Tuesday, January 17, 2017

The Little Red Riding Hood Solution

The Little Red Riding Hood Solution

In 1975, The Education of All Handicapped Children Act (EHA) reborn as the Individuals with Disabilities Education Act (IDEA) promised all children with disabilities a free and appropriate public education (FAPE).   In 1982, a Supreme Court decision that later became known simply as Rowley, defined FAPE as requiring some educational benefit to the student in addition to being at no cost.  That definition has pretty much set the standard.
However, as with Little Red Riding Hood, how much of “some” is just right.  Parents have gone to court around our country to contest the benefit of the education their children are receiving.  The various circuit courts have used differing terminology.  The 3rd U.S. Circuit in Philadelphia in 1988 stated its view that Congress did not write a blank check to children and their families but neither did it intend only trivial benefit.   That Circuit stated it believed the Congress intended meaningful benefit.   In 2004, the 6th Circuit in Cincinnati sort of agreed by stating that it believed the statute provided a higher standard than the provision of “some” or “any” educational benefit.  By 2011, it seems the winds were shifting slightly.  The 8th Circuit was willing to accept a program that provided more than “slight” or “de Minimis academic progress.  The opinion suggests that anything above de Minimis would be okay.   Most recently in 2015, the 4th Circuit in Richmond (Maryland is under the 4th Circuit) determined that children receiving special education services must secure some educational benefit that is more than minimal or trivial.
Drew was in the 4th grade when this case started in Colorado.   He is now 17.   Drew is a young man on the autism spectrum.   When he was in the 4th grade he received special education services.  His behavior and academic achievement deteriorated.   His parents said that the 5th grade program offered was just more of the same programming that had not worked.   They withdrew him and placed him in a private school and thus began the family odyssey through the court system.  Drew’s mom says she was advised at the beginning of the journey not to begin unless she was ready to go all the way to the Supreme Court.  She was ready, but never expected the journey to go there. 
The family’s position is that FAPE is not FAPE unless it offers “significant educational progress”.   School districts have argued they could never afford this standard- whatever it is.   Parents of plain kids have argued that this benefit is not offered to their kids.  However, IDEA already creates a special class of children known as children with disabilities who have more rights than plain kids.  Although the family has won some and lost some cases in this journey to the Supreme Court, they did gain a powerful ally, the Obama administration’s Justice Department when the Supreme Court heard oral arguments on January 11.   The school district has said “All the government can say for sure is that schools should ‘enable eligible children to make progress that is appropriate in light of their own particular needs and capabilities.’ But telling courts that an ‘appropriate’ education means a ‘significant’ one, which in turn means an ‘appropriate’ one, hardly helps them draw a principled line”.
School districts care about the kids they are trying to educate, but they are fenced in by available economic resources and the capabilities of their staff.   Parents love their children and fear for their children’s futures if the children are not appropriately educated. They are fenced in by those fears of the future.  What if enough is not enough?   Humans with disabilities want a future.  Their lives are constrained by the very disabilities that are getting them the special education.  They are fenced in by their thoughts of having no future.

One bowl of porridge is too cold, one is too hot.  The big question is will our children with disabilities get the bowl that is just right.

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