SCOTUS Struggles With Duty Owed to Disabled Students

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By Kimberly Strawbridge Robinson

The U.S. Supreme Court struggled to articulate the duty schools owe to disabled students during oral argument Jan. 11 ( Endrew F. v. Douglas Cty. Sch. Dist. RE-1 , U.S., No. 15-827, argued 1/11/17 ).

The Individuals with Disabilities Education Act, at 20 U.S.C. §1400 et seq., requires that schools that accept federal money for educating disabled students provide those students with a “free appropriate public education.”

What does that mean in practice?

In 1982, the Supreme Court said the act’s FAPE requirement is satisfied when the state provides some educational benefits, in Bd. of Education of the Hendrick Hudson Central Sch. Dist., Westchester County v. Rowley , 458 U.S. 176 (1982).

That means educational benefits must “merely be more than de minimis,” the U.S. Court of Appeals for the Tenth Circuit said in this case.

It therefore turned away an autistic student’s parents who were seeking tuition reimbursement after sending their son to a private school specializing in educating autistic children.

That merely-more-than-de-minimis standard is followed by at least ten federal appellate courts, but most of the justices on the Supreme Court seemed to think that it didn’t go far enough.

Lower courts may need a “kick,” Justice Samuel A. Alito Jr. suggested.

The court, though, wrestled with the exact words to deliver that kick. In particular, they seemed wary of creating a standard that would invite litigation.

The concern is that we are diverting “money that ought to go to the children and spending it on lawsuits and lawyers,” Justice Stephen G. Breyer said.

Some Benefit

Neal Katyal, of Hogan Lovells US LLP, Washington, who argued for the school district, urged the justices not to tinker with the current standard.

The lower courts are mostly in agreement that IDEA’s FAPE requirement only requires that schools provide more than de minimis educational benefits, Katyal said.

That’s the way the lower courts have been interpreting the FAPE requirement for 34 years—since the last time the court addressed the requirement in Rowley, he said.

Those lower courts read Rowley to require some benefit, Chief Justice John G. Roberts Jr. said, emphasizing the “some.” But the parents here read Rowley as requiring some benefit, Roberts said to laughter.

We’re going to need “musical notation” just to write this opinion, Alito later quipped.

Roberts said the parents seemed to have the better argument.

The rest of the statute indicates that the educational benefits must allow the disabled student to keep up with their non-disabled peers, Roberts said. That’s a higher bar than the merely-more-than-de-minimis standard, he said.

Word Blizzard

But the court had a hard time pinning down what that “more” was.

We’re looking for the exact words that won’t confuse lower courts, Justice Sonia Sotomayor said.

That quest both confused and “frustrat[ed]” Alito.

Everyone is looking for just the right word that captures the essence of the school’s duty, he said.

And while there’s been a “blizzard of words” suggested to encapsulate that duty—meaningful, significant, more than de minimis—it’s not clear that any of them actually mean anything different in practice, he said.

How’s That Different?

It didn’t help that the parents and the federal government—arguing as amicus in support of the parents—couldn’t come up with a single standard to suggest to the justices.

They’ve put forth something like nine different standards during the oral argument alone, Katyal said.

For example, Jeffrey L. Fisher, of Stanford Law School, Stanford, Calif., who represented the parents, said schools must provide disabled students with “substantially equal educational opportunities” as their non-disabled peers.

The government, though, had another formulation.

Schools must provide services that are reasonably calculated to allow disabled students to make “significant educational progress” in light of the child’s circumstances, Irv Gornstein, of the Department of Justice, Washington, said.

How is that any different from what the parents want? Justice Ruth Bader Ginsburg asked, seemingly genuinely curious about the answer.

Their formulation requires the highest level of educational benefits, Gornstein said. But IDEA only requires “significant” educational benefits, he said.

It’s somewhere in between de minimis benefits and the highest educational benefits, Gornstein said.

The court has a lot of adjectives to work with, Roberts said. But it’s not clear any of them will actually provide concrete guidance to the lower courts, he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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