Counterpoint- Flags on the Play?: We're on the Same Team!

By Hitch, Rachel B. | Journal of Law and Education, Winter 2019 | Go to article overview

Counterpoint- Flags on the Play?: We're on the Same Team!


Hitch, Rachel B., Journal of Law and Education


In Flags on the Play: The Supreme Court Takes the Field to Enforce the Rights of Students with Disabilities,1 Terry Jean Seligmann argued several points with which I respectfully disagree. First, Seligmann argued that in Endrew F.,2 the Court "called the dispute for the parents and children."3 Second, Seligmann lauded the Court for its in-depth attempts to construe the unclear Free Appropriate Public Education (FAPE) definition consistent with Congress's intent to guarantee quality special education. Third, Seligmann, in addressing the significance of the Endrew F. decision moving forward, opined that school districts need to "clean up their acts or face further penalties."4 Aside from reflecting a disconnect from the actual practice of special education law,5 Seligmann's approach and tone exemplify the problem with the discourse on special education today. The truth is, we're all on the same team.

I. A WIN: REALLY? FOR WHOM?

I am surprised by Seligmann (and others') characterization of Endrew F. as a "win" for students and their parents. To understand why, let us take a closer look.

Procedurally, the Supreme Court opinion was not a win for the parents and student in Endrew F. The Supreme Court's decision was to remand the case.6 The Court did not declare as winners Endrew F. or his parents. At best, the Court decided that the Tenth Circuit had applied the wrong interpretation of a rule.

Substantively, the case was not a win for the parents or student in Endrew F. The parents in Endrew F. advocated for a definition of FAPE that would require school systems to provide children with disabilities "opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded to children without disabilities."7 The Supreme Court noted that this is "strikingly similar"8 to the standard that the Court had rejected in Board of Education v. Rowley.9 The Endrew F. Court noted that "despite several intervening amendments to the IDEA,"10 Congress had not materially changed the statutory definition of FAPE following the decision in Rowley,11 and the Court declined to "interpret the FAPE provision in a manner so plainly at odds with the Court's analysis in that case."12

A practical review of the circumstances also leads to the conclusion that Endrew F. was certainly not a win for the student or his parents. The settlement amount paid to the parents in the Endrew F. case reportedly was $1.3 million.13 Given that the tuition for Endrew F.'s private school was approximately $70,000 per year,14 presumably the bulk of the $1.3 million was for attorneys' fees. For all the attorneys' fees, the parents obtained a loss at the administrative level, a loss at the Federal District Court, a loss at the Tenth Circuit, a rejection of their proposed FAPE standard, and a remand ("do over") from the United States Supreme Court. In addition, the Endrew F. decision was handed down in March of 2017 on an IEP that had been developed for Endrew F. in April of 2010. The dispute surrounding Endrew F.'s fifth grade IEP was still unresolved when he entered what, by my calculations, was his twelfth-grade year. It seems Seligmann's declaration of victory needs clarification; Endrew F. was a Pyrrhic victory, at best, and would more accurately be described as a devastating loss of money, time, and emotional resources for all involved.

Perhaps the "win" referred to by Seligmann is the supposed greater good of more wins for parents due to the "new" Endrew F. standard? However, an article in the April 27, 2018 edition of Education Week tends to refute any claim of a win founded on more favorable outcomes to parents in special education litigation after Endrew F. The article cites Professor Perry Zirkel, who has been tracking the impact of Endrew F. The article reports that as of April 2018 (approximately thirteen months after the Supreme Court's Endrew F. decision), "fortynine cases were decided by a judge who cited Endrew F. …

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