Most of the justices appeared to think the “some” benefit standard was less than what Congress envisioned. But they also seemed to be struggling to come up with language for a higher standard that would be grounded in the law and clear enough to be meaningful and enforceable, but flexible enough to apply to children with widely varying levels and types of disabilities.
During the hour-long oral argument, they grappled with the differences between various levels of educational benefit: “some,” “barely more than de minimis,” “significant,” “meaningful,” “appropriate in light of the child’s circumstances.”
“What is frustrating about this case and this statute,” said Justice Samuel A. Alito Jr., “is we have a blizzard of words.”
The plaintiff in the case, Endrew F. v. Douglas County School District, is an autistic boy whose parents pulled him out of public school after his behavior deteriorated dramatically and he made what they said was almost no academic progress. They placed their son in private school, where he made rapid progress, and they sought reimbursement for tuition. They are entitled to that reimbursement if they can prove that the public school failed to provide a “free appropriate public education” under federal law.
The child and his parents lost their case before the U.S. Court of Appeals for the 10th Circuit, which is among the majority of Circuit Courts of Appeals that subscribe to the “some” benefit standard. A minority of circuit courts have set higher expectations for schools, and the Supreme Court now has a chance to set a uniform standard for the nation.
Jeffrey Fisher, a Stanford University law professor representing the family, suggested several different formulations for a new and higher standard, including that schools be required to provide services that are “reasonably calculated to provide substantially equal educational opportunities.” Irv Gornstein, a lawyer for the Obama administration, supported the plaintiff’s position that the “some educational benefit” bar is too low and suggested wording that the services be “reasonably calculated to make progress that is appropriate in light of the child’s circumstances.”
Neal K. Katyal, representing the Colorado school district, argued that the “some” benefit standard is what federal law requires. He said that standard has worked well, and that courts don’t know enough about educational approaches to determine whether schools are meeting a more ambiguous standard of “significant” progress. Revising the standard that currently applies to most of the country now is unfair to states that have accepted federal funding for children with disabilities based on their understanding of current law, he said.
“To change it … is to invite massive amounts of litigation,” Katyal said.
Read the full transcript of Wednesday’s oral argument: