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Wednesday, May 2, 2018

Endrew F. Decisiion -- No Immediate Miracles

In The Politics of Autism, I write about IEPs and FAPE. A year ago, the Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.

Christina Samuels at Education Week:
But school districts are not losing cases because of the new Endrew F. standard, said Perry Zirkel, a professor emeritus of education and law at Lehigh University, who has been tracking the impact of the case. Forty-nine cases were decided by a judge who cited Endrew F. and applied its standard that a special education program must be "reasonably calculated to enable a child to make progress in light of the child's circumstances." Of those, 44 saw no change in the decision, and in 37 of those cases, the decision was for the school district. In two cases, the case was sent back for further evaluation.
In three cases, the decision was reversed. But on one occasion, a decision that had been in favor of the parents was reversed, with the district prevailing under the Endrew F.standard.
In several situations, judges said that local practices already met the standard outlined by the Endrew F. case, Zirkel noted.
"Anyway you slice it, it hasn't changed the trends," he said. "The same folks are still winning—the districts."
Those findings match what Catherine Merino Reisman, a lawyer who represents parents in special needs cases and works out of Haddonfield, N.J., has seen.
"It's only been a year, and it's going to take some time for the lower courts to apply Endrew," she said. Reisman said that judges in the federal judicial circuit where she works say that its "meaningful benefit" standard is equivalent to that laid out by the high court. Reisman thinks that the Supreme Court case offers more specific guidance than just "meaningful benefit."
What I wrote in The Politics of Autism still applies:
 The rights approach puts a great burden on parents to serve as advocates for their children.  Highly-educated, affluent parents are in a better position to do so than the poor and uneducated:  for one thing, their social networks are more likely to include lawyers and expert witnesses.[i] But even the best-equipped parents are at a disadvantage against school district administrators and other bureaucrats. Like their representatives in Washington and state capitals, they are “repeat players.”  Their experience and expertise give them an edge that the parents’ special-education lawyers can only partially overcome.

[i] Eloise Pasachof, “Special Education, Poverty, And The Limits Of Private Enforcement,” Notre Dame Law Review, 86, no. 4 (2011): 1413-1493.  Online: