Academic journal article Journal of Law and Education

Flags on the Play: The Supreme Court Takes the Field to Enforce the Rights of Students with Disabilities

Academic journal article Journal of Law and Education

Flags on the Play: The Supreme Court Takes the Field to Enforce the Rights of Students with Disabilities

Article excerpt


In two decisions issued during its 2016-17 term, Endrew F. v. Douglas County School District1 and Fry v. Napoleon Community Schools,2 the Supreme Court interpreted the provisions of the Individuals with Disabilities Education Act (IDEA)3 in areas that had for decades been left to the lower courts to referee. In both cases, the Court called the dispute for parents and children. In both cases, it was called upon to interpret aspects of the statute that were difficult to resolve from the IDEA'S specific language and required drawing upon the entire statutory scheme, prior judicial interpretation, and signals from Congress, along with some creativity and willingness to step in and make sure that school districts and reviewing courts are playing by the rules.

The Court's Endrew F. decision is the more significant of the two for the future because it tackles the nature of the obligation imposed by the IDEA to provide a free appropriate public education (FAPE) to a child with disabilities. The Court's only prior interpretation of that obligation was in the Rowley4 decision of 1982. The reference in Rowley to the standard as requiring that FAPE provide "some educational benefit"5 spawned varying approaches to the judicial review of IDEA disputes and calls by some scholars to set a higher and more demanding bar. While Endrew F. does not go the distance that those scholars and parent advocates were seeking, it makes it clear that to satisfy FAPE for the individual child with the capacity to do so, the services offered must permit ground to be gained. And importantly, the case shifts some burden onto school officials to support the appropriateness of a proposed educational plan if it is to receive deference upon judicial review.

This essay examines two aspects of the Endrew F. decision, although similar observations can be made as to the Fry opinion. First, it represents a statutory interpretive approach that is inclusive of a variety of kinds of reasoning. These include mining the entire statutory scheme to provide meaning where language is less than explicit, examining the judicial history of interpretation and congressional responses to it, and applying what might be termed "common sense" to the process. Since the IDEA is a statute enacted under the Spending Clause powers of the Constitution, the decisions also suggest a continued willingness to bind states to obligations under such programs even when the statutory language is less than crystal clear. Given that the reasoning in both cases was unanimously supported and that Chief Justice Roberts authored the Endrew F. decision, the opinions suggest a continued willingness by the Court to work at discerning and carrying out the purposes of congressional actions, as previously seen in the Affordable Care Act cases, a judicial approach that preserves Congressional initiatives against efforts to constrain the scope of legislative enactments.

Second, the interpretation adopted by the Court in Endrew F. reflects a commitment not only to the procedural process elaborated upon in the IDEA but also to assuring a robust judicial review of the guarantees of substance it makes to children with disabilities. It makes explicit what lower courts have been implicitly applying in assessing whether FAPE is being denied-deference to school authorities is not abdication, and evidence, not just assertions, is needed to justify deference by courts charged with review. The Court's language helps re-level the playing field for parents and students in an area requiring expertise to traverse.6 Both decisions serve notice to school districts to clean up their acts or face further penalties.


The application of the IDEA'S substantive requirements of appropriate services to children with disabilities whose individual circumstances vary widely, as well as the role of reviewing courts in adjudicating disputes over the provision of FAPE, played out at the local school district, state administrative, and lower federal court levels after the Court's initial reading on these issues in Rowley. …

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