I just reviewed the transcript of the oral argument before the U.S. Supreme Court in Endrew v. Douglas County School District, which involves figuring out just how far a school district needs to go in order to provide a free appropriate public education (FAPE), under IDEA. Here is what we know from that oral argument or I should say what we can reasonably divine:

  1. IDEA is more than just a procedural set up, rather it contains real rights capable of being enforced. That is, IDEA is geared towards a particular substantive result.
  2. The standard will not be equal opportunity to succeed.
  3. The standard will not be “de minimus.”
  4. The standard will not be, “something more than de minimis.”
  5. The standard will not be, “more than merely de minimis.” With respect to this particular standard, the justices were keenly interested as to where this phrase originated from and they did not get a specific answer.
  6. The standard will not be “some benefit,” because that terminology could mean either not much or it could mean something more significant.
  7. Anybody’s guess as to what the standard will be. Some possibilities include: A) “demands a level of educational services designed to allow the child to progress from grade to grade in the general curriculum;” B) “an IEP should be tailored to achieve in a general educational curriculum at grade level for most kids;” C) “significant educational progress in light of the child’s circumstances;” D) “significant progress towards grade-level standards;” D) “meaningful progress towards grade level standards;” F) “significant and appropriate progress towards grade level standards;” G) “reasonably calculated to provide significant and appropriate progress towards grade level standards;” H) “significant progress or appropriate progress towards grade level in light of the child’s circumstances;” I) “enough benefit to keep track with grade progress;” J) “and the whole package has got to be helpful enough to allow the student to keep up with his peers.”
  8. Regardless of standard chosen (a betting person, which is extraordinarily dangerous when it comes to the U.S. Supreme Court, might bet on G), wide agreement among the justices existed that the lower courts need a kick so that IDEA actually means something.
  9. Plaintiff’s counsel said that in order to show that an IEP is messed up, a parent has to show that the IEP the school adopted was one that no reasonable educator would have adopted. I am not a special education attorney, but that seems to be an insanely high standard.
  10. The federal government funds 15% of special education services.

In other news:

  1. The U.S. Access Board issued final rules pertaining to §508 of the Rehabilitation Act. The two things to note there are that WCAG 2.0 is the standard for §508 compliance and that an equivalent facilitation provision exists as well. The U.S. Access Board also issued a final rule on accessibility of medical equipment. Does this mean WCAG 2.0 will be the standard for title II and title III website compliance? Since it is uncertain as to where the incoming administration stands with respect to disability inclusion, it is hard to say. Certainly, as a preventive law measure WCAG 2.0 should be strongly considered.
  2. The Department of Justice last week issued proposed regulations implementing §504 of the Rehabilitation Act. The proposed regulations are actually quite detailed and perhaps worth a blog entry of its own. Suffice to say at this point, what the proposed regulations do is basically take DOJ’s final regulations on titles II of the ADA and apply them to the Rehabilitation Act. Doing that mean that the Department of Justice goes further than the case law in some areas. For example, the Rehabilitation Act deals with a much lower standard for effective communication than does the ADA. In the proposed regulations, DOJ adopts title II effective communication standards, which are stronger than title III effective communication standards. Again, it is much more complicated than that, but that is the general idea. Keep in mind, these are proposed regulations and as such, they may or may not come into existence at all. Also, if they do, they could be in substantially different form than what is proposed here.

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