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Tuesday, January 10, 2017

Endrew F. v. Douglas County School District: How vague statutory terms can lead to class bias in special education

Tomorrow SCOTUS will hear arguments in Endrew F v Douglas County on whether disabled students’ entitlement to a “free appropriate public education” (“FAPE”) under the Individuals with Disabilities in Education Act (“IDEA”) entitles them to more than a non-trivial educational benefit. Both the statutory language (“appropriate public education”) and Board of Education v. Rowley (the governing precedent, calling for a plan “reasonably calculated to provide educational benefit”) are opaque. The indeterminacy of precedent and text leave an opening for the federalism canon of Pennhurst to resolve the case in favor of the school district.

Federalism, however, serves a purpose here deeper than acting as a tie-breaking canon. Pennhurst gives to elected school district leaders some power to temper the middle-class bias inherent in special education. By contrast, the mushy statutory standard of “substantial” educational benefits sought by the petitioners opens up a quagmire of litigation that only the middle class will be able to traverse. By defining "FAPE" to mean "substantially equal educational opportunity," the petitioner invite litigation over an unworkably vague standard. Inviting litigation, however, can only exacerbate the class bias of a statutory scheme already notorious for favoring wealthier and litigation-savvy parents through its litigation-oriented focus.


1. How do litigation costs and vague standards convert special education into a middle-class entitlement?

At least since Mark Kelman and Gillian Lester published Jumping the Queue in 1997, “special education” under the IDEA as an ambivalent benefit for the disadvantaged. On one hand, there is a powerful moral sense that kids with disabilities need and should be legally entitled to a “FAPE” on the same terms as non-disabled kids. On the other hand, the individualized supplementary educational services provided to kids with “specific learning disabilities tend to be expensive, especially when they involve private school placements. Although the data are uncertain (Kelman and Lester, at pages 75-85, could only speculate back in 1997 about class disparities in supplemental services), there is suggestive evidence that expensive supplemental services for kids with specific learning disabilities tend to take resources away from the most economically disadvantaged kids so that middle-class families can pursue sometimes expensive private educational options at public expense. (One should, however, beware the anecdotes about the costs of private school placements: Private school placements, especially parental placements, are actually pretty rare).

This class bias is baked into the statute. There is no easy way even to diagnose, let alone design an individualized education program (“IEP”) for, disabilities like dyslexia, dysgraphia, dyscalculia, let alone simple inability to sit still and listen. The statute itself and the DOE’s rules are both muddled on exactly how a “disability” should be defined. IDEA itself, however, provides one piece of guidance suggesting the class bias underlying the statute: the term “disability” excludes a “learning problem that is primarily the result of … intellectual disabilities, emotional disturbance, or of environmental, cultural, or economic disadvantage.” Both this expressly class-based definition and the costs of the procedures used to resolve individualized disputes over IEPs insures that the IDEA will tend to drain the general public school population of resources for the benefit of parents with the knowledge, time, and money to be “squeaky wheels.” As the landmark study of special education by Chester Finn et al. noted in 2001, “in many school districts there is not one special education program but two, separate and unequal” a difference that is “keyed to parents’ differing levels of savvy and persistence” that provides the most sophisticated parents “with a premium private education at public expense” (page xix).

2. How might petitioner's proposed definition of FAPE undermine educational equality?

The interpretation of “FAPE” urged by the petitioners in Endrew F. would exacerbate this problem of process-driven class bias by creating a substantive standard so hopelessly vague that it invites litigation by law-savvy parents who can afford a lawyer. According to the petitioners’ merits brief (submitted by Pam Karlan’s and Jeff Fisher’s Supreme Court Litigation Clinic at Stanford), students suffering from learning disabilities are entitled to “substantially equal opportunities to achieve academic success, attain self-sufficiency, and contribute to society” (pages 40-43). Although the petitioner’s brief assures the reader that this standard is “eminently workable,” the brief never explained how to distinguish between equal opportunity and equal outcomes, and it never defines the baseline non-disabled student against which to compare the disabled student’s progress. If a dyslexic student is reading below grade level at a school where most non-disabled kids also read below grade level, then is this proof that the school’s IEP is working? Or may the student’s parents, armed with expert studies, argue that their child, given his or her other advantages (say, a high IQ and stable domestic environment) would achieve grade level – even above grade level -- with a different program, surpassing his non-disabled classmates who were not similarly situated to the disabled student in those other respects? Is it enough that the school set high goals if the disabled student does not meet those goals? If not, then how should a court decide whether the parent’s alternative educational program would meet these goals better?

The unmanageable character of petitioner’s standard is nicely highlighted by the Douglas County School District’s brief’s noting that the petitioner never explained precisely why Endrew F.’s proposed Fifth Grade reading IEP would satisfactorily provide Endrew with an “opportunity” that is “substantially equal” to that of non-disabled students to learn how to count and read (pages 55-57). The petitioner’s Reply Brief responded to this challenge by noting that the School District’s “instructional practices obviously were not working" (page 21) without either explaining how a court would determine whether another IEP would work better or even defining what it means for an IEP plan to “work” in the first place.

The petitioners' technically correct observation that the cert question in this case did not charge them with showing that Endrew F’s particular proposed IEP was necessary to achieve equal educational opportunity misses the point. If the Court cannot apply the standard to the specific facts of a particular case, then how will any other court use this standard to resolve litigation in an efficient, predictable way? Standards so open-ended invite open-ended litigation by dissatisfied parents who can afford lawyers and educational consultants. Aside from wastefully draining away resources from public schools, such litigation likely would exacerbate the socio-economic inequalities built into the statutory scheme. In this sense, the statutory standard offered by the petitioners, although calling for equal educational opportunity, may actually make educational opportunity more unequal.

Posted by Rick Hills on January 10, 2017 at 02:22 PM | Permalink

Comments

Why do you assume that the costs of the FAPE will be paid out of existing school resources instead of new revenues or resources already committed to individuals with disabilities? There's evidence that similar mandates for education for the poor are usually paid out of indigent services, not the school budget.

Posted by: BDG | Jan 11, 2017 9:55:14 AM

Brian, the sources of funds for special education vary by state. In general, however, funds earmarked for special education from both state and federal sources rarely cover the entire cost. For instance, federal IDEA funds in Colorado cover only 10% or less of special education's costs, while state funds cover another 30%. That leaves 70% of the cost coming out of the school districts' general budget. See the CO Depa't of Education website for soem details, at http://www.cde.state.co.us/cdechart/guidebook/sped/funding

Part B of IDEA authorizes the feds to cover 40% -- but, to my knowledge, Congress has never appropriated sufficient funds to cover such a large share.

Posted by: Rick Hills | Jan 11, 2017 10:08:42 AM

Brian, the sources of funds for special education vary by state. In general, however, funds earmarked for special education from both state and federal sources rarely cover the entire cost. For instance, federal IDEA funds in Colorado cover only 10% or less of special education's costs, while state funds cover another 30%. That leaves 70% of the cost coming out of the school districts' general budget. See the CO Depa't of Education website for soem details, at http://www.cde.state.co.us/cdechart/guidebook/sped/funding

Part B of IDEA authorizes the feds to cover 40% -- but, to my knowledge, Congress has never appropriated sufficient funds to cover such a large share.

Posted by: Rick Hills | Jan 11, 2017 10:08:42 AM

Given those funding realities, has any state ever seriously considered refusing the money and the mandate?

Posted by: brad | Jan 11, 2017 1:11:19 PM

Professor Hills,

As your comments imply, there is enormous need among lower SES families for support in educating their students who have additional educational needs.

My ability to represent parents is based on what cases I can win. If the standard the school district must meet is higher, I am more able to win cases that I bring on a contingency basis on behalf of poorer students and students of color.

To your substantive question, the most appropriate reference standard is a State's own grade-level standard. If a student is significantly behind those standards but clearly has the intelligence to succeed, then the district must implement more specialize interventions for that student. Any other measure effectively means dyslexic students who are able to pass classes without support receive nothing from the school district.

Posted by: Tim S | Jan 11, 2017 1:32:54 PM

Thanks, Rick. And Rick (I hate it when my comments double-post). I had in mind the possibility of school districts raising taxes, or moving around own-source funds, rather than relying on partial vertical xfers.

Posted by: BDG | Jan 11, 2017 4:04:24 PM

Anecdotal evidence but I thought I'd share my story. For several years in my higher education employment career I served as the Director of Disability Services at a university known for its outreach to poor and minority students. One vivid memory of that time is just what a flaming garbage heap of nonsense most IEP were...assuming that there was even an IEP, which is some cases there were not. The biggest problem was that students were put into special education without any diagnostic testing being done and then they would show up at the university expecting accommodations (because that is what they had been getting for the last four years) without there being any evidence they actually had a disability.

I got so frustrated that I wrote a grant that allowed us to partner with our graduate program in Psychology and have psyche grad students perform the necessary testing. The tough cases were the ones where our diagnostics showed that the student had no learning disability. Tough because the student had become conditioned to the accommodations and didn't want to go on without them, and I got left playing the bad guy who had to tell them no.

So I agree with the notion that IEPs have middle class bias. I also think there is a downside to IEPs that goes unappreciated: namely that poor people will get thrown into Special Ed with no valid reason and then have to live with the consequences of that incorrect assignment for many years. In other words, it is not simply that Special Ed is biased in /favor/ of the middle class because they have the ability to be squeaky wheels--it is equally true there are sublime ways in which it /actively hurts/ the poor. Not just because some poor do not get the services they need but also because some people will get services they do not need and become dependent on them.

If schools are going to sort people then it is vital that the sorting be done correctly. When it comes to correct sorting for learning disabilities they key person is the educational diagnostician. Sadly, however, these are usually the last thing a school district wants to pay for because they don't see the value added.

Posted by: Daniel | Jan 11, 2017 4:51:32 PM

Not seeing the point here. Is the issue the standard or their standard? Clearly Free APPROPRIATE Public Education implies sum standard, otherwise it would just be Free Public Education.

Posted by: anon | Jan 11, 2017 7:32:56 PM

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