What constitutes an “appropriate” education?
he U.S. Supreme Court has agreed to hear a Colorado case that could do something remarkable: bring liberals and conservatives together on a civil rights issue.
The case, Endrew F. vs. Douglas County School District, concerns the federal statute that requires public school districts receiving federal funds for special education to provide an “appropriate” education to children with disabilities.
Pursuant to the same statute, when a public school district fails to provide an appropriate education to any given child, the school district must pay for that child to attend a private school that can succeed where the public school district failed.
The question the Supreme Court has agreed to decide is: Under this statute, what makes an education “appropriate”?
The lower federal courts basically agree that the test should turn on how much the student benefits. But the agreement ends there. Some federal courts, including those in Colorado, hold that any benefit whatsoever — anything “more than de minimis” — is enough to make an education appropriate. Other federal courts hold that an education must be “meaningful” in order to be appropriate.
Endrew F. is a student with autism who did not receive a meaningful education in the years he attended public school in Douglas County. His parents therefore moved him to a private school, where he did receive a meaningful education — quickly learning math, in particular, and overcoming behavioral problems.
Relying on the federal statute, Endrew’s parents asked the Douglas County School District to pay for Endrew’s private schooling. The district said no, arguing that Endrew had received an educational benefit that was “more than de minimis” during his years in public school, making his education “appropriate,” even if it was not meaningful.
The federal appellate court called it “a close case” even by the meager “more than de minimis” standard, but ruled in favor of the school district, holding that even a barely detectable educational benefit to Endrew rendered his education “appropriate” under federal law.
The absurdity of this proposition is what might just unite liberals and conservatives, even if they come to the same conclusion for different reasons.
Many liberals, for example, will think of this case as one in which the Supreme Court must intervene to vindicate a federal right granted to a vulnerable member of society. Many conservatives, meanwhile, will think of this case as one that demonstrates why families should be able to use public education funds to pay for private schools, especially when public schools come up short.
The very prospect of such an alliance, of course, might frighten both sides of the political spectrum, but maybe not. Let’s hope it can instead provide occasion to appreciate some fundamental building blocks of a well-reasoned consensus.
First, the federal statute at issue in Endrew’s case was originally passed, and then amended over the years, with robust bipartisan support. That’s a good start.
Second, while the statute at issue certainly constitutes a federal “mandate,” it is a funded mandate, not an unfunded one.
Third, this mandate does not require any particular outcomes, which is often what divides liberals and conservatives when it comes to mandates (federal, state or local) that relate to education. Even the courts applying the higher, “meaningful” standard have made clear that this mandate is about educational opportunity.
It seems at least possible, and maybe even likely, that liberals and conservatives alike can support a bipartisan, funded, opportunity mandate, especially when the other side is arguing that education is “appropriate” even when it is not “meaningful.”
But what if the Supreme Court decides that, under existing law, the Douglas County School District is right? That will be all the more reason for left and right to unite — in support of a legislative fix. Joseph C. Smith Jr. is 0n the advisory board of the Untapped Potential Project, a charitable organization pursuing taxexempt status as a 501(c)(3). He is a former deputy attorney general of Colorado.