Amicus Curiae Brief — Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017) (No. 15-827)

RECORD at No. 15-827 Supreme Coun.

BREF® IN THE NOV 2 1 2016

Supreme Court of the United States

ENDREW F., A MINOR, BY AND THROUGH HIS PARENTS

AND NEXT FRIENDS, JOSEPH F. AND JENNIFER F.,

Petitioner,

Uv.

DOUGLAS COUNTY SCHOOL DISTRICT RE-1,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR ADVOCATES FOR CHILDREN OF NEW

YORK, CHILDREN’S LAW CENTER, INC.,

CONNECTICUT PARENT ADVOCACY CENTER,

EQUIP FOR EQUALITY, THE LEGAL AID SOCIETY,

LEGAL SERVICES NYC, NATIONAL CENTER FOR

YOUTH LAW, NEW YORK LAWYERS FOR THE

PUBLIC INTEREST, NEW YORK LEGAL

ASSISTANCE GROUP, PARTNERSHIP FOR

CHILDREN’S RIGHTS, AND STATEWIDE PARENT

ADVOCACY NETWORK AS AMICI CURIAE IN

SUPPORT OF PETITIONER

DANIEL WINIK ALAN E. SCHOENFELD

JUSTIN BAXENBERG Counsel of Record

WILMER CUTLER PICKERING WILMER CUTLER PICKERING

HALE AND DORR LLP HALE AND DORR LLP

1875 Pennsylvania Ave., NW 7 World Trade Center

Washington, DC 20006 250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...ccccccccosccoscscsccccccccscscccscscess ii

INTEREST OF AMICI CURITAE...............cccccesesseeeeeeees 1

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I. THE IDEA GUARANTEES MEANINGFUL

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A. Congress Has Set Demanding Stand-

ards For The Education Of Students

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B. Rowley Reserved The Question Of

What Constitutes Meaningful Access

To Education, But Congress Has Since

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IL ADHERENCE To IDEA PROCEDURES CAN-

NOT GUARANTEE MEANINGFUL ACCESS TO

EDUCATION

A. The IDEA’s Procedural Requirements

B.

Provide No Substantive Protection To

Students With Disabilities......................:c00

The Courts’ Implementation Of The

IDEA Demonstrates The Ineffective-

ness Of Relying On _ Procedural

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CONCLUSION

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TABLE OF AUTHORITIES

CASES

Page(s)

Board of Education of the Hendrick Hudson

Central School District v. Rowley, 458 U.S.

Fe icicinnciiiscaneiscapistucsnepeiintsladeiianea 6, 7, 10, 11, 12, 18

D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d

ee ON, SP ei ciccvianinitatnbinitssinailinniibiaianiciiiisimaiatnii 24

Deal v. Hamilton County Board of Education,

392 F.3d 840 (6th Cir. 2004) .............ccccccccesseseees 12, 13

Judulang v. Holder, 132 5. Ct. 476 (2011) ...........ce cee 19

Massachusetts v. EPA, 549 U.S. 497 (2007).................. 19

O.S. ex rel. Michael S. v. Fairfax County

School Board, 804 F.3d 354 (4th Cir. 2015)............. 24

Polk v. Central Susquehanna Intermediate

Unit 16, 853 F.2d 171 (8d Cir. 1988)........... cece 12

Ridgewood Board of Education v. N.E., 172

ee GEE Ee Ge II vicvtthiccensnerevieincititinrininiansvortensee 23

Rockwall Independent School District v. M.C.

ex rel. M.C., 816 F.3d 329 (5th Cir. 2016)................ 24

Thompson R2-J School District v. Luke P. ex

rel. Jeff P., 540 F.3d 1143 (10th Cir. 2008)........ 21, 22

il

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTES, REGULATIONS, AND LEGISLATIVE

AUTHORITIES

20 U.S.C.

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150 Cong. Rec. $11,653 (daily ed. Nov. 19, 2004).......... 18

INTEREST OF AMICI CURIAE

Amici curiae are advocacy and legal-services

organizations committed to protecting the rights of

children with disabilities to receive a quality education

in public schools.’

For over forty years, Advocates for Children of

New York (AFC) has worked with low-income families

to secure quality public education services for their

children, including children with disabilities. AFC

provides a range of direct services, including advocacy

for students and families in individual cases, and also

pursues institutional reform of educational policies and

practices through advocacy and litigation. AFC

routinely advocates for the rights of children and their

families under the Individuals with Disabilities

Education Act (IDEA) and therefore has a strong

interest in the proper interpretation of the IDEA.

The Children’s Law Center, Ine. (CLC) is a non-

profit organization committed to the protection and

enhancement of the legal rights of children. CLC

strives to accomplish this mission through various

means, including providing legal representation for

children and advocating for systemic and _ societal

change. For over 27 years, CLC has worked in the field

of special education to ensure that all youth, regardless

of race, ethnicity, gender, sexual orientation, economic

status or disability, have access to education

programming which provides meaningful benefit. Each

year, CLC represents hundreds of students with

' Both parties have given written consent to the filing of all

amicus briefs. No counsel for a party authored this brief in whole

or in part, and no person other than amici, their members, or their

counsel made a monetary contribution to the preparation or

submission of this brief.

2

disabilities in ensuring that their rights under the

IDEA are protected. To this end, CLC has a strong

interest in ensuring that all students with disabilities

receive an education appropriate to meet their unique

needs.

Connecticut Parent Advocacy Center (CPAC) is

Sonnecticut’s federally-funded Parent Training and

Information Center pursuant to 20 U.S.C. § 1482.

CPAC’s mission is to empower and support families,

and inform and involve professionals and others

interested in the healthy development and education of

children and youth, with the goal of ensuring that all

children and youth, including those with disabilities,

receive the services needed to become productive,

contributing members of their communities and our

society. CPAC provides training and _ technical

assistance to thousands of parents and professionals

each year, on issues such as special education, school

reform, rights of homeless and immigrant children,

bilingual services, discipline and positive behavioral

supports, parent involvement, and parent-professional

collaboration.

Equip for Equality (EFE) is an independent, non-

profit, civil rights organization for people with

disabilities which administers the Protection and

Advocacy System in the State of Illinois. EFE

provides information, referral, self-advocacy assistance,

and legal representation to people with disabilities

throughout the State. One of EFE’s primary areas of

focus is the rights of children with disabilities. Every

year, EFE assists approximately 1,500 children with

disabilities seeking legal assistance in disputes with

school districts. Specifically, EFE provides systemic

and individual legal services to students. with

disabilities who are not receiving a free appropriate

3

public education as guaranteed by the IDEA. As a

result, EFE has a strong interest in the proper

interpretation of the IDEA.

The Legal Aid Society of New York City is the

nation’s oldest and largest provider of legal services to

low-income families and individuals. Each year, the

Society provides legal assistance in some 300,000 legal

matters involving civil, criminal, and juvenile rights. A

significant number of the Society’s clients are children

with disabilities, who struggle to obtain the educational

services they need in order to be prepared for further

education, employment, and independent living. The

Society also provides extensive advocacy for adults

with disabilities, many of whom did not receive

adequate special education services as children and are

now suffering lifelong consequences. The Society

therefore has a significant interest in ensuring that

students with disabilities have access to appropriate

educational services under the IDEA.

Legal Services NYC (LSNYC) is one of the largest

law firms for low income people in New York City, with

18 community-based offices and numerous outreach

sites located throughout each of the City’s five

boroughs. LSNYC serves over 70,000 New Yorkers

annually through a number of specialized practices,

including disability advocacy and education rights.

LSNYC regularly engages in litigation, advocacy, and

education on behalf of public school students and their

families related to the IDEA.

National Center for Youth Law (NCYL) is a

private, non-profit organization that uses the law to

help children in need nation-wide. For more than 40

years, NCYL has worked to protect the rights of low-

income children and to ensure that they have the

4

resources, support, and opportunities necessary for

healthy and _ productive lives. NCYL provides

representation to children and youth in cases that have

a broad impact and has represented many children with

disabilities in litigation and class administrative

complaints to ensure their access to appropriate and

non-discriminatory services. NCYL engages in

legislative and administrative advocacy to provide

children a voice in policy decisions that affect their

lives. NCYL pilots collaborative reforms with state

and local jurisdictions across the nation to improve

educational outcomes of children in the foster care and

juvenile justice systems, with a particular focus on

improving education for system-involved children with

disabilities.

New York Lawyers for the Public Interest, Inc.

(NYLPI) is a public interest law office founded in 1976

which, through its Disability Justice program and

partnerships with community groups, advocates for the

rights of persons with disabilities in New York. On

both an individual and systemic basis, NYLPI

represents low-income parents and their children with

disabilities to ensure the children receive the free

appropriate public education (FAPE) guaranteed by

the IDEA, Section 504 of the Rehabilitation Act and

state and loc» laws.

The New York Legal Assistance Group (NYLAG)

is a not-for-profit law firm founded in 1990 to provide

free civil legal services to low income New Yorkers

who would otherwise be unable to afford or receive

legal assistance. NYLAG assists the poor and near

poor in New York City in accessing legal rights of vital

importance. NYILAG’s clients include, among others,

seniors, immigrants, victims of domestic violence,

Holocaust survivors, and at-risk children. With regard

5

to children, NYLAG represents them in _ special

education cases and SSI appeals.

Partnership for Children’s Rights (PFCR) is a

nonprofit organization that provides free legal services

to disabled children from low-income families

throughout New York City in the area of special

education. PFCR’s mission is to ensure that each

disabled child receives an appropriate education under

the IDEA and a meaningful opportunity for self-

sufficiency in adulthood.

The Statewide Parent Advocacy Network (SPAN)

is New Jersey’s federally funded Parent Training and

Information Center pursuant to 20 U.S.C. § 1482.

SPAN’s mission is to empower and support families,

and inform and involve professionals and others

interested in the healthy development and education of

children and youth with the goal of ensuring that all

children and youth, including those with disabilities,

receive the services needed to become productive,

contributing members of their communities and our

society. SPAN provides training and _ technical

assistance to thousands of parents and professionals

each year, on issues such as special education, school

reform, rights of homeless and immigrant children,

bilingual services, discipline and positive behavioral

supports, parent involvement, and parent-professional

collaboration.

SUMMARY OF ARGUMENT

[In opposing certiorari, respondent contended that

the Individuals with Disabilities Education Act (IDEA)

relies almost exclusively on procedural requirements to

meet Congress’s goal of ensuring that students with

disabilities receive a free appropriate public education.

6

Supp. Br. 1. Respondent abjures the notion that the

IDEA imposes any substantive requirement at all on

the education provided to students with disabilities,

except for a requirement “that the education to which

access is provided is reasonably calculated to confer

more than a de minimis educational benefit.” /d.

Respondent’s position is at odds with this Court’s

decision in Board of Education of the Hendrick Hudson

Central School District v. Rowley, 458 U.S. 176 (1982),

with Congress’s subsequent amendments to the IDEA,

and with common sense. In enacting and amending the

IDEA, Congress elaborated a comprehensive scheme

for ensuring that students with disabilities have an

equal opportunity to succeed in the classroom, to “meet

developmental goals,” and to “be prepared to lead

productive and independent adult lives, to the

maximum extent possible.” 20 U.S.C. § 1400(c)(5)(A)(i)-

(ii). It would be surpassingly odd for Congress to

legislate in the service of such ambitious goals, only to

have local school districts fulfill their statutory

obligations by developing individualized educational

programs (IEPs) that check off the requisite procedural

steps but confer barely any educational benefits on

students with disabilities.

In arguing to the contrary, respondent relies

heavily on the notion that this Court’s decision in

Rowley forecloses any substantive definition of what

makes a free public education “appropriate,” beyond

the meaningless requirement imposed by the Tenth

Cireuit. Not so. Rowley recognizes that the

requirement of a “free appropriate public education”

must have some substantive meaning given Congress’s

desire to guarantee “meaningful” access to an education

for children with disabilities. 458 U.S. at 192. And

although the Court declined te answer the question of

7

how to determine “when handicapped children are

receiving sufficient educational benefits to satisfy the

requirements of the” IDEA, id. at 202, Congress

stepped into the breach, clarifying in subsequent

amendments that the IDEA’s purpose is “to ensure

that all children with disabilities have available to them

a free appropriate public education that emphasizes

special education and related services designed to meet

their unique needs and prepare them for further

education, employment, and independent living,” 20

U.S.C. § 1400(d)1)(A). The amendments thus make

clear that an education supplies the necessary degree of

benefit when the IEP is reasonably tailored “to meet

the[] unique needs” of each student with a disability

“and prepare [the student] for further education,

employment, and independent living.” /d.

Forswearing any substantive guidance from the

statute, respondent theorizes that the IDEA’s

procedural provisions will sufficiently ensure that

children with disabilities receive an appropriate

education. But as the experiences of amici and their

clients have shown, adherence to procedures alone does

not ensure that students receive an _ education

appropriate to meet their unique needs. Moreover, it is

amici’s experience that school districts, administrative

hearing officers, and ultimately courts need more

guidance on what constitutes the requisite educational

benefit under Rowley.

Congress enacted and amended the IDEA because

local educational authorities often lacked the

understanding, ability, or will to meet. the

individualized needs of students with disabilities.

Respondent’s position assumes that Congress

responded to those deficiencies by announcing

ambitious goals for students with disabilities but

8

entrusting fulfillment of those goals to a procedural

scheme alone. The Court should instead assume

Congress intended that its high expectations be carried

into effect, by ensuring that IEPs are substantively

adequate to meet students’ educational needs, not just

that they are promulgated in accordance with a set of

procedures and provide a “more than de minimis”

degree of benefit.

ARGUMENT

I THE IDEA GUARANTEES MEANINGFUL ACCESS TO

EDUCATION

A. Congress Has Set Demanding Standards For

The Education Of Students With Disabilities

In enacting and amending the IDEA, Congress has

set the goal of ensuring that students with disabilities

have an equal chance to succeed in leading productive

and independent lives.

Congress’s most recent findings—associated with

the 1997 and 2004 amendments to the [IDEA—establish

that the statute aims not just to grant students with

disabilities access to public school classrooms but to

enable them to succeed there, to the maximum extent

possible. Congress determined that although prior

versions of the IDEA had “been successful in ensuring

children with disabilities ... access to a free appropriate

public education,” the statute’s implementation had

“been impeded by low expectations.” 20 U.S.C.

§ 1400(c)(3)-(4). It observed that during the three

decades since the enactment of the IDEA’s

predecessor, the Education for All Handicapped

Children Act of 1975, “research and experience hajve]

demonstrated that the education of children with

disabilities can be made more effective by ... having

9

high expectations for such children and ensuring their

access to the general education curriculum in the

regular classroom, to the maximum extent possibie.”

Id. § 1400(c)(5). Congress found that students witii

disabilities are capable of “meet[ing] developmental

goals and, to the maximum extent possible, the

challenging expectations that have been established for

all children,” and that they should “be prepared to lead

productive and independent adult lives, to the

maximum extent possible.” Jd. § 1400(c)(5)(A)(i)-(ii).

Consistent with these findings, Congress has

specified that one of the IDEA’s purposes is “to ensure

that all children with disabilities have available to them

a free appropriate public education that emphasizes

special education and related services designed to meet

their unique needs and prepare them for further

education, employment, and independent living.” 20

U.S.C. § 1400(d)(1)(A). Congress has also declared a

“national policy of ensuring equality of opportunity, full

participation, independent living, and economic self-

sufficiency for individuals with disabilities.” /d.

§ 1400(c)(1).

It is inconceivable, given Congress’s findings and

its exposition of the ambitions of the IDEA, that the

“free appropriate public education” Congress meant to

guarantee, 20 U.S.C. § 1412(a)(1)(A), was one providing

just barely more than a de minimis benefit to students

with disabilities. Rather, Congress has prescribed that

public schools must give students with disabilities an

education that is substantially equal—in its rigorous

demands and high expectations—to the one received by

all other students.

10

B. Rowley Reserved The Question Of What

Constitutes Meaningful Access To Education,

But Congress Has Since Answered It

The Tenth Circuit’s precedents—and respondent’s

position at the certiorari stage—rest on the notion that

any genuine substantive requirement of an

“appropriate” education is foreclosed by this Court’s

decision in Board of Education of the Hendrick Hudson

Central School District v. Rowley, 458 U.S. 176 (1982).

But Rowley does not support, let alone compel, that

crabbed reading. Rather, Rowley recognizes that the

requirement of a “free appropriate public education”

must have some substantive meaning given Congress’s

desire to guarantee “meaningful” access to an education

for children with disabilities. Jd. at 192.

In Rowley, the Court addressed a challenge to an

IEP for Amy Rowley, a first-grade student with a

hearing impairment. 458 U.S. at 184-186. Amy’s

parents asked the school district to provide a sign-

language interpreter in each of her classes. /d. at 184.

Instead, the IEP provided for her to use a hearing aid

and receive periodic instruction from a tutor and a

speech therapist. /d.

The district court ruled in favor of Amy’s parents.

The court found that Amy was “a remarkably well-

adjusted child,”” who “interact[ed] and communicate[d]

well with her classmates and ha[d] ‘developed an

extraordinary rapport’ with her teachers.” 458 U.S. at

185. Amy was, in fact, “perform|ing] better than the

average child in her class and [was] advancing easily

from grade to grade.” Jd. Nonetheless, the district

court determined that she was not receiving a “free

appropriate public education” because she could

““understand|| considerably less of what goes on in

11

class than she could if she were not deaf and thus

‘‘was] not learning as much, or performing as well

academically, as she would without her handicap.” Jd.

The Second Circuit embraced that analysis. /d. at 186.

This Court rejected the lower courts’ conclusions

that in enacting the IDEA, Congress intended “to

achieve strict equality of opportunity or services”

between students with and without disabilities. 458

U.S. at 198. Looking to “the language of the statute,”

the Court found no “substantive standard prescribing

the level of education to be accorded handicapped

children.” Jd. at 189 (emphasis added).

The Court’s analysis did not end with the language

of the statute, however. Rather, the Court proceeded

to examine other indicia of the IDEA’s meaning. And

in doing so, it recognized that the requirement of a

“free appropriate public education” must have some

substantive meaning.

First, the Court opined that in seeking “to make

public education available to handicapped children,”

Congress must have intended “to make such access

meaningful.” 458 U.S. at 192. In the Court’s view,

Congress did not intend to “impose upon the States any

greater substantive educational standard than” that.

Id. (emphasis added). But the requirement of

“meaningful” access to an education is itself a

substantive threshold. The Court recognized, for

example, that “furnishing handicapped children with

only such services as are available to nonhandicapped

children would in all probability fall short of the

statutory requirement.” /d. at 198-199.

Second, the Court held that “the congressional

purpose of providing access to a ‘free appropriate

public education” implies “the requirement that the

12

education to which access is provided be sufficient to

confer some educational benefit upon the handicapped

child.” 458 U.S. at 200. “It would do little good,” the

Court recognized, “for Congress to spend millions of

dollars in providing access to a public education only to

have the handicapped child receive no benefit from that

education.” /d. at 200-201.

The Rowley Court left open the question of how to

determine “when handicapped children are receiving

sufficient educational benefits to satisfy the

requirements of the” IDEA. 458 U.S. at 202. But it did

so simply because resolving that question was

unnecessary, in a case in which the student with

disabilities was “receiving substantial specialized

instruction and related services” and was “performing

above average in the regular classrooms of a public

school system.” /d.; see Polk v. Central Susquehanna

Intermediate Unit 16, 853 F.2d 171, 180 (8d Cir. 1988)

(“Rowley was an avowedly narrow opinion that relied

significantly on the fact that Amy Rowley progressed

successfully from grade to grade in a ‘mainstreamed’

classroom.”); see also Deal v. Hamilton Cty. Bd. of

Educ., 392 F.3d 840, 863 (6th Cir. 2004) (same).

Fortunately, Congress’s post-Rowley amendments

to the IDEA have answered the question reserved by

the Rowley Court: What degree of “educational

benefit” is required for a student with a disability to

have “meaningful access” to a free public education?

Congress has stated that one of the amended IDEA’s

purposes is “to ensure that all children with disabilities

have available to them a free appropriate public

education that emphasizes special education and

related services designed to meet their unique needs

and prepare them for further education, employment,

and independent living.” 20 U.S.C. § 1400(d)(1)(A).

13

Congress has thus directly indicated what sort of “free

appropriate public education” it regards as supplying

the requisite educational benefit—namely, one that is

reasonably tailored “to meet the|] unique needs” of

students with disabilities “and prepare them for further

education, employment, and independent living.” /d.

Moreover, whereas th. Rowley Court found no

“congressional intent to achieve strict equality of

opportunity or services” between students with

disabilities and those without, 458 U.S. at 198

(emphasis added), Congress has since declared a

“national policy of ensuring equality of opportunity, full

participation, independent living, and economic self-

sufficiency for individuals with disabilities,” 20 U.S.C.

§ 1400(c)(1).

The Tenth Circuit’s standard—under which an IEP

is substantively adequate so long as the educational

benefit it provides is “more than de minimis,” Pet.

App. l6a (internal quotation marks omitted)—is

irreconcilable with Congress’s articulation of what the

IDEA is meant to achieve. As the Sixth Circuit has

observed, “states providing no more than some

educational benefit could not possibly hope to attain the

lofty goals proclaimed by Congress.” Deal, 392 F.3d at

864.

Il. ADHERENCE TO IDEA PROCEDURES CANNOT

GUARANTEE MEANINGFUL ACCESS TO EDUCATION

Respondent argues that “the IDEA’s procedural

requirements ensure that a child’s access to public

education is meaningful.” Supp. Br. 8 (internal

quotation marks omitted). That is incorrect. The

experiences of children with disabilities, their families,

and their advocates have shown that the procedures

14

specified by the IDEA, while critical to protecting the

rights of children with disabilities and their parents,

cannot by themselves guarantee that children with

disabilities will receive the education to which the

statute entitles them. Procedures are only as

meaningful as the substantive objectives that they are

employed to promote. To ensure that access to

education is meaningful, and substantially equal among

students with and without disabilities, the [DEA’s

procedural protections must be coupled’ with

substantive requirements that exceed the Tenth

Circuit’s meaningless formulation.

A. The IDEA’s’ Procedural Requirements

Provide No Substantive Protection To

Students With Disabilities

The IDEA provides an extensive procedural

framework for assessing the needs of a child with

disabilities, developing an appropriate IEP, and

ensuring that the IEP functions as intended. In the

absence of meaningful substantive requirements,

however, even the most careful adherence to those

procedures cannot ensure that children with disabilities

have access to the education that Congress envisioned.

Congress did not prescribe procedure for the sake of

procedure; it crafted the IDEA’s procedural framework

in the service of a substantive requirement that states

provide children with disabilities access to an education

that will “prepare them for further education,

employment, and independent living.” 20 U.S.C.

§ 1400(d)(1)(A). The IDEA’s procedures must be

understood as means to achieving this purpose, not as

ends in themselves.

The first set of procedures focuses on the

assessment of the educational needs of children with

15

suspected disabilities. The statute requires an initial

evaluation using “a variety of assessment tools” to

determine whether the child has a disability and how to

shape the [EP in order to “enabllie] the child to be

involved in and progress in the general education

curriculum.” 20 U.S.C. § 1414(b)(2)(A). The [EP team

must review evaluations and information provided by

the child’s parents and teachers and identify and obtain

any additional necessary information. /d. § 1414(c)(1).

Once the assessment is completed, the same statutorily

defined “team of qualified professionals,” together with

the child’s parents, must determine the educational

needs of the child. Jd. § 1414(b)(4)(A).

The IDEA next prescribes procedures for

developing an [EP that will meet the child’s needs. The

IDEA requires every IEP to include various elements:

a description of the child’s level of academic

performance, a set of annual goals designed to meet the

child’s disability-related needs, an explanation of how

progress towards these annual goals will be measured,

a statement of the services that will be provided to the

child, and a projected date for services to begin. 20

U.S.C. § 1414(d)(1)(A)(). If the child will not

participate with children without disabilities in a

general-education classroom or _ will require

accommodations for statewide or districtwide

assessments, the [EP must explain the extent of the

nonparticipation or accommodation. Id.

§ 1414(d)(1)(A)GXV)-(VID. And beginning with the

school year in which the child turns 16, the IEP must

include “appropriate measurable postsecondary goals”

for enabling the child to transition from high school into

further education or independent living. Id.

§ 1414(d)(1)(A)G@)CV II 1)(aa).

16

In developing the IEP, the IEP team must

consider “the strengths of the child,” “the concerns of

the parents,” “the results of the initial ... or most

recent evaluation of the child,” and “the academic,

developmental, and functional needs of the child.” 20

U.S.C. § 1414(d)8)(A\ii)-(iv). The team must also

consider “positive behavioral interventions” for

children with behavior that interferes with learning,

the language needs of children with limited English

proficiency, the special communication needs of

children with visual or auditory impairments, and the

use of assistive technology if appropriate. /d.

§ 1414(d)(3)(B).

The final set of procedures is meant to ensure that

the IEP is functioning as intended. The LEP must be

reviewed at least annually and revised as appropriate

to address any issues that may arise. 20 U.S.C.

§ 1414(d)(4)(A). Parents must be provided the

opportunity to review records relating to their child

and must receive written notice before any significant

change is made to their child’s education. /d.

§ 1415(b)(1), (3). And if parents are dissatisfied with

their child’s IEP or the treatment their child is

receiving, they have the right to a due process hearing

before an impartial hearing officer. /d. § 1415(f). A

party aggrieved by the hearing officer’s decision

ultimately may resort to state or federal courts. /d.

§ 1415(g), (i)(2).

These procedures are indisputably detailed. But in

arguing that the procedures themselves do the work of

achieving Congress’s purposes for the IDEA,

respondent profoundly misses the point. Like

procedures of all kinds, the IDE A’s procedures are only

means by which the people implementing them work

toward a substantive goal. If the Tenth Circuit were

17

correct that the IDEA’s only substantive requirement

is for students with disabilities to achieve “more than

de minimis” results, then that is the only outcome the

procedures will in turn promote. That is the standard

by which the IEP team will be compelled to determine

the child’s educational needs, 20 U.S.C. § 1414(b)(4)(A);

the standard by which the child’s educational goals

must be determined, id. § 1414(d)(1)(A)G@); and—

importantly—the standard by which a hearing officer

reviewing the [EP will determine “whether the child

received a free appropriate public education,” id.

§ 1415(f(8)(E)G). An IEP would comply with the

IDEA under this view so long as it were adopted using

the proper procedures, even if the plan proved to be all

but completely ineffective.

Indeed, respondent concedes that the consequence

of its interpretation is that the IDEA poses no bar to an

[EP under which a school district “offer[s] assistive

technology to a hearing-impaired child in just one class,

so long as the child made progress in that class.” Supp.

Br. 10-11. Respondent suggests that such an IEP

would violate the Americans with Disabilities Act

(ADA). Supp. Br. 11. But even if that were true, it is

hardly a satisfying answer to why the IDEA should be

construed to allow such an absurd result. That is

particularly so for amici and their clients—generally

poor parents seeking to protect their children’s rights

in the labyrinthine administrative and court

proceedings for review of IDEA claims. The notion

that parents would need to pursue a school’s failure to

fulfill its LEP goals in an IDEA proceeding, and

separately pursue the school’s failure to provide

accommodations for the same disability in a proceeding

brought under the ADA, is preposterous. Aside from

the potential exhaustion issues, c.f. Fry v. Napoleon

18

Community Schools, No. 15-497 (argued Oct. 31, 2016),

the ADA imposes different obligations and affords

different defenses than the IDEA. In the hypothetical

posited by the government and addressed by

respondent, for example, the school district could

escape any ADA liability by demonstrating that the

provision of assistive technology in every class “would

result in a fundamental alteration in the nature of a

service, program, or activity or in undue financial and

administrative burdens.” 28 C.F.R. § 35.164. The

IDEA allows no such defense.

Respondent argues that courts are not permitted

“to second-guess the substance of ... educational

decisions” made by an IEP team “by requiring a

‘particular outcome’ or ‘level of education.”” Supp. Br.

9. But when Congress legislates toward particular

ends, it rarely does so on a wing and a prayer, stating

the objective without actually mandating that it be

carried out. The Court should not presume Congress

acted so cavalierly in enacting and amending the IDEA,

particularly in view of the basic statutory command

that educators pursue the substantive objective of

providing an education reasonably tailored “to meet

the[] unique needs” of students with disabilities “and

prepare them for further education, employment, and

independent living,” 20 U.S.C. § 1400(d)(1)(A).’_ That

result would be inconsistent with Congress’s concern

that “low expectations” not be permitted to hold back

. Indeed, in introducing the Conference Report for the

amended IDEA, Senator Gregg described the amendments as

“shift{ing| focus away from compliance with burdensome and

confusing rules, and placling) a renewed emphasis on our most

fundamental concern|,} making sure that children with disabilities

receive a quality education.” 150 Cong. Rec. $11,653, 511,654

(daily ed. Nov. 19, 2004).

19

children with disabilities, id. § 1400(c)(4)—a clear

indication that Congress recognized the role of strong

federal standards in ensuring that school districts

provide sufficient education to children with

disabilities.

Respondent attempts to analogize the IDEA to the

Administrative Procedure Act (APA), on the theory

that both statutes “achieve[] Congress’s goals through

[their] procedures.” Supp. Br. 9. But that analogy, far

from supporting respondent’s position, highlights its

weakness. The APA alone does not achieve Congress’s

goals; rather, it provides mechanisms for guiding and

correcting agencies as they carry out the purposes

specified in substantive law by Congress. See

Judulang v. Holder, 132 8S. Ct. 476, 485 (2011) (agency

action “must be tied” to the purposes of the law). And

when agencies fail to act in a manner reasonably

calculated to promote Congress’s purposes, courts can

and do overturn their actions for contravening or

misinterpreting the underlying substantive law. See,

eg., id. at 490 (overturning Board of Immigration

Appeals interpretation “unmoored from the purposes

and concerns of the immigration laws”); Massachusetts

v. EPA, 549 U.S. 497, 528 (2007) (holding that the Clean

Air Act barred EPA’s argument that it could not

regulate greenhouse gas emissions from automobiles).

Unlike the APA, the IDEA’s procedures do not

implement some other congressional objective manifest

in some other statute; those procedures implement the

same statute’s substantive objectives. In the IDEA, as

in the statutes that federal agencies are charged with

implementing, Congress has specified the purpose that

it wants carried out: Congress wants school districts to

give students with disabilities an education that is

“designed to meet their unique needs and prepare them

20

for further education, employment, and independent

living.” 20 U.S.C. § 1400(d)(1)(A). IEPs that fail to

pursue that purpose are just as unlawful as agency

actions that fail to pursue the substantive goals

Congress has set. Respondent’s position—that

Congress had no interest in the results achieved by an

IEP, so long as the requisite procedures were

followed—is as untenable as the notion that a court

reviewing a regulation under the APA need not look to

the statute being administered so long as the regulation

was issued through notice-and-comment rulemaking.

That is not how the APA functions, and it should not be

how the IDEA functions.

B. The Courts’ Implementation Of The IDEA

Demonstrates The Ineffectiveness Of Relying

On Procedural Protections Alone

Respondent claims that the IDEA’s procedures

“ensure that educators do aim high when they develop

an IEP in collaboration with the child’s parents.” Supp.

Br. 9. Unfortunately, the “more than de minimis”

standard adopted by the Tenth Circuit and other courts

has resulted in children with disabilities being denied

the services they need to obtain a meaningful

education. Congress surely did not intend to construct

a statute that acknowledges the government’s

“responsibility to provide an equal educational

opportunity for all individuals,” 20 U.S.C. § 1400(¢)(7),

and promises “to ensure that the rights of children with

disabilities and parents of such children are protected,”

id. § 1400(d)(1)(B), but fails to actually keep those

promises. The caselaw shows how fealty to IDEA’s

procedural requirements often fails to advance the

statute’s ambitious substantive aims.

21

Consider Luke P., a child with autism, on whose

case the Tenth Circuit relied in rejecting Endrew F.’s

appeal. Pet. App. 3a, 16a, 19a, 2la (citing Thompson

R2-J Sch. Dist. v. Luke P. ex rel. Jeff P., 540 F.3d 11438

(10th Cir. 2008)). Luke began receiving special-

education services in kindergarten, after being

diagnosed with autism at the age of two. During

kindergarten and first grade, he achieved many of his

IEP goals and made significant progress, but he began

to demonstrate problems with applying skills learned in

the classroom to non-classroom environments. 540 F.3d

at 1145-1146. Luke transferred to another public school

in the second grade, and continued to make some

progress, but his behavioral challenges increased. He

refused to sleep in a bed, woke up frequently

throughout the night, and “developed a habit of

intentionally spreading his nighttime bowel movements

around his bedroom.” /d. at 1146.

After an occupational therapist determined that

“since transferring ... Luke had apparently regressed

in certain respects,” 540 F.3d at 1146, Luke’s parents

determined that he required residential treatment

tailored to students with autism. The school district

insisted that Luke could receive an adequate education

in his current placement, in spite of the behaviors he

was exhibiting. Luke’s parents subsequently sought a

due process hearing under the IDEA, and the impartial

hearing officer agreed with them that the district’s

proposed IEP was inadequate. Jd. at 1147. This

determination was upheld on administrative appeal by

an administrative law judge who noted that Luke “was

unable to transfer any of his learned skills and use them

in environments outside of school.” Jd. After the

school district brought suit in federal court, the district

court agreed with the hearing officer and the ALJ that

22

the IEP was insufficient because “whatever

educational progress Luke made ... was meaningless if

there was no strategy to ensure those skills would be

transferred outside of the school environment.” /d. at

1154.

The Tenth Circuit reversed. Like respondent, the

Tenth Circuit viewed the IDEA as establishing

“procedures to guarantee disabled students access and

opportunity, not substantive outcomes.” 540 F.3d at

1151. The remainder of the court’s analysis followed

from the premise that compliance with the IDEA’s

procedural requirements sufficed, irrespective of the

substantive quality of the child’s educational

development. Because Luke had been making “some

progress”—even though that progress was minimal

and, as noted by the district court, ““meaningless”—the

court determined that it was “constrained” to disagree

with the district court, the ALJ, and the hearing

officer. /d. at 1154-1155. Rather, the court held, “(t]he

fact that ... Luke was making some educational

progress and had an IEP reasonably calculated to

ensure that progress continued [was] sufficient to

indicate compliance,” regardless of how minimal that

progress was. /d. at 1154.

Or consider Endrew F., the petitioner in this case.

As the petitioner’s brief explains (at 8-12), the LEP that

respondent offered Endrew and his parents may have

complied in every respect with the IDEA’s procedural

requirements—but even if it did, it was plainly

inadequate to provide Endrew with meaningful access

to the classroom and a substantially equal opportunity

for an education. Respondent’s paean to procedure

rings particularly hollow given respondent’s own

failure to live up to its lofty claims about how

23

procedural compliance will necessarily ensure good

educational outcomes.

So long as courts refuse to apply a meaningful

substantive standard in reviewing the adequacy of

IEPs, the procedures required by the IDEA will be

inadequate to protect the rights of children with

disabilities to receive an education. This Court should

clarify that the IDEA requires more.

Ill. THE COURT SHOULD ARTICULATE AS DETAILED A

STANDARD AS POSSIBLE

In the mine run of cases, the IDEA is implemented

by the IEP team (composed of educators and parents)

and by state administrative officers, who hear

challenges to the adequacy of the IEP. Those parties

need express direction from this Court as they fulfill

their statutory responsibilities to guarantee meaningful

access to education for students with disabilities. The

Court would do little to clarify the law if it were simply

to reject the Tenth Circuit’s standard of a “more than

de minimis” benefit in favor of a “meaningful benefit”

standard, without giving content to the definition of a

“meaningful benefit” as suggested above. That is

particularly so because, among other things, the

Circuits have used the phrase “meaningful benefit” in

different ways.

The Third and Sixth Circuits correctly regard a

“meaningful” educational benefit as one that exceeds

the Tenth Circuit’s low threshold. See, e.g., Ridgewood

Bd. of Educ. v. N.E., 172 F.3d 238, 247 (8d Cir. 1999)

(“[tlhe provision of merely ‘more than a trivial

educational benefit’ does not meet” the Circuit’s

“significant learning’ and ‘meaningful benefit”

standards), superseded by statute on other grounds as

24

recognized by P.IP. ex rel. Michael P. v. W. Chester

Area Sch. Dist., 585 F.3d 727, 730 (8d Cir. 2009); Deal,

392 F.3d at 862-864 (similar). Other Circuits, however,

have equated the “meaningful benefit” standard with

the Tenth Circuit’s. See, e.g., Rockwall Indep. Sch.

Dist. v. M.C. ex rel. M.C., 816 F.3d 329, 338 (5th Cir.

2016) (contrasting a “meaningful” benefit with one that

is ““a mere modicum or de minimus’”’); O.S. ex rel.

Michael S. v. Fairfax Cty. Sch. Bd., 804 F.3d 354, 359

(4th Cir. 2015) (“Using ‘meaningful’ ... was simply

another way to characterize the requirement that an

IEP must provide a child with more than minimal,

trivial progress.”); D.B. ex rel. Elizabeth B. v. Esposito,

675 F.3d 26, 34 (1st Cir. 2012) (“[T]he IDEA calls for

more than a trivial educational benefit, in line with the

intent of Congress to establish a ‘federal basic floor of

meaningful, beneficial educational opportunity.”’).

Even within each Circuit, the courts have differing

interpretations of the level of progress that reaches an

educational] benefit.

Parents and school administrators require as much

clarity as possible in making the difficult choices

involved in educating students with disabilities.

Parents must understand the governing standard in

order to advocate for their children. The clarity of the

standard is particularly important when parents must

make the difficult choice to pull their child out of a

public school and enroll the child in a private school—a

choice that can be financially devastating if a court

ultimately holds, as the lower courts did in this case,

that the public school was providing a “free appropriate

public education.” School administrators likewise

cannot properly fulfill their obligations under the IDEA

unless they understand what educational benefits they

are obligated to provide.

25

The Court should therefore hold, consistent with

Rowley and with Congress’s subsequent amendments

to the IDEA, that a public education is substantively

“appropriate” if it is reasonably tailored “to meet. the[]

unique needs” of students with disabilities “and

prepare them for further education, employment, and

independent living,” 20 U.S.C. § 1400(d)(1)(A).

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

DANIEL WINIK ALAN E. SCHOENFELD

JUSTIN BAXENBERG Counsel of Record

WILMER CUTLER PICKERING WILMER CUTLER PICKERING

HALE AND DORR LLP HALE AND DORR LLP

1875 Pennsylvania Ave.,. NW 7 World Trade Center

Washington, DC 20006 250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@wilmerhale.com

NOVEMBER 2016