by Julie Pelegrin

Since 1975, the federal “Individuals with Disabilities Education Act” (IDEA) has required states to provide a “free appropriate public education,” or FAPE, to each child with a disability. People are reasonably clear—though not completely—on what “free,” “public,” and “education” mean. But the courts have struggled with what “appropriate” means. Last week, the U.S. Supreme Court, in deciding the case of Endrew F. v. Douglas Cty. School Dist. RE-1, handed down the latest interpretation: The educational services and supports a child receives must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

So, how did the Court arrive at this particular standard? And what difference is it likely to make for public schools and children with disabilities going forward?

The last time the U.S. Supreme Court considered what Congress meant when it required a FAPE for each child with a disability was in 1982. The case of Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley centered on first grader Amy Rowley, who had a hearing impairment. Her individualized education plan (IEP) called for her to be fully integrated into the regular classroom and to spend time with a special tutor and a speech therapist. Amy’s teacher used a wireless device that transmitted to an FM hearing aid that Amy wore. Amy made excellent academic progress under these arrangements, better than many of the children who were not hearing impaired, but she didn’t fully understand everything going on in the classroom. Her parents sued the state claiming that her IEP should require the school to provide a sign language interpreter, giving Amy educational opportunities that were equal to those enjoyed by her non-hearing-impaired peers.

That was the first case in which the Court had to interpret the level of education that children with disabilities are entitled to under IDEA. The Court rejected Amy’s parents’ argument that she was entitled to services that would give her opportunities equal to those of children who did not have a disability. But it also rejected the state’s argument that a FAPE was merely aspirational and that IDEA did not create any substantive right to an education.

Instead, the Court held that IDEA guarantees a substantively adequate program of education to all children with disabilities. This guarantee is satisfied if a student’s IEP requires educational services and supports that “are reasonably calculated to enable the child to receive educational benefits.” In the case of a child who is fully integrated into a regular classroom, like Amy, “educational benefits” means the child receives passing grades and is advancing from grade level to grade level. Since Amy was earning good grades and moving from grade to grade, the Court found that she was receiving a FAPE and her IEP was sufficient; she was not entitled to a sign language interpreter.

However, the Court refused to establish a single test for determining the adequacy of education benefits for all children with disabilities. The severity and types of disabilities cover such a broad spectrum that adequacy could vary widely from child to child. In applying the Rowley standard over the last 35 years, the courts have generally said that an educational benefit is adequate if it confers “some educational benefit” on the child.

This standard led Endrew F. and his parents to the U.S. Supreme Court. Endrew—referred to as Drew in the case—was diagnosed with autism when he was two years old. His parents enrolled him in Douglas County Schools (DCS), where he received an IEP. The educational services and supports that he received under the IEP enabled him to make some progress. He progressed from kindergarten to fourth grade but was still exhibiting disruptive behaviors that inhibited his ability to access learning in the classroom. Drew’s IEP had not changed significantly over the years, and in April 2010 when his parents received his proposed IEP for fifth grade, they decided to pull him out of DCS and enroll him in a private school for children with autism—Firefly Autism House.

At Firefly, Drew received a new behavioral intervention plan and higher academic goals, and Drew made good progress for six months. When DCS suggested a new IEP to Drew’s parents in November 2010, they decided it looked too much like the old IEP and sued the school district. They claimed DCS was not providing a FAPE for Drew and therefore, under IDEA, they were entitled to reimbursement for the cost of tuition at Firefly.

The administrative law judge, the federal district court judge, and the Tenth Circuit Court of Appeals judges all applied the Rowley standard and sided with DCS. While Drew may not have made a lot of progress academically or behaviorally at DCS, he had made some progress. The Tenth Circuit specifically found that the law required only that he make “merely more than de minimis” progress— which means more than a negligible amount of progress. Under this standard, DCS was meeting the requirements of IDEA with Drew’s IEP, and Drew and his parents were not entitled to more services.

The U.S. Supreme Court disagreed—unanimously. Specifically, they disagreed with the Tenth Circuit’s interpretation of the Rowley case. The Court reminded the Tenth Circuit that in Rowley they refused to set a standard for what constitutes educational benefits. A child’s IEP must focus on the individual child and his or her unique needs and be designed to enable the child to make educational progress. A child with disabilities is still not entitled to services that will guarantee to the child educational opportunities that are equal to those of his or her peers without disabilities. But the child’s educational program must be “appropriately ambitious in light of his circumstances” and afford “every child…the chance to meet challenging objectives.”

So that’s the new standard: A child’s IEP must be reasonably designed to enable the child to make progress “appropriate in light of the child’s circumstances.” The Court recognized that this is a standard, not a formula, but it is “markedly more demanding” than the “merely more than de minimis” progress standard that the Tenth Circuit applied. As a standard it is still open to interpretation, and the courts are supposed to give deference to school district experts in deciding what level of progress is appropriate for a child.

It remains to be seen whether Drew’s parents will be reimbursed for the tuition they paid to Firefly for their son’s education. The Tenth Circuit will have to determine whether the services in the IEP provided by DCS would have enabled Drew to make progress that was appropriate to his circumstances. While Drew made significant progress with certain services at Firefly, the court could conclude that the services offered by DCS would have been sufficient for “appropriate” progress.

And it remains to be seen whether the new standard will result in real changes in the services that schools provide to children with disabilities. The Court’s decision does not answer the question of whether a school must provide the highest, most expensive services to enable a student to make the most progress or whether less expensive services that result in good progress are sufficient. There is a great deal of room to debate how much progress is appropriate in light of a child’s circumstances— almost as much room as existed when deciding whether a child received an educational benefit.

by Brita Darling

Will the decision in a dispute concerning rubber playground surfaces in Missouri affect where students go to school in Douglas County, Colorado?

The United States Supreme Court will hear oral arguments in Trinity Lutheran Church of Columbia Inc., v. Pauley, No. 15-577, on April 19, 2017. While the Supreme Court has declined to hear many religion cases in the recent past, it agreed to hear this case before Justice Scalia’s death.

Like many churches, Trinity Lutheran runs a preschool on church grounds and, like any good preschool, it has a playground. After school hours and on weekends, children from the surrounding community use the playground. In 2012, Trinity Lutheran learned about the State of Missouri Playground Scrap Tire Surface Material Grant Program—we’ll just call it the grant program—which provides grants to certain nonprofit organizations to purchase rubber pour-in-place playground surfaces made from recycled tires. The purpose of the grant program is to make playgrounds safer, while at the same time reducing the amount of used tires in landfills and illegal dump sites in Missouri. A fee on new tires funds the program.

Hoping to replace its playground’s pea gravel surface, Trinity Lutheran submitted a grant application to the Missouri Department of Natural Resources (DNR) and was identified as a strong candidate for a grant based upon neutral grant program criteria. However, instead of receiving a grant, Trinity Lutheran received a letter from the DNR informing it that the department was unable to provide direct financial assistance to churches pursuant to Article I, Section 7 of the Missouri Constitution. Missouri’s Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion… .” If this language prohibiting direct or indirect aid to churches sounds familiar, it should. Colorado’s Constitution includes nearly identical language.[1]  Both Missouri’s and Colorado’s constitutional provisions are referred to as “Blaine Amendments,” after U.S. Representative James Blaine, who proposed a failed amendment to the U.S. Constitution in 1875 that included similar language. Most states that entered the Union after 1850 have Blaine Amendment provisions in their state constitutions. Many historians believe that the purpose of the Blaine Amendments was to prohibit funding to sectarian schools, reflecting the anti-Catholic sentiment of the times. These provisions are also referred to as “super-Establishment Clause” provisions because courts have interpreted them to permit stronger prohibitions on government aid to churches than are required by the federal Establishment Clause in the First Amendment to the U.S. Constitution, which prohibits Congress from making a law concerning the establishment of a religion.

Some people argue, however, that application of the Blaine Amendments in some cases actually violates another clause of the First Amendment of the U.S. Constitution—the Free Exercise clause—which prohibits any laws prohibiting the free exercise of religion.

Trinity Lutheran sued in the U.S. District Court in Missouri, claiming that the DNR’s decision to deny a program grant to the church preschool violated the Free Exercise, Free Speech, Equal Protection, and Establishment Clauses of the First and Fourteenth Amendments to the U. S. Constitution, as well as violating Article I, Section 7 of the Missouri Constitution.  Trinity Lutheran’s lawsuit does not seek a ruling that Missouri’s Blaine Amendment is unconstitutional on its face, but only as applied to the church to prohibit its participation in the grant program.

The district court dismissed Trinity Lutheran’s complaint in its entirety, reasoning that the grant program involved a direct payment to a sectarian institution that raised “antiestablishment” concerns. The Eighth Circuit Court of Appeals agreed with the district court, furthering a split among the federal and state courts that have dealt with similar cases, with the First and Fifth Circuits and the Colorado Supreme Court on one side and the Seventh and Tenth Circuits on the other. The split involves whether state establishment clause provisions, like Blaine Amendments, can justify the exclusion of religious groups from generally available government programs.

The resolution of the split among the courts seems to hinge upon the correct interpretation of the United States Supreme Court’s decision in Locke v. Davey, 540 U.S. 712 (2004). In Locke, the Supreme Court held that the State of Washington could deny an otherwise neutral scholarship to a student who was pursuing a devotional theology degree. Critical to the Supreme Court’s holding was that the scholarship would be used to fund the devotional training of clergy, an area where the state’s antiestablishment concerns are historically high. The Supreme Court held that denying funding for theology degrees fell within the “play in the joints” between what the Establishment Clause allows and what the Free Exercise Clause requires.

So, how much “play in the joints” is there?  The question the Supreme Court has agreed to resolve in Trinity Lutheran is “whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.” Unlike the facts in Locke, where the state refused to pay to train clergy, in this case, no one can argue that providing safe playground surfaces promotes any religious purpose whatsoever. Further, Missouri’s intention to improve child safety and reduce waste tires in landfills is fully realized by awarding a grant to Trinity Lutheran in addition to nonreligious preschools. Trinity Lutheran argues that while Locke involved the historical establishment clause concern of the state funding the training of clergy, Locke does not permit the categorical exclusion of religious groups from generally available secular benefits, like the safer playground surfaces at issue here, or other secular services, such as fire or police protection.

So what does this Missouri playground case have to do with where children attend school in Douglas County, Colorado? We’ll see. In 2015, the Colorado Supreme Court decided Taxpayers for Public Education v. Douglas County School District, 2015 CO 50. As explained in a previous LegiSource article, the court held that the Douglas County School District’s Choice Scholarship Program could not award scholarships directly to students who then enroll in private religious schools. The Douglas County School District has filed for writ of certiorari to the United States Supreme Court[2] and, although briefing on the writ concluded at the beginning of this year, the Supreme Court has not yet decided whether to hear the case. Colorado’s Blaine Amendment and the correct interpretation of Locke are pivotal issues in the Colorado case, however, and commentators believe that the Supreme Court could use Trinity Lutheran as its vehicle to announce a decision that will have a conclusive effect on the Colorado case, as well. To that end, Douglas County, the State of Colorado, and many others interested in the Douglas County decision, have filed amicus briefs to ensure that its arguments are before the Supreme Court during its deliberations in Trinity Lutheran.

The Trinity Lutheran case is scheduled for oral argument before the Supreme Court on April 19. Court watchers are waiting to see if Supreme Court nominee, Neil Gorsuch, is confirmed in time for the April sitting. If not, this case could end on a 4-4 tie vote, which would leave standing the decision of the Eighth Circuit Court of Appeals.

[1] Article IX, Section 7. Aid to private schools, churches, sectarian purpose, forbidden.  Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose. [Emphases added]

[2] Douglas Cnty. School Dist. v. Taxpayers for Public Education, No. 15-777 (Cert. filed Oct. 28, 2015).