U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

SCOTUS Tosses 10th's Special Education Standard

The Supreme Court unanimously rejected the Tenth Circuit's interpretation of the Individuals with Disabilities Education Act on Wednesday. That law requires schools to provide disabled students with a free and appropriate public education, or FAPE. But to meet that standard, the Tenth had ruled, schools must confer an educational benefit that is "merely more than de minimis." The law is "markedly more demanding" than that, the Supreme Court ruled this morning.

The timing was a bit uncomfortable for the Tenth's Judge Neil Gorsuch, Trump's Supreme Court nominee, who was undergoing questioning before the Senate as the Supreme Court decision was released.

Endrew, IDEA, and the Proper FAPE Standard

The Supreme Court case, Endrew F. v. Douglas County School District, arose after the Tenth Circuit rejected a lawsuit by parents of an autistic boy in Douglas County, Colorado. The child, Endrew, or Drew for short, had struggled during his fourth-grade year. When it came time to advance to the fifth grade, Drew's parents determined that he wasn't making sufficient progress and challenged his individualized education program, or IEP, the plan required by the IDEA in order to ensure access to FAPE.

The Tenth rejected the parents' arguments that the IEP was insufficient. Drew's parents alleged that the IEP was too similar to his past plans and failed to consider Drew's escalating behavioral problems. But, the Tenth explained, the standard the school was required to meet was low: it must show "merely more than de minimis" educational benefits, the court held, relying on a 1996 ruling by Supreme Court nominee Neil Gorsuch.

In contrast, the Sixth, Fifth, and Third require a "meaningful educational benefit." Both the Tenth and its more demanding sister circuits pointed to the Supreme Court's 1982 Rowley decision to support their interpretation of the IDEA.

De Minimis Progress Is No Progress

The Supreme Court granted cert and reversed. Rowley cannot be selectively read to require only de minimis progress, the Court explained. The law is "markedly more demanding" than the test applied by the Tenth, Chief Justice Roberts wrote for the unanimous Court. The reading of Rowley the school district advanced "runs headlong into several points on which Rowley is crystal clear," the Court explained: its insistence on sufficient benefits and its refusal to establish a single test to determine the adequacy of those benefits.

"When all is said and done," the Chief Justice wrote, "a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have bene offered an education at all."

Gorsuch Apologizes for Earlier Ruling

The ruling came at a slightly awkward moment for Judge Neil Gorsuch, whose 1996 ruling in Thompson R2-J School District v. Luke P. helped establish the "merely more than de minimis" standard. Gorsuch, who was testifying before the Senate Judiciary Committee, immediately faced questions regarding the case.

"We were bound by circuit precedent" in relying upon the undemanding standard, Judge Gorsuch explained.

"I was wrong because I was bound by circuit precedent, and I'm sorry."

"If anyone is suggesting that I like a result where an autistic child happens to lose, it's a heartbreaking accusation," he said.

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