WEBVTT - High Court on Education for Students with Disabilities (Audio) 0:00:00.120 --> 0:00:03.360 Federal law requires American public schools to provide what is 0:00:03.400 --> 0:00:09.000 called a free appropriate public education to students with disabilities. Today, 0:00:09.320 --> 0:00:12.320 in a case with enormous implications for public schools, the 0:00:12.360 --> 0:00:15.160 Supreme Court heard a case about what that phrase means. 0:00:15.760 --> 0:00:18.720 Advocates for students with disabilities argue that schools should be 0:00:18.720 --> 0:00:21.640 required to provide an education equivalent to what they provide 0:00:21.680 --> 0:00:24.880 to students without disabilities, but school districts argued that they 0:00:24.880 --> 0:00:26.880 should only be required to make sure that there is 0:00:26.920 --> 0:00:30.600 some educational benefit in their programs for students with disabilities. 0:00:31.040 --> 0:00:33.680 With US Today to talk about the cases. Robert Garda, 0:00:33.920 --> 0:00:36.599 a law professor at Loyola University New Orleans who's an 0:00:36.600 --> 0:00:39.680 expert on American education law. Rob, welcome to the program. 0:00:39.760 --> 0:00:42.080 We're very glad to have you here. Why don't you 0:00:42.320 --> 0:00:46.159 um frame the facts and issue in the case for us, 0:00:47.360 --> 0:00:50.880 no problem. Andrew F was an autistic student that attended 0:00:51.280 --> 0:00:55.080 public school in Colorado from p pre K through fourth grade. 0:00:56.320 --> 0:00:59.840 Beginning in about first or second grade, has autistic behaviors 0:00:59.840 --> 0:01:04.480 be again to interfere with his academic learning abilities, and 0:01:04.640 --> 0:01:08.240 over the next two years, the academic goals that were 0:01:08.240 --> 0:01:12.280 set for Andrew remained roughly the same in what's known 0:01:12.280 --> 0:01:17.319 as his individualized education plan. The parents were unhappy that 0:01:17.640 --> 0:01:21.320 their son had not made significant progress under the individualized 0:01:21.440 --> 0:01:24.880 education plans, so withdrew him from public school and sent 0:01:25.080 --> 0:01:29.440 him to private school. They then sought tuition reimbursement from 0:01:29.440 --> 0:01:32.640 the school district, alleging that the district had violated the 0:01:32.680 --> 0:01:36.920 Individuals with Disabilities and Education Act because it has failed 0:01:36.959 --> 0:01:40.800 to provide him with a free, appropriate public education. As 0:01:40.840 --> 0:01:45.400 you noted in your introduction, Um, the parents and the 0:01:45.440 --> 0:01:49.120 student lost at every single level. That being, a hearing 0:01:49.160 --> 0:01:52.000 officer ruled against them, saying that the school had provided 0:01:52.080 --> 0:01:56.560 some educational benefit. A district court affirmed that, and then 0:01:56.600 --> 0:01:59.920 the Tenth Circuit also affirmed it, holding that it was 0:02:00.000 --> 0:02:02.960 a very close case that the school had indeed provided 0:02:03.080 --> 0:02:07.480 some educational benefit, but hinting that if the standard were different, 0:02:07.480 --> 0:02:11.880 it might reach a different conclusion. Rob experianded by the 0:02:11.919 --> 0:02:16.399 Supreme Court and it's deciding that precise issue. Rob explained 0:02:16.440 --> 0:02:19.840 that phrase you used a couple of times, some educational benefit. 0:02:20.200 --> 0:02:24.680 How have lower courts across the country interpreted that? What? 0:02:24.680 --> 0:02:28.760 What have they said that actually entails? Well? The real 0:02:28.880 --> 0:02:32.280 key provision in the Individuals of Disabilities and Education Act 0:02:32.440 --> 0:02:35.720 is that states must provide students with disabilities a free 0:02:35.760 --> 0:02:41.000 appropriate public education. In the Supreme Court, in a famous 0:02:41.000 --> 0:02:46.520 decision called the Rally Decision, determined that the free appropriate 0:02:46.560 --> 0:02:51.800 public education required states to provide some educational benefit, but 0:02:51.880 --> 0:02:54.880 in that same decision it also said that states must 0:02:54.880 --> 0:02:59.320 provide meaningful access to students. What's resulted in the thirty 0:02:59.400 --> 0:03:03.160 years since that decision is a split among circuit courts, 0:03:03.720 --> 0:03:07.200 with some finding, including the Tenth Circuit the subject of 0:03:07.200 --> 0:03:11.920 this lawsuit, that anything that's non trivial or anything any 0:03:12.040 --> 0:03:18.359 dominimus benefit satisfies that free appropriate public education standard. Other circuits, though, 0:03:18.400 --> 0:03:22.800 have required that there be substantial or meaningful educational benefit 0:03:22.919 --> 0:03:26.880 or significant educational progress. So the Supreme Court in this 0:03:26.960 --> 0:03:30.040 case is going to decide which of those standards, or 0:03:30.040 --> 0:03:34.280 an entirely different one, fulfills the obligations under the Act. 0:03:34.960 --> 0:03:38.360 Greg you were in the courtroom today during the oral argument. 0:03:38.880 --> 0:03:42.120 Tell us about what happened. Well, what what happened was 0:03:42.480 --> 0:03:44.840 at the beginning, Michael, you use the word equivalent, and 0:03:44.880 --> 0:03:48.240 that is indeed something that Andrews lawyers were arguing that 0:03:48.280 --> 0:03:53.440 they are entitled to UH an equal educational benefit. The 0:03:53.440 --> 0:03:55.920 discussion moved pretty quickly away from that because the Justice 0:03:55.920 --> 0:03:58.000 didn't seem to think that was the right way to 0:03:58.000 --> 0:04:01.600 announce to analyze it here, and essentially they were they 0:04:01.600 --> 0:04:04.720 were very skeptical of what rob was was talking about 0:04:04.760 --> 0:04:07.800 with the the you know, somewhat more than diminimus standard. 0:04:07.880 --> 0:04:11.240 That standard they seem to think UH didn't have the 0:04:11.360 --> 0:04:15.920 kind of bite that Congress intended. The struggle for them 0:04:15.960 --> 0:04:19.080 was how to articulate what it was that Congress did intend. 0:04:19.120 --> 0:04:21.159 And so there was an awful lot of discussion about 0:04:21.160 --> 0:04:25.839 semantics and whether there's a difference between meaningful and significant, 0:04:26.200 --> 0:04:30.160 and UH concern that there might, you know, if they 0:04:30.200 --> 0:04:32.360 weren't clear enough, that they might be opening the school 0:04:32.360 --> 0:04:35.599 districts to an awful lot of litigation. Well that that 0:04:35.920 --> 0:04:37.800 obviously is going to be one of the arguments that 0:04:38.040 --> 0:04:41.560 UM weighs against the pliniffs in this case. Rob is 0:04:41.760 --> 0:04:45.560 you know what what happens when the UM If the 0:04:45.600 --> 0:04:48.839 Court sets a higher standard, then how is it that 0:04:48.920 --> 0:04:52.480 it gets enforced? So tell us what what would happen if, 0:04:52.520 --> 0:04:56.279 say this, the Court said there's a substantial progress requirement 0:04:56.520 --> 0:05:01.240 for students, how would families enforce that against school. Well, 0:05:01.279 --> 0:05:04.159 there's two mechanisms of enforcement under the Act. The first 0:05:04.279 --> 0:05:07.800 is what you note parents bringing due process complaints or 0:05:07.880 --> 0:05:11.080 lawsuits against school saying that you need to now comply 0:05:11.200 --> 0:05:14.440 with the new standard, which is a substantial educational benefit 0:05:14.520 --> 0:05:19.080 or significant educational progress. The other enforcement mechanism is the 0:05:19.120 --> 0:05:22.440 Department of Education. This is a funding statute. In other words, 0:05:22.520 --> 0:05:25.960 the federal government has given money to the states in 0:05:26.080 --> 0:05:28.919 exchange for the states to promise to abide by the Act. 0:05:29.560 --> 0:05:33.240 If under the new standard, the Department of Education finds 0:05:33.240 --> 0:05:35.680 the states are not in compliance, that could threaten them 0:05:35.760 --> 0:05:39.720 with their funding. Rob One thing that that was discussing 0:05:39.839 --> 0:05:42.440 court that that I had a little trouble wrapping my 0:05:42.480 --> 0:05:44.840 head around, was that that the lawyer for the school 0:05:44.880 --> 0:05:48.479 district was making the argument that that it's just the 0:05:48.600 --> 0:05:51.800 I d e. A is just a procedural set of 0:05:51.839 --> 0:05:55.400 procedural rights, and that they even this, uh, you know, 0:05:55.560 --> 0:05:58.760 something more than diminimus standard that some lower courts have used, 0:05:58.920 --> 0:06:02.239 that that wasn't actually a substantive standard. Do you agree 0:06:02.240 --> 0:06:05.880 with that analysis, and if not, is it just a 0:06:05.960 --> 0:06:10.640 question of picking the substantive standard that's right? I disagree 0:06:10.680 --> 0:06:14.080 with that analysis. There is a good argument that I 0:06:14.200 --> 0:06:18.200 d e. A just requires a certain level of process 0:06:18.200 --> 0:06:20.680 for parents. In other words, they must be included in 0:06:20.720 --> 0:06:24.720 the individualized education plan. There must be a full assessment 0:06:24.760 --> 0:06:28.480 of the child. There are numerous procedures identified in the Act, 0:06:29.400 --> 0:06:32.920 but the Supreme Court in Rally and other courts since 0:06:33.000 --> 0:06:37.600 have sort of said there definitely is a substantive requirement, 0:06:37.640 --> 0:06:41.479 though it does require that there be educational benefit given 0:06:41.520 --> 0:06:44.960 to the child. So while the Act focuses on procedure 0:06:45.080 --> 0:06:48.400 and it's necessary to comply with those procedures, there is 0:06:48.520 --> 0:06:53.479 also a substantive requirement. What that requirement is, though, is 0:06:53.520 --> 0:06:56.280 really the nub of the discussion here. Well, very quickly, 0:06:56.320 --> 0:06:59.160 in about thirty seconds, does does it require in your view, 0:06:59.200 --> 0:07:01.880 does it require the student make progress or that it 0:07:02.000 --> 0:07:05.839 just be that the program is a decent program. I 0:07:05.880 --> 0:07:08.440 think it requires the student to make progress. As the 0:07:08.520 --> 0:07:14.720 government argued, the substantial educational benefit, significant educational progress sort 0:07:14.720 --> 0:07:18.760 of best comports with the changes that the Act has 0:07:18.800 --> 0:07:23.000 been through since its passage in nineteen At that time, 0:07:23.040 --> 0:07:26.760 the key was just getting students sort of into general education. 0:07:27.640 --> 0:07:30.240 Since that time, though, we've really been able to improve 0:07:30.280 --> 0:07:33.400 the education of students with disabilities such that we should 0:07:33.400 --> 0:07:37.880 not have low standards or the minimus requirements for them. 0:07:38.000 --> 0:07:40.960 We're able to educate them much more effectively now, and 0:07:41.000 --> 0:07:45.240 the Act seems like it should recognize that advocates for 0:07:45.280 --> 0:07:48.920 students for disabilities and the people who administer American school 0:07:48.960 --> 0:07:52.520 districts disagree about the level of educational benefits that federal 0:07:52.600 --> 0:07:57.160 law requires schools provide to students with disabilities. And today 0:07:57.200 --> 0:07:59.920 the Supreme Court heard argument on a case that has 0:08:00.000 --> 0:08:02.640 split the courts throughout the country over the last couple 0:08:02.640 --> 0:08:05.480 of decades um about just what is the level of 0:08:05.560 --> 0:08:09.520 educational benefit that American schools have to provide to those students. 0:08:09.800 --> 0:08:11.600 Talking to us about the case is an expert on 0:08:11.720 --> 0:08:15.440 education law, Pete Wright, who I excuse me, Robert Garda, 0:08:15.480 --> 0:08:19.080 who is a professor at Loyal University, New Orleans College 0:08:19.120 --> 0:08:23.360 of Law. Rob you were talking earlier about the way 0:08:23.400 --> 0:08:28.360 that the the way that the federal law allows students 0:08:28.360 --> 0:08:32.000 and families to enforce the requirements of the Individuals with 0:08:32.080 --> 0:08:35.000 disabilities and Education Act against school districts to make sure 0:08:35.040 --> 0:08:38.439 that students with disabilities get what they are legally entitled to. 0:08:38.559 --> 0:08:40.080 And one of the things you talked about was the 0:08:40.120 --> 0:08:44.800 possibility of litigation over you know what program the school 0:08:44.800 --> 0:08:49.119 districts are giving to the students. If the court adopts 0:08:49.200 --> 0:08:52.160 a higher standard in this case than what the school 0:08:52.200 --> 0:08:56.840 district is arguing for higher substance standard, is there going 0:08:56.880 --> 0:09:00.720 to be an explosion of litigation against school districts by 0:09:00.920 --> 0:09:06.360 parents of students with disabilities. That's uncertain right now. Not 0:09:06.520 --> 0:09:10.720 that many parents actually sue already, and so the first 0:09:10.760 --> 0:09:13.599 step that must be taken as mediation. If you disagree 0:09:13.600 --> 0:09:16.240 with the program that's being given to your student, you 0:09:16.280 --> 0:09:20.760 initiate mediation. A vast majority of the dispute resolve at 0:09:20.760 --> 0:09:23.200 that stage, and very few go to a due process 0:09:23.280 --> 0:09:27.640 hearing or a court proceeding. I think changing the standard 0:09:28.000 --> 0:09:31.120 would certainly require schools to step up and do more 0:09:31.160 --> 0:09:35.440 for students with disabilities. I'm not sure would increase litigation though, 0:09:35.480 --> 0:09:39.240 because of parents willing to litigate, would have litigated under 0:09:39.280 --> 0:09:43.800 the sum educational benefit standard or under whatever new standard 0:09:43.840 --> 0:09:48.720 the Supreme Court may issue. It's possible, but uncertain. One 0:09:48.800 --> 0:09:52.280 justice did express concern about that today. Stephen Brier said, quote, 0:09:52.559 --> 0:09:54.840 I foresee taking money that ought to go to children 0:09:54.880 --> 0:09:58.280 and spending it on lawsuits and lawyers. Rob I wanted 0:09:58.280 --> 0:10:01.680 to ask you about one other aspect of this UH. 0:10:01.880 --> 0:10:05.680 Justice Kennedy asked Jeff Fisher, the lawyer for the for 0:10:05.760 --> 0:10:10.480 the family, UH, can school districts consider cost in figuring 0:10:10.480 --> 0:10:13.640 out what is the appropriate plan for a given student 0:10:13.920 --> 0:10:18.360 and just Jeff Fisher's answer was basically no, because Congress 0:10:18.360 --> 0:10:21.920 has made the judgment that it's cheaper to provide services 0:10:22.000 --> 0:10:25.080 for a students than have to pay money to to 0:10:25.080 --> 0:10:27.960 to support them the rest of their lives. Is he 0:10:28.120 --> 0:10:31.160 right about that? Yes, he is right about that. The 0:10:31.200 --> 0:10:34.560 Court has been very consistent saying that UM school districts 0:10:34.559 --> 0:10:38.040 cannot consider cost in terms of providing a free appropriate 0:10:38.080 --> 0:10:41.480 public education. In other words, they must do it now. 0:10:41.520 --> 0:10:43.880 How they choose to do it is entirely up to 0:10:43.920 --> 0:10:46.360 the school district. And of course school districts will take 0:10:46.360 --> 0:10:50.960 into account cost in deciding what programming to provide students. 0:10:51.559 --> 0:10:54.199 But it is correct that cost is not an excuse 0:10:54.559 --> 0:10:58.120 to not provide a free, appropriate public education to a student. 0:10:58.720 --> 0:11:01.040 In terms of the statement you said earlier from the judges, 0:11:01.120 --> 0:11:03.640 those don't surprise me at all. I do think that 0:11:03.720 --> 0:11:06.839 a new standard would increase costs for school districts. I'm 0:11:06.880 --> 0:11:10.040 not sure it would increase litigation budgets, but I think 0:11:10.080 --> 0:11:14.120 it would increase special education budgets because a higher standard 0:11:14.240 --> 0:11:20.000 should equate to more services for students. Rob in about 0:11:20.040 --> 0:11:24.640 thirty seconds. The the the people who are you know, 0:11:24.640 --> 0:11:27.480 the people representing the school district are arguing that there's 0:11:27.480 --> 0:11:29.880 a problem under the Constitution with the court having a 0:11:29.960 --> 0:11:34.240 higher burdened on schools here because schools are accepting federal 0:11:34.280 --> 0:11:36.280 money and it's it's got they've gotta have a clear 0:11:36.400 --> 0:11:38.280 rule for what they required to do, and it has 0:11:38.320 --> 0:11:40.400 not been clear before that they have to meet a 0:11:40.480 --> 0:11:43.600 higher standard. This is spending what's called the spending clause 0:11:43.679 --> 0:11:47.760 argument under the Constitution. Is there anything to that argument? Yes, 0:11:47.800 --> 0:11:50.160 In fact, I think that's one of their stronger arguments. 0:11:50.240 --> 0:11:53.040 It's pretty much the theme of their entire brief because 0:11:53.080 --> 0:11:56.680 of the suspending legislation. It's in the nature of a contract, 0:11:57.240 --> 0:12:01.000 and the defendants argument is if you change the standard now, 0:12:01.160 --> 0:12:04.840 you're essentially changing the rules of the game. When states 0:12:04.880 --> 0:12:07.480 agreed to accept this money from the federal government and 0:12:07.960 --> 0:12:12.840 undertake these significant obligations, the standard was the rally standard 0:12:12.920 --> 0:12:17.520 to some educational benefits standard allegedly, and by increasing that 0:12:17.640 --> 0:12:23.400 standard now the contract has been changed essentially, and that 0:12:23.440 --> 0:12:27.000 cannot be done unless there is clear notice in the statute. 0:12:27.160 --> 0:12:30.400 And the defendants argue there's no such clear notice. That 0:12:30.559 --> 0:12:33.679 is sort of their underlying theme of their brief. And 0:12:33.720 --> 0:12:36.079 I didn't hear oral argument today, but it would surprise 0:12:36.160 --> 0:12:38.680 me if they change that theme at oral argument. Well, 0:12:38.679 --> 0:12:43.200 our thanks to Rob Garda of New Loyola University, New 0:12:43.320 --> 0:12:44.400 Orleans College of Law.