Academic journal article Journal of Law and Education

Counterpoint Introduction- Flagging Efforts to Win under the Banner of Endrew F

Academic journal article Journal of Law and Education

Counterpoint Introduction- Flagging Efforts to Win under the Banner of Endrew F

Article excerpt

In the Fall 2017 issue of the Journal,1 Terry Seligmann, a professor of legal writing at Drexel University's School of Law, used the sports metaphor of football, with due care,2 to analyze the Supreme Court's decision in Endrew F. v. Douglas County School District RE-1.3 Her tempered conclusion is that the Endrew F. Court's "clarification of the rules . . . may decrease future penalty situations."4 More specifically, she indirectly narrowed the cautious prediction of penalty flags to the minority of districts5 and courts in two particular fields of play: (1) the jurisdictions, including the Tenth Circuit,6 that had previously adopted "some . . . benefit" as the substantive standard for free appropriate public education (FAPE);7 and (2) the jurisdictions, also inferably characterized as the minority,8 that have exercised judicial deference to school authorities without meaningful rigor.9 Her reasons for these two respective limitations are: (1) the Endrew F. Court's clarification that the applicable substantive standard is "markedly more demanding than the 'merely more than de minimis' standard of the Tenth Circuit;"10 and (2) the Court's concluding dicta that "a reviewing court may fairly expect [school] authorities to be able to offer a cogent and responsive explanation for their decisions ... ."1!

Professor Seligmann's overall analysis is perhaps as significant as her limited predictions. More specifically, she observed that the Endrew F. Court's choice of refining its prior decision in Board of Education v. Rowley,12 rather than revising it into a new standard, not only duly deferred to the lack of intervening congressional change to substantive FAPE but also deftly avoided a clear notice challenge under the Spending Clause to judicial activism. …

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