January 5, 2017


The Advocate, January 2017

by Sasha Pudelski, assistant director, Policy and Advocacy, AASA, The School Superintendents Association

On January 11, 2017, the U.S. Supreme Court will hear a special education case called Endrew v. Douglas County School District. The case focuses on what level of educational “benefit” a school must offer students with disabilities under IDEA.

For the first time in its 150-plus year history, AASA has chosen to author our own amicus brief for the Supreme Court given the high stakes for school districts if the Court rules in favor of the petitioner (Endrew) and not the respondent (Douglas County School District).

Why are we doing this? If the petitioners prevail, even schools that meticulously abide by IDEA’s extensive procedural requirements would have to be prepared to justify that every student’s IEP is reasonably calculated to provide a “meaningful” or “substantial” educational benefit. Not only would this standard be totally impractical and counter-productive, it would also go against Congressional intent since Congress has never even contemplated redefining the standard set by the courts under Rowley of “some educational benefit” despite several recent reauthorizations.

The background on the Endrew case is as follows: Endrew (“Drew”) is a former student in the Douglas County School District who has been diagnosed with autism. The school district provided Drew with special education and related services under a series of IEPs over several years. After a difficult fourth-grade year, Drew’s parents rejected his proposed fifth-grade IEP and enrolled him in a private school that specializes in educating children with autism.

Drew’s parents then sought reimbursement from the district for his private school tuition on the grounds that he had been denied a free appropriate public education (FAPE). An administrative law judge concluded that Drew’s parents were not entitled to reimbursement because the proposed IEP was procedurally sound and reasonably calculated to provide some educational benefit.

A federal district court upheld that determination. On appeal to the U.S. Court of Appeals for the Tenth Circuit, Drew’s parents argued that his IEP had been assessed under the wrong standard. In their view, instead of asking whether the IEP was calculated to provide “some” benefit, the administrative law judge and the district court should have required that it provide a “meaningful” benefit. The Tenth Circuit disagreed. It concluded that it was bound by the Supreme Court’s decision in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), which held that an IEP need offer only “some educational benefit.”

The Obama Administration has weighed in on the case in favor of the petitioner (Endrew) as have numerous disability rights organizations and a few education organizations Can you list an example? The Administration posits that if the current standard, “some educational benefit,” were to remain in place then school districts would be free to offer students with disabilities services for only a few months of the year to demonstrate they are making some progress educationally. This is a ridiculous example and one that shows how little the government itself understands about IDEA and its requirements to provide services for students continually (unless they no longer qualify for the service or special education). It also shows how little faith this Administration has in special education professionals and school leaders’ personal desire to ensure students with disabilities achieve academically regardless of a statutory or judicial standard for educational benefit.

Aside from the fact that the Court has no basis for creating a new standard, which we detail in our brief substantially, there is no ‘workable’ standard beyond the current one, which is “some educational benefit.” The Government and the Petitioner would require courts to evaluate the level of education an IEP is designed to provide—either to assess whether it would be substantially equivalent to that afforded other children or to assess whether it would reflect significant progress for that particular child. A court cannot appropriately evaluate the level of education an IEP would provide without judging the quality of educational methods and services: How good are the teachers? How effective are their methods? What difference would smaller class sizes make? Would limited dollars be better spent elsewhere? This kind of second-guessing by courts and the level of scrutiny required in every due process case would lead to outrageous hearing lengths as well as completely subjective decisions by individuals who are not education experts by any stretch.

What does that mean practically speaking? Districts will be in a constant cycle of evaluating and re-evaluating students to ensure they are making “enough” progress, an increased focus on IDEA paperwork and compliance, and greater likelihoods of settlements with parents to avoid even more costly and lengthy litigation. The financial, practical and administrative implications for districts if the Court rules in favor of the petitioner cannot be understated. AASA will attend the hearing on January 11 and will share any relevant insights or summaries on the Leading Edge blog. The Court is expected to rule in late Spring. We will keep you informed of the decision. 

January 5, 2017

(ED FUNDING) Permanent link

115th Congress and Funding: Quick Update

As part of our advocacy effort, AASA belongs to the Children's Budget Coalition. Here are three items of note from the first meeting of 2017:   

    • HOW IT IMPACTS APPROPRIATIONS: The House Rules for the 115th Congress, which were adopted on Tuesday, contain several provisions that relate to budget and appropriations matters.  Check out this section by section summary of all the Rules and attached are the summaries of the relevant appropriations and budget sections.  
    • HOLMAN RULE OVERVIEW: The new House Rules reinstate the “Holman Rule,” a 19th century House rule that was rescinded in 1983.  Under the rule, amendments to appropriations bills being considered on the House floor can cut the number or salaries of federal employees covered by the bills provided they are paid with Treasury Department funds.  The rule will be reinstated only for the first session of the 115th Congress. The purpose of this provision is to see if the reinstatement of the Holman rule will provide Members with additional tools to reduce spending during consideration. The reinstatement of the rule is part of a “far broader strategy” in Congress to change the nature of the federal workforce, including the way federal workers are hired and fired.  There are conservatives in the House who want to cut the number of government employees and roll back salaries on an agency-by-agency, program-by-program basis.  The rule will allow them to introduce amendments to this end.  Before this rule change, an agency’s budget could be cut broadly, but a specific program, employee or groups of employees could not be targeted because of civil service protections.  Rep. Steny H. Hoyer (D-Md.) stated that he's “deeply concerned” that the rule “would make it easier for the Majority to circumvent the current legislative process to fire or cut the pay of federal employees.”  The rule could allow “far-reaching changes to the nonpartisan civil service on the basis of ideology,” Hoyer said. Read this related article from the Washington Post.
  • FY 17 BUDGET RECONCILIATION BILL:  PROCESS, TIMELINE & UPDATE The bills reconciliation instructions direct four relevant committees (Senate Finance & HELP and House Ways & Means and Energy & Commerce) to draft legislation by January 27th which would reduce the deficit by at least $1 billion over ten years.  The instructions do not specify the changes to be made, but they are universally understood to involve repeal of substantial parts of the ACA.  Once both the Senate and House pass the budget resolution, the House Ways & Means and Energy & Commerce will hold markups and produce the actual legislation to repeal the ACA.   They will then submit their legislation to the House Budget Committee to be combined into a single package for consideration by the full House.  Note that the Senate Finance & HELP would normally draft their own legislation, but it’s widely expected that they will consider whatever reconciliation legislation passes the House.  Congress is aiming to have the legislation to the President’s desk by the end of February. The resolution overcame its first procedural hurdle in the Senate yesterday even though lawmakers made clear after a morning meeting with Vice President-elect Mike Pence that any replacement plan is at least months away.  The Senate voted 51-48 yesterday afternoon to proceed to the resolution, S. Con. Res. 3, which would set up a filibuster-proof process, ensuring the chamber’s consideration of legislation repealing parts of Obamacare and replacing it, either as one bill or as separate measures.
  • FY 18 PRESIDENT’S BUDGET:  OUTLINE IN FEBRUARY & FULL BUDGET COMING IN MAY: President-elect Donald Trump plans to submit a fiscal 2018 budget request to Congress but it may not come until later in the spring, lawmakers and staff said Wednesday.  While it is the usual practice of presidents to submit a budget for the fiscal year beginning after their election, there was a lack of certainty about whether Trump would and even some speculation he would skip it. Rep. Tom Cole, R-Okla., said it's likely the president’s budget request would not be submitted to Congress until May, months after the statutory deadline of the first Monday in February.  Separately, a GOP aide said he has heard Trump may submit an outline of the budget in late February.