Wednesday, March 22, 2017

Huge Win in Supreme Court for Special Education

Update:  Father of autistic kid Gorsuch ruled against will testify to Senate against his nomination.

end of update

From NPR:
School districts must provide students with disabilities the chance to make meaningful, "appropriately ambitious" progress, the Supreme Court said today in an 8-0 ruling.


The decision in Endrew F. v. Douglas County School District could have far-reaching implications for the 6.5 million students with disabilities in the United States.

"It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not," read the opinion, signed by Chief Justice John Roberts.

The case drew a dozen friend-of-the-court briefs from advocates for students with disabilities who argued that it is time to increase rigor, expectations and accommodations for all.

"A standard more meaningful than just above trivial is the norm today," wrote the National Association of State Directors of Special Education.
I do worry some over that "appropriately ambitious" progress; is that like "with all deliberate speed?"

To note:
Significantly, Judge Neil Gorsuch, currently in confirmation hearings for the Supreme Court's vacant ninth seat, has repeatedly ruled the other way on similar cases.

Gorsuch's opinions in eight out of ten cases involving students of disabilities all tended toward limiting the responsibilities of school districts — for example, if they leave school of their own accord out of frustration. IDEA's standard of a "free appropriate public education," reads Gorsuch's opinion in one of these cases, "is not an onerous one."

When questioned on his record, in light of this new ruling, during his hearing today by Texas Sen. John Cornyn, he said "I was wrong, Senator, because I was bound by circuit precedent, and I'm sorry."
A little late, sir.

39 comments:

Eric B said...

An 8-0 decision is huge. Even if Gorsuch does try to throw a monkey wrench, he doesn't have much support. I'm not a lawyer, but I think "appropriately ambitious" is actually pretty strong language in favor of the student, since it seems to me to be based on what the student can do. I'd be happy to be corrected, though.

Anonymous said...

The fact that he is capable of saying, "I was wrong... I am sorry." is a point in his favor.

Silver Lining

Anonymous said...

I think Seattle Schools is in big big trouble in the realm of noncompliance. In most of their schools. More resources will be needed to do the right thing in this city. Of course funding is an issue. Can imagine the 'we can't do that because now we have to divert our funds to SPED kids' passive aggressive blame starting from downtown in 3,2,1.

SPED parent

Anonymous said...

There's a funding problem because everyone else is stealing the special ed money. Special ed money is used to staff cafeterias, playgrounds, direct traffic, monitor hallways. The "extra 20 minutes of recess" your kid received is bought and paid for with special education funds. Who is on that playground where your kid is playing? It's the special ed staff silly! So, I hope everyone goes home and thanks their local disabled kids for the education they are providing your kid. Better yet. Invite them over for a birthday party or playdate. One birthday party a year would be a huge deal for many kids with disabilities. So, why not?

speddie

Anonymous said...

Oh where oh where did Kelli Schmidt go, oh why oh why did she leave?

Dirty secrets

dan dempsey said...

How interesting 8-0.

So how will the required services ever be funded in a state which for years has been out of compliance with the State Constitution to say nothing of real IDEA compliance?

The legislature is still in session. The legislators need to be aware that the ante has been upped in this game.

Anonymous said...

I wish people like Dan would stop spreading the myth that students with disabilities are impossibly expensive. This attitude fuels the culture of low expectations... since they are so "impossible".

Stop stealing from special ed, and the funding problems go away. General ed needs to fund special ed classrooms because special ed is basic ed.

Most teachers organizations claim that they already support ambitious standards for students with disabilities. How you prove that your kid is getting appropriately ambitious education remains a mystery, and will probably not result in all that much difference except in the most egregious cases.

speddie

Anonymous said...

In reality, any parent thinking about using this decision to their advantage should realize it will require close to $100K for legal cost and take 5-10 years of their time. In the meantime their child will continue to suffer unless you have the cash to go private while your case moves through the system. In the end everyone will be miserable regardless.

The IDEA does not help parents get meaningful benefits or FAPE, the IDEA places legal constraints on parents by requiring them to exhaust all remedies. The 9 circuit court has not been kind to parents when it comes to cases involving FAPE and school districts win 97% of all special education due process hearings.

Under the IDEA, there is lots of compensatory services awarded to students, which is short for more of the same by those who do not know what they are doing because of lack of supports by their employers...school districts.

SPed Parent

Anonymous said...

There are wide range of cost associated with each type of disability. From simple supports to some students that cost over $100,000 per year. There are are also 3rd parties providing services costing millions per year for less than 25 students.

To think special ed in not costly is naive. The real question should be what should be expected for the millions spent each year.

SPed Parent

Curious George said...

Does anyone know of a way to find a reasonable estimate of today's SPED costs per student? And then some way to determine what impact today's ruling will have on future costs?

There are not unlimited funds. I'm guessing that SPED will move in front of things like sports and arts. McCleary only covers basic education.

I know many will claim that there needs to be new revenue sources, including an income tax, but I don't see that happening. At most a "modest" capital gains tax.

Anonymous said...

Melissa, I feel you are taking a cheap shot with "A little late, sir."

When questioned on his record, in light of this new ruling, during his hearing today by Texas Sen. John Cornyn, he said "I was wrong, Senator, because I was bound by circuit precedent, and I'm sorry."a

Circuit court precedent is an adequate explanation for his previous ruling. Now the Supreme Court has clarified a previously fairly ambiguous legal situation. Gorsuch was hardly a lone judge in his ruling. He stated he was sorry.

-- Dan Dempsey

not mc-t said...


about time. and 8-0 whoot. yes sps is in trouble. congratulations merrimack, speddie and mc. be nice if we could be supportive of ALL sps families...

no caps

Anonymous said...

Great that a unanimous 8-0 decision .... but will this mean much?

Enforcement? By whom? ... Look at what good WA Supreme Court has done on McCleary thus far.

Well at least there is now a great starting point for attempting to bring about justice for this seriously under-served portion of the student population.

-- Dan Dempsey

Anonymous said...

Does this imply that "the chance to make meaningful, appropriately ambitious progress" applies to all students, or is this something new and specific to special ed only? Is "grade level advancement" automatically considered "appropriately ambitious progress", even if it's "social promotion," or if students are already exceeding grade level standard?

@ Curious George, you wrote: "I'm guessing that SPED will move in front of things like sports and arts. McCleary only covers basic education." Shouldn't SPED have been in front of sports and arts already?

Unclear


Anonymous said...

The legal right to the "chance to make meaningful, appropriately ambitious progress" applies to those kids sitting idly in self-contained special education classrooms - which are pretty abysmal. Judge Roberts noted that students with disabilities in regular classes were already making enough progress, presumably. That was the case. And if you look around, you'll see the same lack of "ambition" in special ed. Students in these classroom are deemed "successful" only because the expectations have been reduced to nil. Good to have a supreme court justice acknowledge this, even if there's no other net result. I can't imagine that it will be any easier to prove that your kid is getting an "appropriately ambitious" education than "merely more than a di minimus" education. Di Minimus has so far been the legal standard for special education. And that's what we have - di minimus.

speddie

Melissa Westbrook said...

Dan, I'm entitled to my opinion. That he waits until his hearing to be on the Supreme Court seems a little self-serving.

I think a better explanation of what Special Education is, who is served (different types of Sped services), costs and, most of all, the underserving of these students would go a long way to helping other parents and the public understand the situation.

Mary G said...

Dan, I think what most people see when they look at Gorsuch's record for Special Education is abysmal. The Luke P. decision, available at https://www.ca10.uscourts.gov/opinions/07/07-1304.pdf, is an opinion that Gorsuch himself authored. In it, he wrote, "we have concluded that the educational benefit mandated by IDEA must merely be “more than de minimis.' Words have meaning, and he added language here, "merely," that did not exist in the 10th circuit or in any other decision, which essentially lowered the standard in the 10th circuit and was responsible for Endrew F. ending up at the Supreme Court. Neither you nor Gorsuch can rest on the claim that he was merely relying on 10th circuit precedent, when essentially he reset the precedent in the 10th circuit at a new low bar.

As for calculating the cost of special education, that issue is a difficult nut to crack. Special education students are general education students first, and many of them spend much of their day in gen ed classes with supports. Line item budgets often don't give enough detail to figure out how much of the budget actually goes to special ed versus general ed. Further, duties between special ed staff and gen ed staff are naturally merged. But, as "speddie" has repeatedly pointed out, in Seattle Public Schools, special education aides are often assigned to duties that have very little to do with the education of students with disabilities, and, further, special education teachers and aides are used as the de facto sub pool for gen ed. Special education classes often go for days without any kind of teacher present, much less a special education teacher present. I do not know how prevalent this is in other districts. It is certainly difficult to get at that information. The bottom line is that I know this goes on, but I don't think it contributes as much to underfunding of special education as "speddie" does, and I don't think solving that issue will result with adequate funding of special education.

The argument that I would make is that our capping system for special ed is probably not constitutional in Washington, as special education students are also covered by the same constitutional language cited by McCleary, that "[I]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex." By capping funding at 12.7%, Washington State law is not making ample provision for the education of all students with disabilities. Further, the formulas relied upon for calculating a multiplier of special education of .9039 was based on figures from 20 years ago and probably have no basis in actual data today.

I do think that both the current education budgets put forth by the Washington State Senate and the House underfund special education. Both versions would result in delivery of special education that would probably not meet the "appropriately ambitious" standard of the Endrew F. decision, nor do they meet the McCleary language.

For further info funding issues concerning special education, I would refer people to the nice roundup of funding issues prepared by the Arc of King County, available at http://arcofkingcountyvoice.blogspot.com/2017/02/education-funding-what-is-plan-and-will.html.

Sophie said...

I understand the arguments about paramount duty. (Essentially, education spending must come first in the State of Washington).

But within education spending, is their a hierarchy? Would the IDEA mandate that all of the needs of all of the SPED students be met before the needs of the GEN Ed students? What about highly capable students?

Could an argument be made that their needs aren't being met and therefore the tuition costs from Lakeside (or some other highly selective private school) be paid for by the District?

What about music, arts, sports? I'm guessing pretty far down in the pecking order.

Anonymous said...

There are obvious disparages in special educational services for instance,

Many schools in Seattle take the funding for one class of disabilities and pool those funds in order to fund another pool requiring very expensive one to one or many to one support aids. While it is appropriate for some students to have one to one or many to one supports, it's not appropriate for the other pool of students to simply be placed in a "studies skills" class so the school and the district can check them off as served.

Any reasonable person observing a "studies skills" class will undoubtedly realize there is very little learning going on and most teachers placed in a room of 25 special needs students are quickly overwhelmed.

SPed Parent

Mary G said...

Sophie, the Washington State Legislature decides what is the definition of basic education. Basic education is defined in the Revised Code of Washington here: http://app.leg.wa.gov/RCW/default.aspx?cite=28A.150.220. I would encourage you to read what the legislature considers basic education. It includes language for highly capable students as well as students with disabilities, students who speak other languages, students who are underachieving, etc. There is no ranking of priorities in the RCWs.

IDEA is a federal mandate to provide for meaningful progress of education for students with disabilities. The history of IDEA stems from the fact that until the mid-1970's, school districts would routinely excluded students from any sort of education whatsoever. IDEA requires public schools to provide students with disabilities a free appropriate public education. There is no similar federal right accorded to "highly capable" students. I think most people would say that even if a highly capable student is bored and under-educated, as long as that student is not a student with a disability, he or she is probably receiving at least the same minimal benefit that is required by IDEA. IDEA does not require the "best" education. It requires a floor of opportunity.

As far as the needs of highly capabable students aren't being met, I have no opinion on the merits of such an argument.

I don't know about the merits of music, arts or sports as a legal argument. I do know that many children benefit from them, but in many school districts students with disabilities do not have equal access to them, and this is an area where a legal argument could be made.

Anonymous said...

You would never win a private placement lawsuit for a HCC argument, possibly if it's a 2e case, but you're going to need around $40K just to get through due process and still you're most likely going to lose a lack of FAPE argument.

Review some past cases and you will understand why many SPED parents would be better off with vouchers. No lawsuit necessary just take the money and shop for services while still attending your local school. Taking the vouchers doesn't mean exiting your school or dropping your IEP, it does however relinquish the district from the responsibility for providing those services, but only for that school year and if your child is not being served why would that matter?

Vouchers are not the best choice for everyone, but I think vouchers would be better for the majority of students with IEPs attending the Seattle school district. It would also take pressure of the teachers who are not trained in teaching methodologies proven successful in resolving various learning differences the majority of these students have.

SPed Parent

Mary G said...

SPed parent, I can see why you would say that, especially where learning disabilities are concerned. I would encourage you to push SPS to do what they are supposed to do, which is provide your student with an ambitiously appropriate education, rather than turn to advocating vouchers. Please see this source, which I believe is sufficiently neutral for an illustration of some of the issues of vouchers for students with disabilities: http://www.edweek.org/ew/articles/2016/07/20/vouchers-put-some-parents-in-squeeze-on.html, as well this article concerning data of voucher effectivness: http://news.stanford.edu/2017/02/28/vouchers-not-improve-student-achievement-stanford-researcher-finds/.

I believe that Seattle Public Schools needs to make significant improvements in training its teachers in specific modalities specific to learning disabilities such as dyslexia to afford an appropriate education to students with learning disabilities. We can use your energy to encourage them to do so.

Anonymous said...

On reading the comments of Roberts on the ruling, I have a concern. There always seems to be loopholes when disabilities are addressed in educational settings, allowing society to weasel its way out of its obligations to their fellow humans. In this case, Roberts agrees that students spending the majority of the day in a general education classroom need more academic challenge. He is considerably more circumspect about expectations of students who are in self-contained classrooms. Oh sure, they too should be appropriately challenged according to their individual needs, but there is more than a whiff of low expectations in his writing. What's to stop schools from remanding kids back to self-contained classrooms, especially those kids with emotional-behavioral manifestations of their disability? After all, most teachers, parents and sadly students really don't want them in their general education classrooms. Call me

Paranoid

Mary G said...

Paranoid, your concern is completely valid. I too, am concerned, especially with Betsy De Vos at the wheel of the DOE, and with bills in the hopper hoping to demolish the DOE.

Historically, the role of the parent was emphasized both in the IEP and in the State Advisory Panels(SAPs) (known in Washington as SEAC).The reason this is so is because of the individualized need of the students, and the recognition that individualized goals would need to be established. For more on the SAP, which is supposed to be 51% or greater persons with disabilties or parents of persons with disabilities, see http://www.wrightslaw.com/heath/state.advisory.panel.htm. In Washington state, our SAP is improperly composed, which accounts for its ineffectiveness. A properly composed SAP would be helpful in advising OSPI of some of the problems in special ed in this state.

Anonymous said...

I think before we as a group choose to bash the federal government we should first and foremost look at OSPI, Seattle public schools and this cities citizens.

There has been 5 years of non-stop hyperbole over equity which has now culminated into a preposterous proposal for a sugar tax to benefit a small group of students.

Besides the actions of a handful of motivated parents, I've seen nothing from this city addressing the systemic issues with special education in it's schools.

You would think the bleeding harts would do something?

Ugh

Melissa Westbrook said...

Ugh, I'm not sure I would include all citizens. They vote in the taxes and elected officials to oversee what happens in the schools. Very few have the understanding of all the in and out of public education. The citizens have consistently voted in levies and bonds that have supported our schools.

But yes, OSPI and Seattle Schools bear the responsibility for their shortcomings for Special Education and especially around educating the public on what the responsibilities are.

Anonymous said...

Appropriately ambitious ?, ah you see there's the out. Who defines appropriately ambitious? Who defines FAPE? All I see coming out of this ruling is another group of professionals making money off testing children to find their appropriately ambitious potential.

Mole hill

Anonymous said...

I read the articles you linked-uped and still believe in light of the failures of Seattle public schools that many parents of students on IEPs would benefit more by directly receiving funds related to providing services. Those who are happy with the districts approach can simply choose to have the same old delivery model.

Local parents spend thousands of dollars yearly to supplement the lack of services provided by our schools. So in those cases voucher dollars would be welcome. It is true that the district would lose those dollars, but they don't deserve the dollars in the first place.

You have to wonder why the Federal government does not insure that a school district is capable and willing to provide effective services before issuing the funds. Yes I understand OSPI's role in all this and that is why the new USDE might choose to by-pass states and award money straight to the students. This by-passing at least eliminates the possibility of several layers of bureaucracy miss appropriating those funds...as it is very common practice.

From my point of view OSPI and the Feds believe an IEP is just procedural in it's current form however, there is hope that under new USDE leadership things are heading in the right direction.


SPed Parent

Anonymous said...

I think you're not correct in your statement,

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) noted that Gorsuch was not part of the three-judge panel whose ruling was directly reversed in the court’s decision in Endrew F. vs. Douglas County.


Fake News

Anonymous said...

"Circuit precedent" in Gorsuch's testimony was bull. If the Supreme Court finds 8-0 against you, you did not have much (any?) circuit precedent on your side. They found plenty of legal reasons, either from case law or legislative history, that satisfied everyone on the Supreme Court from Ruth Bader Ginsburg to John Roberts. So methinks Gorsuch didn't try very hard - his ruling appears to have been a opinion of his own in search of law, because he must not have tried very hard to use the reasons the Supreme Court did. And of course by adding "merely" which was his own opinion, not a legal standard, he betrayed his bias.

Likewise, the trucker case. And there are several other cases dealing with the rights of non-white-males that legal scholars say he kind of invents his own "standard" for review.

He packages himself as very legal. But the "merely" is more than telling. The fact that a decision could go 8-0 means the law was there, he just didn't use it. Because even if you think your own Circuit precedent goes a certain way, if you find the outcome offensive to your legal sensibilities, lawyers often write "while our Circuit has X precedent, we note that in such and such circuit, and indeed in many, the outcome would be quite different. It is past time for our circuit to embrace the idea that ... " -- Yeah, that happens. You don't actually have to wait for the Supreme Court to rule - judges can totally say, hey, we've become an outlier, times have changed, other circuits have changed, so we can abandon that precedent that isn't very applicable anyway and choose to follow the current law. It's done all the time, when the new outcome is morally right and everyone admits it.

So between Gorsuch's failure to say "well, I dont' think this rather weak precedent applies anymore because ..." and his opinionated addition of "merely" -- we know a lot about him.

Math Counts

Anonymous said...

This conversation has nothing to do with, "Likewise, the trucker case. And there are several other cases dealing with the rights of non-white-males that legal scholars say he kind of invents his own "standard" for review."

This is not racial issue thread nor a racial issue period. Try and maintain your composure or are you here to race bait and destroy this conversation like you always do?

--Poussin

Anonymous said...

This decision will not ultimately change the outcome of the case. The family might be able to revisit the case but they will not be able to prove lack of appropriately ambitious progress (whatever it is), it's like trying to prove denial of FAPE. Very difficult and the 9th district has shot down almost every case of denial of FAPE brought before them. Yes the liberal friendly 9th district.

While I feel for the parents and the student, we here do not have enough information to know the whole story. What we know is the student is autistic and apparently can now build lego models after years of private schooling.

Based on this if his public school taught him to build legos in the shape of the capital would that be appropriately ambitious progress? Apparently that's the bar the father set at the hearing.

Just throwing out the word autism gets everyone sympathetic, it's way more complicated than that! Just ask a teacher who works with autistic students every school day.

Reality

Anonymous said...

Mary G, you seem very knowledgeable. What sources would you recommend to learn more about teaching students with learning disabilities?

Wanting More

Anonymous said...

I am not getting the pessimism up-thread in regards to the ways that families in SPS, who have to fight so hard to get so little, even less the merely the minium, can use this SC decision. What if you want to advocate that your kid in a self contained class ... uh .. gets out once and while to add "heft" to academics? Slam dunk this is your ruling. What if you have a 2E kid who nobody wants to acknowledge has that "E" and refuses to connect the dots between academic "heft" and behavior? This is your ruling, slam dunk.

Yes, it might be a long long road between this and turning to due process filings, but that road begins with this SC ruling which is a place to start with your schools. Right?

Glass half full?

Anonymous said...

It all boils down to the word "appropriate ". What is "appropriately" ambitious? What is Free and "Appropriate" public education? At least we all know what "Free" means.

As to the 2E HCC services for the disabled student. Not really a slam dunk. "Appropriately Ambitious " is only for kids who are NOT in a non disabled classroom, e.g. a self contained sped room. Let's hope that such a student isn't languishing in a self contained special ed room. But if they're in a plain old classroom, this ruling doesn't apply. No appropriate ambition for you!

speddie

dan dempsey said...

Mary G. makes an interesting point about the 12.7% cap on SpEd funding. I think this 12.7% is done on a district basis.

At Ft. Lewis's Madigan General Hospital a lot of children with disabilities are treated. The army stations many families with handicapped children to Ft. Lewis because of the availability of services at Madigan.

Evergreen Elementary School is very near Madigan. 37% of Evergreen students are SpEd.

SpEd students are not evenly distributed throughout the state. The 12.7% cap seems arbitrary. Some districts may play games to stay at 12.7% or lower.

I would appreciate Mart G. telling us more about this cap.

SpEd Curious said...

I'm confused about what SpEd is. I know that families trying to get their children who have IEPs into option schools have had to go onto a separate wait list. But I don't understand how a school can cap the amount of SpEd funding anyone receives. I have a friend who was diagnosed with dyslexia in 10th grade. The solution was a relatively brief (presumably pretty inexpensive) course in reading strategies. A friend's college roommate was diagnosed with autism spectrum disorder in college, but earned his degree and got a job without any special ed services. My daughters' elementary school is full of children being diagnosed with learning disabilities at various ages. If a 3rd grader is found to have dysgraphia or dyscalculia or ADHD, don't they get special ed services? Meanwhile, another friend's child is in a self-contained classroom. He's eight and doesn't really speak. Maybe a few words here and there to earn time on an iPad. Obviously everyone would like him to be able to speak. The staff in the self-contained classroom seems awesome and my sense is that everyone works really hard to encourage him to speak.

So, I guess I just don't understand who this supreme court ruling is talking about. I don't understand how you can cap SpEd funding. If you find out a 17-year-old has dyslexia, you would help them, right? "Every student. Every school. Every day." That's our motto, right?

Anonymous said...

To get special ed under IDEA you have to qualify for it based on a district evaluation. Having a diagnosis may help you qualify, but it's no guarantee. Sure, the district is required to educate all students with dyslexia, or ADHD, or Autism, but they don't all qualify for special ed. The district is also required to use a multi tiered system of supports, special ed being the last tier. If a student just needed some pointers or brief intervention, there's nothing stopping a general ed teacher from doing that. Lots of kids need that.

Another parent

Hey Polly said...

Congrats to people that won the deal. I am sure that it's important to fight for own rights. Academic process had never seemed easy for me. I always face the difficulties but sometimes I find the ways to overcome them such as high school writing services when I have deadlines, special courses when I don't understand the subject. It's important to make an effort to understand something that is unclear, something that you can't complete. That's a key for successs.