Special needs lawsuit could have major parental choice implications

The Senate will no longer hold confirmation hearings on prospective Education Secretary Betsy DeVos Wednesday, but another hearing will have at least as much potential to rock the world of public education.

The U.S. Supreme Court will hear arguments in what could be a landmark special education case. And unlike confirmation hearings, marked by their predictable partisanship, the case has confounded the tribalism that typically marks America’s education debate.

The nation’s largest teachers union and the national charter school association have filed friend-of-the court briefs on the same side. The National Education Association is at odds with several associations of public-school administrators and districts.

Ironies abound. The school district in Douglas County, Colo. argues it shouldn’t have to pay private school tuition for the family of a child with special needs. Yet the same school board is currently petitioning the high court to hear a separate case arguing its unique, district-created voucher program — which could help all students attend private schools at public expense — is constitutional.

At its core, Endrew F. v. Douglas County School District deals with bedrock questions about educators’ obligation to help all children meet their potential.

It also highlights society’s evolution when it comes to educating children with special needs, and the ways the existing education system sometimes falls short of its ideals.

According to the Denver Post, Endrew’s parents placed him in a private school that specialized in serving children with autism after he began to show serious behavior issues in the public school he attended.

The district, they argue, should reimburse them for tuition to fulfill its obligation to provide him with a Free Appropriate Public Education – a right spelled out in the Individuals with Disabilities Education Act, first passed in 1975.

The school district argues federal law required it to provide Endrew with “some educational benefit,” and it met that requirement. A federal appeals court agreed, finding the district was only obligated to provide “more than de minimis” educational benefits. In court briefs, the district notes parents and educators negotiate the details of each child’s Individualized Education Program. While the law doesn’t guarantee outcomes, other “procedural and systemic requirements” are designed to ensure students’ needs are met.

Endrew’s father, however, contends those requirements, as interpreted by the district, did not ensure his child received a “meaningful” education.

“If he was able to show up to school and say ‘good morning,’ that was good enough for them,” he told the Post. “They weren’t moving his education forward.”

His family, backed by civil rights and disability advocacy groups, argues special education has evolved since the 1982 Supreme Court ruling that helped set the standard for the education of children with unique abilities. A group of 118 members of Congress, including Democrats who played a key role shaping education legislation, says updates to the federal special education law over the past two decades were designed to give it more teeth.

Meanwhile, the federal government, in an invited brief arguing the high court should take the case, contends the 10th Judicial Circuit’s logic siding with the district is “erroneous.” Other federal appeals courts, including the Third Circuit, have argued federal law places a heavier burden on public schools to provide a meaningful education to children with special needs.

If the government is right, and Endrew and his parents prevail, how would the education system respond?

This is where the case veers into the realm of parental choice.

In one friend-of-the-court brief, an association of urban school districts argues adopting a higher educational standard could ultimately lead to more parents of special needs students doing what Endrew’s did, enrolling their students in private schools at public expense, possibly after contentious lawsuits.

Expanding a private remedy for parents of students with disabilities who are unsatisfied with the progress achieved by their children in public schools would undermine the school’s role in IDEA’s collaborative process. The result would be to increase both litigation and unilateral private placements. Both of these actions would divert significant resources from school districts’ efforts to educate other students with disabilities and those without.

On the other hand, a joint filing by the National Center for Special Education in Charter Schools and the National Alliance for Public Charter Schools argues all schools should be held to the higher standard.

The charter school experience illustrates that use of the Tenth Circuit standard is not necessary to avoid undue costs. A more demanding standard can instead stimulate greater coordination amongst educational institutions and innovation. Importantly, there is no evidence to suggest that the meaningful educational benefit standard used by the Third Circuit has resulted in undue costs for the states or that application of a “higher” standard will result in a greater number of IDEA disputes.

The higher standard, they go on to argue, “is entirely consistent with the charter school practice of giving due consideration to parental choice and working to meet the educational goals for all students.”

In a similar vein, some states offer vouchers – like Florida’s McKay scholarships or its new education savings accounts, known as Gardiner Scholarships – that allow parents to enroll special needs children in private schools without going to court.

Allison Hertog, a lawyer who represents special needs children and sits on the board of Step Up For Students, the nonprofit that administers the Gardiner Scholarship program and publishes this blog, said voucher programs sometimes create a safety valve than can head off costly lawsuits and save school districts money.

“The vouchers don’t cover the entire tuition, whereas if a parent wins reimbursement after litigation, the district has to not only defend the lawsuit but often pay for the entire tuition amount,” she said.

Students who accept vouchers in Florida and elsewhere often waive some of the federal civil-rights protections at issue before the high court. A report published last year by a group of civil rights attorneys concluded parents often accept vouchers, in part, because they feel there are no other options for students who are being poorly served in public schools they leave behind. A follow-up article in Education Week noted that vouchers, unlike court-ordered placements, often don’t cover the full cost of tuition, especially at pricey special education centers, raising questions about access for low-income parents.

For school choice advocates, this raises the question about whether simply offering new options, like existing voucher programs, or indeed, the one Douglas County wants to create, is sufficient to give all children access to the education they deserve.

And for groups like the NEA, who have weighed in on Endrew’s behalf, this case highlights the ways private educational options can help serve the public good – even if they may “divert” some students and resources from traditional public schools.

As Robin Lake of the Center on Reinventing Public Education has argued, a higher standard of education for special needs students could force all sides in the current battle over the future of public education to check some of their assumptions, and possibly, hopefully, find new ways to work together.

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