What rights does a disabled child have at school?

Lyle Denniston

Lyle Denniston, Constitution Daily’s Supreme Court correspondent, looks at a case under consideration for the Supreme Court that could clarify national educational standards for disabled children in the public school system.

Over a period of more than four decades, the national government has moved deeper and deeper into the realm of education for disabled children, but it still is not clear what the ultimate goal is supposed to be.  Federal funds now are provided to promote an “appropriate” education for each disabled child, but what would that be?

The federal government is now asking the Supreme Court to clarify what Congress has had in mind since the lawmakers took the initiative in 1975 to set policy, with the aim of relieving parents of disabled children from the burden of having to win, one constitutional case at a time, a right to attend public school.

Before Congress passed the first federal law to assure access to public schools, the pattern across the country was either to bar students with disabilities entirely from public schools, or to let them attend with little more to do than wait until they were old enough to quit school.  Tens of thousands were kept in institutions with little preparation for when they might emerge.

Because education is traditionally, and by constitutional understanding, governed by state and local officials, Congress used the one workable means to influence policy: it made federal funds available to induce the nation’s school systems to open their doors to disabled children.

In the beginning, the goal was mainly to assure access.  In those days, the science was not yet well developed on how to educate children with autism and related disabilities, so the emphasis had to be on simply getting those young ones into classrooms.  The specific hope was that they could learn while attending classrooms along with other students who were not disabled, rather than being taught separately in isolated “special education” environments.

Congress wrote a phrase to express its ultimate aspiration: each disabled child was to have a “free appropriate public education.”  The taxpayers of the nation, not of the states, would pay the bill for developing the means specifically to educate the disabled.  There is no question that many of those children have special needs, but, as much as possible, they were to have those needs met by the public schools.  But what was “appropriate” in the education of a disabled youngster?

Under the federal law, each disabled child was to have an educational plan, tailored to that child specifically.  School officials were required to work out each such plan with the parents of the child, and the parents were given a right to sue their school district if the discussions over the plan broke down.  (If a school district could not provide an adequate plan, the parents could choose send the child to a private school, and the school district would reimburse them for the tuition.)

This was the scheme that replaced the pre-1975 situation, when parents had to bring individual lawsuits, claiming access for their child as a constitutional requirement of either “due process” or equal legal opportunity.  A few of those lawsuits had succeeded, but they remained an isolated answer to the educational challenge.  Under the new legal regime that Congress provided, parents could still sue on behalf of their children specifically, but such cases were directly tied to the formation of education policy in general.

The meaning of what an “appropriate” education is, and what an “appropriate” individual plan for a child would be, reached the Supreme Court for the first time in 1982, in the case of Board of Education v. Rowley.  In that ruling, the court provided a partial definition and refused to make it more specific.  Since then, it has never returned to the issue.

The court declared then that public schools did not have to maximize the potential of children with disabilities to learn, because Congress did not aim at “strict equality of opportunity or services” in the public school setting.  But, it said, each child’s plan must be “reasonably calculated to enable the child to receive educational benefits.”  While it said the benefit had to be “meaningful,” it stopped there.  Because of the wide variety of individual capacities, it said, it would not “establish any one test” for what would be appropriate in a given child’s situation.

In the years since then, the lower federal courts have reached widely varying interpretations.  From a low point of “merely more than the minimum” or a bit more than the trivial, the standards have moved up to varying higher levels of achievement.

The issue has now returned to the Supreme Court.  Along with his parents, a 15-year-old Littleton, Colo., student, identified only as Endrew F. (his parents call him “Drew”), is challenging one of the federal appeals courts that set the standard at the lowest level of achievement.  The youth is autistic and has attention deficit disorder, compromising his verbal and non-verbal communications skills.

When his parents and school officials couldn’t agree on a plan for him in public schools, he was placed in a private school that specializes in teaching autistic students.  The family then sued to recover the private school tuition, contending that the school district was obliged to pay because it failed to provide Drew with an adequate educational opportunity.  A trial judge and the U.S. Court of Appeals for the Tenth Circuit denied the challenge, finding that the law only required a benefit just above the trivial, and that Drew had done a bit better than that in public school.

At the invitation of the Supreme Court, the Obama administration has offered its views. In a legal brief filed in August, the administration said the conflicting views of the lower courts should be straightened out by the Justices, and that the court should settle on a single, uniform standard: the educational benefit, to satisfy the law, must be “meaningful” and that means that each child’s plan must include “measurable annual goals” in achievement, and the actual services provided to the child must be capable of helping that child move toward achieving the annual goals.

“No reasonable school district,” the brief argued, “sets out to provide educational benefits to its non-disabled children that are barely more than trivial.”   It denies equal educational opportunity if that is all that a school district aims at for a disabled child, it said.

The Justices are expected to act soon after ending their summer recess on the Colorado family’s request to consider setting a national standard.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

Recent Stories on Constitution Daily

National Constitution Center launches free Constitution app

Five lessons we can learn from George Washington’s Farewell Address

It was 229 years ago today, the Constitution was signed in Philadelphia