January 11, 2017

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Quick and dirty summary of SCOTUS Endrew argument

As mentioned earlier on the blog, AASA submitted an amicus brief in the critically important Supreme Court case Endrew v. Douglas County School District. Accompanied by our terrific lawyers, Ruthanne Deutsch and Chris Borreca, I had the privilege of hearing the oral argument in the Endrew case today and wanted to share a brief summary of my impressions and to let you know that the AASA amicus was mentioned not once, but TWICE in the Court. Amicus briefs rarely get mentioned or cited during oral argument and the fact that ours was referenced is a testament to the strong arguments we presented.

Here's my quick and dirty summary of what happened and may happen: Based on the oral arguments it’s going to be a very close vote. If it goes 4-4 than the 10th Circuit decision in favor of the district stands. That’s a good thing. The court could choose to indicate that the 10th circuit standard for some educational benefit is weak, but not propose a new standard. If they propose a new standard it will be terrible for us, but that doesn’t appear to be the direction they want to go in since they really didn’t know what standard they should adopt. Instead, they may just criticize the 10th circuit for their poor definition of educational benefit and encourage them to find some other way of determining educational benefit and point to the 2nd Circuit or another Circuit that has applied some educational benefit more accurately. If they criticize the 10th Circuit case in this way it could lead to more litigation for states in the 10th Circuit (CO, KS, NM, UT, WY, OK), but they aren’t very litigious places anyway and it would be far better than adopting a new standard that applies to everyone across the U.S. There were many tough questions on both sides (as there should be) and it’s pretty clear that the “merely de minimis standard” the 10th Circuit adopted for educational benefit is gone. The major question is whether it is replaced with anything else or just ruled as an inappropriate standard. The transcript of the oral argument was just posted online, so you're welcome to read it for yourself and decide what the Court is thinking, too! 


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