronger arguments.
Speaker 1: It's pretty much the theme of their entire brief because
Speaker 1: of the suspending legislation. It's in the nature of a contract,
Speaker 1: and the defendants argument is if you change the standard now,
Speaker 1: you're essentially changing the rules of the game. When states
Speaker 1: agreed to accept this money from the federal government and
Speaker 1: undertake these significant obligations, the standard was the rally standard
Speaker 1: to some educational benefits standard allegedly, and by increasing that
Speaker 1: standard now the contract has been changed essentially, and that
Speaker 1: cannot be done unless there is clear notice in the statute.
Speaker 1: And the defendants argue there's no such clear notice. That
Speaker 1: is sort of their underlying theme of their brief. And
Speaker 1: I didn't hear oral argument today, but it would surprise
Speaker 1: me if they change that theme at oral argument. Well,
Speaker 1: our thanks to Rob Garda of New Loyola University, New
Speaker 1: Orleans College of Law.