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

RESORD

BRIEFS No. 15-827

i. —

In the Supreme Court of the Gnited States

ENDREW F., A MINOR,

BY AND THROUGH HIS PARENTS AND NEXT

FRIENDS, JOSEPH F. AND JENNIFER F.,

Petitioner,

Ve

DOUGLAS COUNTY SCHOOL DISTRICT RE-1,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF OF AMICI CURIAE COLORADO STATE

BOARD OF EDUCATION AND COLORADO

DEPARTMENT OF EDUCATION

IN SUPPORT OF THE RESPONDENT

CYNTHIA H. CoFFMAN JULIE C. TOLLESON

Attorney General First Assistant Attorney

: General

FREDERICK R. YARGER

Solicitor General Office of the Colorado

Counsel of Record Attorney General

1300 Broad

GLENN E. ROPER 10th Fleer ied

Fred. Yarger@coag.gov

(720) 508-6186

Counsel for Amici Curiae Colorado State Board of

Education and Colorado Department of Education

rr ————

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTION PRESENTED

What is the level of educational benefit that schoo!

districts must confer on children with disabilities to

provide them with the free appropriate public

education guaranteed by the Individuals’ with

Disabilities Education Act, 20 U.S.C. § 1400 et seq.?

i

TABLE OF CONTENTS

QUESTION PREMIER 2... wc ccc ccc cece eeee i

ye FP Ee mi iy. 5-5. eer ere iv

INTEREST OF AMICICURIAE ...........-.... ]

I 0 Le eb ae BW ed Pek N ae wee g 4

SUMMARY OF ARGUMENT ............-..+.. 12

EAs ote aca ees 6d Wee rite Ke OE OE 14

I. IDEA is part of a body of education funding

statutes that work in concert, that can only

impose duties unambiguously, and that entrust

the details of implementation to the States.... 14

A. The IDEA must be understood within the

larger context of federal education policy. .. 14

B. Courts cannot infer an amendment to IDEA;

Congress must speak unambiguously. .... 16

©. Educational standards-setting is entrusted to

State governments and managed through

accountability systems, not lawsuits. ..... 18

Il. Petitioner and the Federal Government propose

a standard that will impede collaboration

between schools and families and that is

fundamentally unworkable. ............... 23

A. The proposed standard of review threatens

the schoo} and family collaboration that is

the hallmark of IEP development. ........ 23

B. The proposed standard is unworkable. .... 25

il

1. The proposed standard is ambiguous. .. 25

nN

The legal sufficiency of an IEP should

not be judged in hindsight based on

SE TSG 3 so ss weet ad kee ee eat 29

bo ere ararere weyeany re parece 31

iV

TABLE OF AUTHORITIES

CASES

Adams v. Oregon,

195 F.3d 1141 (Oth Cir. 1999) .............- 31

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

a ee CD vig eco eh lak ois oe ee 8 17

Bd. of Educ. of the Hendrick Hudson Cent. Sch.

Dist. v. Rowley,

po eh A 8. rrr a rr passim

Carlisle Area Sch. v. Scott P.,

On Wk eee tes Cre F908)... 5 5 i eee

Forest Grove Sch. Dist. v. T.A.,

ee, re es ws Kee ee es 10

Heart of Atlanta Motel, Inc. v. United States,

a ee CD sks chk eee howe wow ees 18

Honig v. Doe,

ee I oo ee i bree elk wml alaem a 4

Horne v. Flores,

og ce ME Ee ee passim

K.E. v. Indep. Sch. Dist. No. 15,

BAF O Se Tee Cs Git. Bene) oi ce cece ees 31

Lorillard v. Pons,

Se ee 8 hi canoe ee eer eee 17

Pennhurst State Sch. & Hosp. v. Halderman,

ee, ED ag wad des yen sks ee ae 18

R.E. v. N.Y.C. Dep't of Educ.,

694 F.3d 167 (2d Cir. 2012) ...........++-- 31

Roland M. v. Concord Sch. Comm..

SiG Foe Sen (let Civ. 1900) ..... 2. ee eee. 31

Schaffer ex. rel. Schaffer v. Weast,

os tna t's bebe ee bis wah 16, 23

Smith v. Robinson,

ED na ew or cisa we wehic sears 24

West v. Gibson,

Se ID a as was w tc t Wess eb ere 17, 18

CONSTITUTION

Sp Cs OD DEED ves da saceccweeuw a ss 1

STATUTES AND REGULATIONS

1 COLO. CODE REGS. § 301-8 ................ 1, 24

20 U.S.C. §§ 701 et seg. (Rehabilitation Act

eS ica aa win Wee eae te ee ae ee cee 7

RI ee ge dew awias 22

Ee PE os ood ac cok wees ue ona kee 22

EE ee a ea ee we eee 21, 22

ES oso neha hs occ boat ec es eae 22

20 U.S.C. § 1400, et seg. (Individuals with

Disabilities Education Act) ............ passim

NE EE a og ate gh Ce ah ans ke 8, 16

LS Se eT heer rr pers ee 16, 23, 28, 30, 31

er I MO face on we oo ee Le een ane 24

ee AF: BF EONS. wei oe Khaw kd wae wel 1]

vi

20 U.S.C. §§ 2301 et seq. (Carl D. Perkins Career

and Technical Education Act of 2006)......... 7

20 U.S.C. §§ 6801-7974 (IDEA and the Elementary

and Secondary Education Act) ......... passim

Be 5d 4G ccc as os ae eee ees 5, 7, 14, 21

ee eta ee ED go ooo ae vs aco a whe Koala 15

Se RA gd seta oe die ts boerw Deck as 15

Be es REE ED hse Shas ceed oe 15

PEI, te re re es AE oe 4

20 U.S.C. §§ 9501 et seg. (Education Sciences

COU OEE oc civetcayeeveenentes 7

20 U.S.C. §§ 9601 et seg. (Education Technical

Se He Oe Dg hos cevcetcnesesss 7,8

20 U.S.C. §§ 9621 et seg. (National Assessment of

Educational Progress Authorization Act) ...... 8

29 U.S.C. §§ 3101 et seg. (Workforce Innovation and

I ce sa eb sk ue b'Sase Wace are wa A 7

29 U.S.C. §§ 3271 et seg. (Adult Education and

Pe PS, kee ba wcveeebiy oe cle 8

ET 4°55 a 6.) labs Oe ee a a hk ae Ooae 5

Ot Dirk bata yee re 2,3

I re gs ad Sin ss wiela we aeis Koo tee tie 2

ee ie ee I UD ow ag nie bse 6 2 We bw ere 3

ST EE wis go's ons oo cialis pe bate erence eek 3

vu

GB Utes. ee Exceed tee seen 17

42 U.S.C. §§ 9831 et seg. (Head Start Act) ........ 7

42 U.S.C. §§ 9858 et seg. (Child Care and

Development Block Grant Act of 1990) ........ 7

42 U.S.C. §§ 11301 et seg. (McKinney-Vento

rometas Anmoetenes Ret) .. 6. ess vtceevuss 8

42 UBL). 6 REGGE bes donc olintke ee 14, 26

COLO. REV. STAT. §§ 22-1-101 to 22-96-105 ....... 2

COLO. REV. STAT. § 2B-7-ROGB . ww eevee ees 19

COLO. REV. STAT. §§ 22-20-101 to -206 (Colorado’s

Ixceptional Children’s Educational Act) ...... l

COLO. REV. STAT. § 22-20-103(1) ............... 11

COLO. REV. STAT. § 22-20-106(1) ............2.. ll

COLO. REV. BTAT. § BB-aer We «ok vee crc bweeeuxes l

Couo. REV. STAT. § BG-146-156 . occ ewwdelea ne pee 2

1968 Bilingual Education Act, Pub. L. No. 90-247,

Sl Beat. TOR Chee sk wc ev ccceeleneseus ee 14

Education for All Handicapped Children Act, Pub.

L. No. 94-142, 89 Stat. 773 (1975)......... 9,14

Every Student Succeeds Act, Pub. L. No. 114-95,

12D Stat. TOG Cees ow vc eves sees ueien 20, 21

Improving America’s Schools Act, Pub. L. No. 103-

382, 108 Stat. 3518 (1994) ............ 6, 10, 19

Individuals with Disabilities Education Act (IDEA),

Pub. L. No. 101-476, 104 Stat. 1103 (1990) . 9, 14

Vill

IDEA Amendments of 1997, Pub. L. No. 105-17, 111

Te ote-u (ae & act © 9,10

Individuals with Disabilities Education

Improvement Act of 2004, 108 Pub. L. No. 446,

I rear 10, 11

McKinney-Vento Homeless Assistance Act, Pub. L.

No. 106-400, 114 Stat. 1675 (2000) ........... 26

No Child Left Behind Act, Pub. L. No. 107-110, 115

EE ob un wee sce ese es'ecee passim

Stewart B. McKinney Homeless Assistance Act,

Pub. L. No. 100-77, 101 Stat. 482 (1987) .. 14, 26

OTHER AUTHORITIES

Derek W. Black, Federalizing Education by Waiver?

a >|.) ree 7

Broken Systems, Broken Duties: A New Theory For

School Finance Litigation, 94 MARQ. L. REV.

TED. ccc ccc sscenetecenees 6

Jessica Bulman-Pozen, Executive Federalism Comes

To America, 102 VA. L. REV. 953 (June 2016) . 20

Colo. Dep’t. of Educ., Colorado Education Facts

and Figures (Oct. 2016),

http://tinyurl.com/hvdag3n ..........-6-565- 25

Colo. Dep't of Educ., State Level Complaint

Procedures, http://tinyurl.com/hp4ze9g....... 24

Colo. Dep’t of Educ., State Systemic Improvement

Plan Phase 1 (April 1, 2015),

http://tinyurl.com/hdnb906 ............-.--. 11

ix

Colo. Dep’t of Educ., State Systemic Improvement

Plan Phase 2 (April 1, 2016),

oe 11

Colo. Dep't. of Educ., Students with Disabilities

Birth-21 (2015), http://tinyurl.com/zpl8les .... 25

Colo. Dep’t of Educ., Writing Standards-aligned

Advanced Learning Plans (ALPs) and

Individualized Education Programs (IEPs): A

Supplemental Guidance Document for Designing

Effective Formal Educational Plans (Sept. 2014;

Updated March 2016), http://tinyurl.com/hrdjxk7

Natalie Gomez-Velez, Public School Governance

and Democracy: Does Public Participation

Matter? 53 VILL. L. REV. 297 (2008) .......... 6

Kimberly Jenkins Robinson, No Quick Fix for

Equity and Excellence: The Virtues of

Incremental Shifts in Education Federalism, 27

STAN. L. & POL’Y REV. 201 (2016) ........... 20

Lauren B. Resnick et al., Standards-Based Reform:

A Powerful Idea Unmoored, in Improving on No

Child Left Behind (Richard D. Kahlenberg ed.,

ET eras Care etd wie Pete aie ae eee 6

1

INTEREST OF AMICI CURIAE

The Colorado State Board of Education is an elected

body entrusted with the general supervision of

Colorado’s public schools pursuant to the State

Constitution. COLO. CoNsT. Art. IX § 1(1). As part ofits

responsibilities, the Board creates statewide education

policy, including by crafting rules for administering

state special education programs. It is governed in part

by Colorado’s Exceptional Children’s Educational Act,

CoLo. REV. STAT. §§ 22-20-101 to -206, and its

accompanying rules, which both incorporate by

reference and expand upon the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C.

§§ 1400-82, and its implementing regulations. See 1

COLO. CODE REGS. § 301-8. The state rules also define

the term Free Appropriate Public Education (FAPE)

and specify IDEA-aligned requirements for the

development and revision of Individualized Education

Programs (IEPs). Jd. § 301-8(2.19) & (4.03). Colorado

special education law also includes requirements

beyond those of IDEA. '

' For example, Colorado requires that: 1) IEPs specify whether the

child will achieve district, local, or charter school institute

standards, or instead achieve individualized standards, COLO. REV.

STAT. §22-20-108(4); 2) for a child who is visually impaired, the

[EP team must consider specified factors and adopt a literacy

modality plan, id. §22-20-108(4.5)(a); 3) for a child who is deaf, the

IEP team must consider specified factors and address the child’s

communication needs, id. §22-20-108(4.7), 4) the IEP requirement

for transition services begins when the child either is 15 years old

or completes ninth grade, 1 COLO. CODE Recs. § 301-

8(4.03)(6)d)(i); and 5) the special education director or designee is

not only a required IEP team member, but may not be excused

from participation. Jd. § 301-8(4.03)5\b).

2

The Colorado Department of Education is the state

agency responsible for implementing state K-12

education efforts. See generally COLO. REV. STAT. § 24-

14-115 (creating the Department); id. §§ 22-1-101 to 22-

96-105 (Colorado Education Code). The Department

operates under the leadership of the Board-appointed

Commissioner of Education and serves as the State

Educational Agency (SEA), as defined by 34 C.F.R.

§ 300.41, responsible for administering federally

funded education programs in Colorado.

The Department’s administration of IDEA has three

main elements. First, the Department’s Office of

Special Education oversees statewide IDEA

compliance. Its staff provides technical assistance to

districts and charter schools, conducts professional!

development for teachers, and maintains a public

website with information and resources for both

families and educators.

Second, the Department handles disputes and

complaints under IDEA. Through the Department’s

dispute resolution program, trained mediators

facilitate meetings between schools and families with

disabled children. The Department also has a

complaints process as required under IDEA rules, 34

C.F.R. § 300.151. Any organization or individual

alleging a violation of IDEA Part B may file a

complaint with the Department. State Complaints

Officers—all of whom are licensed attorneys—review

these complaints, conduct investigations as needed,

* The Department’s State Level Complaint Procedures were most

recently revised in 2010 and are available at

http://tinyurl.com/hp4ze9g.

3

and issue written decisions. If a _ school has

substantially failed to comply with IDEA, the State

Complaints Officer may direct remedial action and

award appropriate remedies. 34 C.F.R. § 300.151(b).

Third, parents and school districts may request a

due process hearing conducted by a Department

administrative law judge. In a due process hearing, the

parties present evidence and legal arguments, and the

ALJ issues findings of fact and conclusions of law and

may order remedies for any violations of IDEA. 34

C.F.R. § 300.511-—515. Parties aggrieved by the decision

of an AL.J may then challenge that decision by bringing

a civil action in state or federal court. 34 C.F.R.

§ 300.516.

Given their responsibilities under both IDEA and

Colorado law, the Board and the Department have a

keen interest in the standard that courts use in

evaluating the sufficiency of an IEP under the IDEA.

Amici take seriously their central role in the federally

funded, state-designed system of data-driven

accountability and continuous school improvement. But

that system should not be invoked to create a new

standard for IEP development divorced from any

language in the IDEA.

4

STATEMENT

This case involves two distinct yet interrelated legal

frameworks for which the amici bear fiscal and

administrative responsibility: the IDEA and the

Elementary and Secondary Education Act (ESEA), 20

U.S.C. §§ 6301-7974. Both the IDEA and the ESEA are

Spending Clause statutes. That is, in exchange for

federal funds, the Department takes on supervision

and oversight roles under terms specified by law. See,

e.g., 20 U.S.C. § 7842 (requirements regarding state

and local plans and applications).

Both statutes have an important place in the legal

architecture of public education, but they should not be

conflated. At the heart of IDEA is the IEP: specialized

educational programming designed to meet an

individual student’s needs. See Honig v. Doe, 484 U.S.

305, 310-11 (1988). In contrast, ESEA establishes a

system for school accountability and improvement that

seeks to raise the bar for all student groups. These two

prongs of federal education policy are complementary:

the IEP requirement ensures that schools meet the

individualized needs of students with disabilities, while

the school accountability system helps States provide

targeted support to schools and districts on a data-

driven basis. Petitioner blurs the line between these

two distinct statutes by suggesting that amendments

to ESEA altered the judicial review standard for

individua! FAPE claims under IDEA. Pet. Br. 28.

Background and evolution of the ESEA. The

ESEA was signed into law in 1965 and is at the center

of federal education policy. It is a funding statute that

has been repeatedly reauthorized by Congress,

sometimes with sweeping amendments. Over the years,

5

ESEA has evolved beyond its original emphasis on low-

income students and communities into a roadmap for

state-driven school improvement.

To receive federal funding under ESEA, States must

craft and submit a Plan. 20 U.S.C. § 6311. Among other

things, the State Plan allows for both data-driven

school-by-school ratings aud a demographic analysis of

student performance based on a statewide assessment.

Each State Plan must ensure that a number of

different subgroups—including traditionally overlooked

students such as racial minorities, special education

students, English-language learners, and low-income

populations—are making academic progress. The

States must monitor the performance of each subgroup

separately. For example, under ESEA, schools and

districts must review results on annual tests both by

the student population as a whole and by various

“subgroups” of students, including students with

disabilities. Jd. § 6311(b)(2)(B)Cxi).

Statewide accountability systems must be based on

“academic content standards” that specify what

students should know and be able to do. Jd. § 6311(b);

34 C.F.R. § 200.1(b)(1)(i). States must also adopt

“academic achievement standards” that are aligned

with the content standards. 20 U.S.C. § 6311(b); 34

C.F.R. § 200.1(c1\i). Tests must be aligned to those

“challenging academic content standards and

challenging student academic achievement standards,”

and those standards must apply to a// schools and al/

children. 20 U.S.C. § 6311(b)(2)(B)(i).

The ESEA mandate for annual assessments that

are aligned to challenging academic expectations grew

out of the standards-based reform movement that took

6

hold in the 1980s and 1990s.” In 1994, that movement

led to significant revision of the ESEA by the

Improving America’s Schools Act (IASA), Pub. L. No.

103-382, 108 Stat. 3518 (1994). The IASA’s statement

of purpose noted the “particularly great” needs of

“children in our Nation’s highest-poverty schools,

children with limited English proficiency, children of

migrant workers, children with disabilities, Indian

children, children who are neglected or delinquent, and

young children and their parents who are in need of

family-literacy services.” Jd. § 1001(b)(3). All children,

Congress declared, can master challenging content. /d.

§ 1001(c)(1). IASA therefore required math and

language arts standards to be used as accountability

measures in state tests. 7d. § 1111(3).

The standards-based reform movement made its

most visible mark with the 2001 reauthorization of

ESEA, also known as the No Child Left Behind Act

(NCLB), Pub. L. No. 107-110, 115 Stat. 1425 (2002).* As

this Court noted in Horne v. Flores, NCLB sought to

“raise the level of education nationwide” by, among

* See, e.g., Natalie Gomez-Velez, Public School Governance and

Democracy: Does Public Participation Matter? 53 VILL. L. Rev. 297,

306 (2008).

* See Lauren B. Resnick et al., Standards-Based Reform: A

Powerful Idea Unmoored, in Improving on No Child Left Behind

103 (Richard D. Kahlenberg ed., 2008) (“No Child Left Behind is

the current expression of a twenty-year drive to use a ‘standards

strategy’ to steer American education toward higher levels of

achievement and greater equity.”); see also Broken Systems,

Broken Duties: A New Theory For School Finance Litigation, 94

MARQ. L. REV. 1195, 1197 (Summer 2001) (NCLB “brought the

concept of standards-based reform to center stage”).

7

other things, “requiring States receiving federal funds

to define performance standards and to make regular

assessments of progress toward the attainment of those

standards.” 557 U.S. 433, 461 (2009). No longer could

tepid expectations or poor progress for any subgroup be

obscured by school-wide or district-wide averages.

Instead, SEAs like the Department were tasked with

reviewing disaggregated data to ensure that each

subgroup is progressing towards proficiency. Pub. L.

No. 107-110 § 111 10h 1C). NCLB’s original goal was

that all students—-including those in the various

subgroups—would achieve proficiency by 2013-14,

although that ambitious target was subsequently

revised.”

ESEA thus evolved to function as a comprehensive,

national, integrated school improvement system. When

a State submits its Plan in exchange for ESEA funding,

that Plan must coordinate the expectations of

approximately a dozen federal] statutes, including

IDEA. 20 U.S.C. § 6311(a)(1)(B).° Under the changes

* When it became clear that an overwhelming majority of school

districts were not going to meet this goal, the United States

Department of Education began to waive it in exchange for states

agreeing to certain conditions. See Derek W. Black, Federalizing

Education by Warver? 68 VAND. L. Rev. 607, 613-14 (2015).

* Other programs that must be coordinated in a State plan include:

the Rehabilitation Act. of 1973 (20 U.S.C. §§ 701 et seq.), the Carl

DD. Perkins Career and Technical Education Act of 2006 (20 U.S.C.

§§ 2301 et seq.), the Workforce Innovation and Opportunity Act (29

U.S.C. §§ 3101 et seq.), the Head Start Act (42 U.S.C. §§ 9831 e¢

seq.), the Child Care and Development Block Grant Act of 1990 (42

U.S.C. §§ 9858 et sey.), the Education Sciences Reform Act of 2002

(20 U.S.C. §$§ 9501 ef seq.), the Education Technical Assistance Act

8

implemented through NCLB and successive legislation,

federally funded educational programs are thus

intended to raise the bar for all students and

subgroups. The details of the process, however, are

entrusted to the States.

Background and implementation of the IDEA.

In contrast to ESEA’s systemic focus, the primary goal

of the IDEA is to provide a FAPE to individual

students with disabilities. As this Court noted in Board

of Education of the Hendrick Hudson Central School

District v. Rowley, at the time the Act was adopted,

Congress found that nearly one million students with

disabilities were excluded from public school outright,

while over half of the nation’s disabled students were

“receiving an inappropriate education.” 458 U.S. 176,

189 (1982) (citing 89 Stat. 774, note following § 1401).

Thus, at its inception, IDEA was designed to provide

access to the schoolhouse for students who were

excluded outright, along with a basic floor of

educational opportunity. Jd. at 198-200. This access

was then to be made meaningful through “specially

designed instruction” and associated services. Jd. at

201; see also 20 U.S.C. § 1401. The centerpiece of the

IDEA’s promise of a FAPE to students with disabilities

is the LEP.

of 2002 (20 U.S.C. §§ 9601 et. seq.), the National Assessment of

Educational Progress Authorization Act (20 U.S.C. §§ 9621 et seq. ),

the McKinney-Vento Homeless Assistance Act (42 U.S.C. §$§ 11301

et seq.), and the Adult Education and Family Literacy Act (29

U.S.C. §§ 3271 et seq.).

9

Prior to 1990, IDEA (then the Education of the

Handicapped Act)’ emphasized the right of individual

students to educational access and appropriate services

through an IEP. See Pub. L. No. 94-142 §$3(c), 89 Stat.

773 (“It is the purpose of this Act to assure that all

handicapped children have available to them within

the time periods specified in section 612(2)(B), a free

appropriate education which emphasizes special

education and related services defined to meet their

unique needs.”). The 1975 Act mandated a written IEP

for all disabled students with specific content

requirements. It likewise obligated SFAs to establish

“guaranteed procedural safeguards,” including a

complaint. process and hearing rights. Jd. § 615.

Subsequent amendments to IDEA not only

expanded LEP requirements for individual students,

but also added elements of standards-based reform and

data-driven accountability. Many of those changes

mirror the evolution of the ESEA’s expectations for

State Plans. In 1997, for example, Congress found that

IDEA implementation had “been impeded by low

expectations, and an insufficient focus on applying

replicable research on proven methods of teaching and

learning for children with disabilities.” IDEA

Amendments of 1997, Pub. L. No. 105-17, 111 Stat. 37

(1997). This language echoed Congressional findings in

the 1994 ESKEA reauthorization: “Research clearly

shows that children, including low achieving children,

‘The Education of All Handicapped Children Act, Pub. L. No. 94-

142, 89 Stat. 773, was adopted in 1975. It was reauthorized in

1990, at which time it was renamed the Individuals with

Disabilities Education Act. See Pub. L. No. 101-476, 104 Stat.

1142.

10

can succeed when expectations are high and all

children are given the opportunity to learn challenging

material.” Improving America’s Schools Act of 1994,

Pub. L. No. 103-382 §1001, 108 Stat. 3518 (1994).

Building on the groundwork of IASA, the 1997

IDEA revisions added a requirement of performance

goals and indicators, and required that students with

disabilities be included in state assessments. IDEA

Amendments of 1997, Pub. L. No. 105-17, 111 Stat. 37

(1997); see also Forest Grove Sch. Dist. v. T_A., 557 U.S.

230, 240 (2007) (stating that the 1997 amendmerts

were “intended to place greater emphasis on improving

student performance”) (quoting S. Rep. No. 105-17, at

5 (1997)).

The 2004 IDEA amendments again included both

provisions designed to benefit individual students as

well as revisions aligned with NCLB accountability.

For individual students, among other things the 2004

amendments expanded the requirements for transition

services.” To drive systemic change, IDEA 2004

provided for enhanced State efforts on “improving

educational results and functional outcomes for all

children with disabilities” and gave the United States

Department of Education more enforcement options.

Individuals with Disabilities Education Improvement

Act of 2004, Pub. L. No. 108-446, § 616, 118 Stat.

* Under IDEA 2004, the first LEP created after the child is sixteen

must include post-secondary goals based on age-appropriate

transition assessments and should identify the services the

student needs to reach those goals. Individuals with Disabilities

Education Improvement Act of 2004, 108 Pub. L. No. 446, 118 Stat.

2647 (2004) (“IDEA 2004”).

11

2734-36 (2004). States receiving IDEA funds submit

State Performance Plans (SPPs) to the United States

Department of Education’s Office of Special Education

Programs (OSEP). 20 U.S.C. § 1416(b\(1\(A).

In July 20138, OSEP announced a change in which

the SPP model would integrate outcomes data into the

compliance monitoring that was the hallmark of SPP

reporting. Starting in 2013-14, districts and BOCES®

would receive both compliance scores (based on IDEA

procedural compliance data) and outcome scores (based

on assessment results). This system of “Results Driven

Accountability” would include, for example, scores

reflecting the percentage of students with disabilities

who score at a basic level or above on the National

Assessment of Educational Progress. The SPP must

also include a State Systemic Improvement Plan (SSIP)

that is specifically focused on improving achievement

outcomes for students with disabilities.’” Like ESEA,

* Generally, primary responsibility for providing educational

services to students with disabilities is entrusted to school

districts, which function as Local Education Agencies under

federal law. Llowever, some smaller Colorado school districts have

joined to create boards of cooperative education services (BOCES)

that oversee and implement special education programs. Colorado

uses the term “Administrative Unit” to refer to the legal entity

(schoo! district, BOCES, or state Charter School Institute) that

bears fiscal and administrative responsibility for special education

services. COLO. REV. STAT. §§22-20-103(1), 106(1).

Colorado submitted its SSIP to the United States Department of

Education in April of 2015. See Colo. Dep’t of Educ., State Systemic

Improvement Plan Phase 1 (April 1, 2015),

http://tinyurl.com/hdnb906; see also Colo. Dep't of Educ., State

Systemic Improvement Plan Phase 2 (April 1, 2016),

http://tinyurl.com/zvre87x.

12

IDEA thus now specifies certain requirements designed

to drive systemic improvement at the State level.

In contrast to the substantial changes in data

reporting, in the years since this Court decided Rowley,

the statute’s FAPE definition remains untouched,

although Congress has expanded some procedural and

substantive [EP requirements. See, e.g., Resp. Br. 5.

The evolution of IDEA thus reflects more than ever

“the legislative conviction that adequate compliance

with the procedures prescribed would in most cases

assure much if not all of what Congress wished in the

way of substantive content in an IEP.” Rowley, 458

U.S. at 206.

SUMMARY OF ARGUMENT

In an attempted end-run around stare decisis,

Petitioner incorrectly suggests that the IDEA’s

definition of a FAPE was implicitly modified by the

federal trend towards standards-based accountability.

Petitioner blurs the lines between two distinct

statutory functions by suggesting that amendments to

SEA altered the judicial review standard for

‘ndividual FAPE claims under IDEA. There is a process

to hold schools and districts responsible for failure to

meet the expectations of standards-aligned

accountability, but it 1s not through individual student

IDEA litigation. Moreover, because IDFA is a funding

statute, its conditions must be expressed

unambiguously. The legislative history of amendments

to ESEA and IDEA is now, just as it was in 1982, “too

thin a reed on which to base an interpretation of the

Act.” Id. at 204 n.29.

13

Petitioner suggests that without judicial

intervention, students with disabilities in Colorado and

clsewhere in the Tenth Circuit will receive a lesser

education than those in other places. Petitioner’s

charge ignores that the content of academic standards

is entrusted to the States, and Colorado has adopted

ambitious and comprehensive standards that are

entitled to deference.

Petitioner and the Federal Government seek to

revise this Court’s requirement that an IEP be

developed in accordance with the IDEA’s procedural

requirements and be “reasonably calculated to enable

the child to receive educational benefits,” Jd. at 207, by

inserting various adjectives. Neither proposal will

fundamentally change the LEP process and content

requirements, but each adds an ambiguity to IEP

scrutiny that leaves the process fundamentally

unworkable. Moreover, Petitioner’s hindsight focus on

educational outcomes to assess IEP sufficiency is

misplaced. Determining whether an IEP is “reasonably

calculated” is an ex ante judgment, not an ex post

exercise. The Rowley standard should remain intact.

14

ARGUMENT

1. IDEA is part of a body of education funding

statutes that work in concert, that can only

impose duties unambiguously, and that

entrust the details of implementation to the

States.

A. The IDEA must be understood within the

larger context of federal education policy.

The ESEA forms the core of federal education

policy, but Congress has also passed a number of laws

targeting student populations with particularized

needs. Some of those laws have been incorporated

directly into ESEA—for example, the 1968 Bilingval

Education Act became Title VII of ESEA. Pub. L. No.

90-247 §§ 701-07, 81 Stat. 783 (1968). Other statutes

are codified separately. In 1975, Congress adopted the

Education for All Handicapped Children Act, Pub. L.

No. 94-142, 89 Stat. 773 (1975), which later became the

IDEA, Pub. L. No. 101-476, 104 Stat. 1103 (1990).

Subtitle B of 1987’s Stewart B. McKinney Homeless

Assistance Act targets educational programming for

homeless children. See Pub. L. No. 100-77, §§ 721-25,

101 Stat. 482, 525-28 (1987) (codified at 42 U.S.C.

§ 11431-35). State Educational Agencies like the

Department must develop a State Plan that

“coordinatel|s|” the mandates of a number of federal

statutes, including the IDEA. See 20 U.S.C.

§ 6311(a)(1)(B).

Petitioner cites the 2004 amendments to the IDEA

as evidence for the claim that school district obligations

to students with disabilities are different than they

15

were at the time this Court decided Rowley. Pet. Br. 39.

This misunderstands the paradigm shift of NCLB.

Students with disabilities were but one of a number

of subgroups who were underperforming (that is, “left

behind”) at the time NCLB was enacted and who

Congress intended to assist. For example, English

language learners were targeted by NCLB provisions

that added the English Language Acquisition,

Language Enhancement, and Academic Achievement

Act to Title III of the ESEA. Pub. L. No. 107-110,

$§ 3101-11, 115 Stat. 1425, 1609 (2002) (codified at 20

U.S.C. §§ 6811-94). Those provisions required States to

ensure that such students “attain English proficiency,

develop high levels of academic attainment in English,

and meet the same challenging State academic content

and student academic achievement standards as all

children are expected to meet.” 20 U.S.C. § 6812(1)

(2002). Other provisions likewise targeted “children

and youth in local, tribal, and State institutions for

neglected or delinquent children and youth” so that

those students would “have the opportunity to meet the

same challenging State academic standards” as their

peers. Pub. L. No. 107-110, § 1401(a}(1), 115 Stat. 1425

{2002) (codified at 20 U.S.C. § 6421(a)(1)). Similar

language was added regarding education for homeless

children. Jd. § 721 (requiring that State plans describe

how homeless children “will be given the opportunity to

meet the same challenging state academic standards

all students are expected to meet”).

Contrary to Petitioner’s argument, the notion that

the NCLB’s standards-based accountability implicitly

amended IDEA in ways not specified by Congress is

untenable. NCLB raised standards, but the idea that

16

high standards and data-driven accountability mean

something different for students with disabilities than

for other subgroups cannot be reconciled with the letter

or spirit of ESEA.

B. Courts cannot infer an arnmendment to

IDEA; Congress must _ speak

unambiguously.

IDEA is a funding statute rooted in “cooperative

federalism.” Schaffer ex. rel. Schaffer v. Weast,546 U.S.

49, 52 (2005). It leaves to the States “the primary

responsibility for developing and executing educational

programs” for disabled students, although it “imposes

significant requirements to be followed in the discharge

of that responsibility.” Rowley, 458 U.S. at 183.

Because it is a funding statute, the Act cannot “impose

(al burden upon the States unless [Congress] does so

unambiguously.” Jd. at 190 n.11.

Congress has not done so as to the IDEA. That

statute defines a FAPE as “special education and

related services that (A) have been provided at public

expense under public supervision and direction, and

without charge; (B) meet the standards of the State

educational agency; (C) include an appropriate

preschool, elementary school, or secondary school

education in the State involved; and (D) are provided in

conformity with the individualized education program

required under [20 U.S.C. § 1414(d)|.” 20 U.S.C.

§ 1401(9). As this Court noted in Rowley, the definition

functions “[a|lmost as a checklist for adequacy under

the Act.” 458 U.S. at 189.

17

That “checklist” has never been amended. This

Court held in Rowley that any substantive standard

describing the level of education required for disabled

students was “{njoticeably absent” from the statute. /d.

Congress was presumed to be aware of this holding

when it reauthorized and amended IDEA in 1997 and

2004. See Lorillard v. Pons, 434 U.S. 575, 580 (1978)

(“Congress is presumed to be aware of an

administrative or judicial interpretation of a statute

and to adopt that interpretation when it re-enacts a

statute without change.”). Absent clear action by

Congress, there is no basis for reading new terms into

the statute.

Although Petitioner contends that post-Rowley

amendments to IDEA gave rise to a substantive

standard that did not exist when that case was decided,

he cites no specific Congressional action in support of

the argument. Rather, he suggests that an enhanced

level of “educational benefits” is implied by the infusion

of standards-based reform into ESEA. Pet. Br. 26-29.

Such an implication—even if it existed—-is insufficient

under a federal funding statute. See Arlington Cent.

Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296

(2006) (holding that IDEA did not “furnish[ | clear

notice” that one of the obligations of the Act “is the

obligation to compensate prevailing parents for expert

fees”); Rowley, 458 U.S. at 204 n.26.

This case thus meaningfully differs from West v.

Gibson, 527 U.S. 212 (1999), which Petitioner cites for

the proposition that amendments to 42 U.S.C. § 1981

implicitly gave the EEOC authority to award

compensatory damages as an “appropriate” remedy

under Title VII of the Civil Rights Act of 1964. Pet. Br.

18

35. Title VII is not a funding statute, but was adopted

under Congress’ Commerce Clause authority. See Heart

of Atlanta Motel, Inc. v. United States, 379 U.S. 241

(1964) (concluding that the Commerce Clause provides

Congress with authority to enact provisions of the Civil

Rights Act of 1964). Gibson thus is of no relevance

where Congress’ exercise of authority is under the

Spending Clause. Cf. Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 16-18 (1981) (explaining the

difference between a civil rights statute enacted under

§ 5 of the Fourteenth Amendment and one reflecting

the terms of a “contract” for the receipt of funds).

Nor can the Petitioner or the Federal Government

properly find an implied amendment in carefully

selected statements from legislative history. See, e.g.,

Pet. Br. 28—29: U.S. Amicus Br. 21-23. Just as such

statements were “too thin a reed on which to base

interpretation of the Act” in 1982, Rowley, 458 U.S. at

204 n.26, they are insufficient here. Congress’ clear

choice to leave the statutory definition of a FAPE

untouched speaks louder than the aspirational! remarks

of individual legislators.

C. Educational standards-setting is entrusted

to State governments and managed through

accountability systems, not lawsuits.

It is axiomatic that the details of educational policy

are reserved to State governments under the Tenth

Amendment, and public education is a state and local

function, even when partially funded using federal

funds that impose general conditions. The Federal

Government contends that absent court intervention,

Colorado schoo! districts will essentially be “told that

it is perfectly fine to aim low.” U.S. Amicus Br. 36. But

19

it is the States, not Congress or the courts, that develop

and implement specific standards. As this Court noted

in Rowley, “Congress’ intention was not that the Act

displace the primacy of States in the field of education

but that States receive funds to assist them in

extending their educational systems to _ the

handicapped.” Rowley, 458 U.S. at 208.

Nor is there any evidence that Colorado or its school

districts have “aimed low.” See COLO. REV. STAT. § 22-7-

1005 (requiring the Colorado Board of Education to

“le]nsure that [Colorado’s] standards are comparable in

scope, relevance, and rigor to the highest national and

international standards that have been implemented

successfully”). Likewise, the States supporting

Petitioner as amici can set whatever standard they

choose so long as it exceeds the floor set by federal law.

Throughout the evolution of standards-based

education reform, Congress has expressed its

conviction that state and local autonomy is an essential!

component of raising the bar for all student subgroups.

The LASA, for example, declares that “[djecentralized

decisionmaking is a key ingredient of systemic reform.

Schools need the resources, flexibility, and authority to

design and implement effective strategies for bringing

their children to high levels of performance.” Pub. L.

No. 103-382 § 1001(c)(8).

This Court emphasized the same principle with

regard to NCLB in Horne v. Flores:

NCLB marked a dramatic shift in federal

education policy. It reflects Congress’ judgment

that the best way to raise the level of education

nationw.d* is by granting state and local

20

officials flexibility to develop and implement

educational programs that address local needs,

while holding them accountable for the results.

NCLB implements this approach by requiring

States receiving federal funds to define

performance standards and to make regular

assessments of progress toward the attainment

of those standards.

557 U.S. at 461. And expanded local autonomy is the

calling card of amendments reflected in 2015’s Every

Student Succeeds Act (ESSA), Pub. L. No. 114-95,

§ 1111, 129 Stat. 1802 (2015).

The conditions expressed by Congress in its various

enactments emphasize IDEA’s core purpose as an

educational access statute, setting a floor of

opportunity for a population with a history of exclusion

from public education. Congressional expressions of

intent regarding the use of federal funds—under IDEA,

NCLB, and ESSA—reaffirm a commitment to state and

local flexibility. The States should be trusted to fulfill

the role that Congress has given them.

And Colorado has proven worthy of that trust.

Colorado’s commitment to high expectations for all

students is not dependent on the legal standard for

'' See Kimberly Jenkins Robinson, No Quick Fix for Equity and

Excellence: The Virtues of Incremental Shifts in Education

Federalism, 27 STAN. L. & POL’Y REV. 201, 242 (2016) (“ESSA

represents a backlash against the substantial expansion of the

federal role in education.”); see also Jessica Bulman-Pozen,

Executive Federalism Comes To America, 102 VA. L. REV. 953, 990

(June 2016) (stating that the ESSA “curbs federal executive

supervision of state education policy going forward”).

21

reviewing IEPs; rather, it is based on sound

accountability systems designed to raise the bar for all

student subgroups. To implement the goals of the

ESEA and NCLB, SEAs like the Colorado Department

of Education implement an accountability system that

“grades” school districts and individual schools based

on multiple metrics. The primary metric is academic

achievement (both for all students and for each

subgroup), as measured by proficiency on the annual

assessment. Accountability systems also evaluate

indicators such as high school graduation rates and the

percentage of English language learners making

progress in English proficiency. 20 U.S.C. §6311(c4)."”

The State accountability system enables meaningful

differentiation between schools “for all students and

subgroups of students” and enables identification of

any school “in which any subgroup of students is

consistently underperforming.” Jd. § (c)(4)(C)(iii). It is

through this accountability monitoring—not through

individual student litigation—that States like Colorado

ensure that schools and districts are raising the floor of

educational opportunity for all subgroups, including

students with disabilities. If students with disabilities

are failing to achieve academically, this accountability

process is designed to identify it.

If a State fails to comply with the ESEA’s

accountability requirements, the U.S. Department of

Education has a range of enforcement options available

to it. These include issuing a cease and desist order, 20

'? Amendments under the ESSA revised state accountability

requirements in a number of respects, but left untouched the core

mandates of high standards, regular assessments, and state-

monitored accountability.

22

U.S.C. § 1234e, entering into a compliance agreement

with the SEA, id. § 1234f, and suspending or

withholding all or a portion of the State’s Title I, Part

A programmatic funds, id. § 1234d. The States have

similar enforcement authority, including the ability to

withhold a district’s Title I, Part A funds. See, e.g., id.

§ 1232c.

Specific to disabled students, the Department

analyzes data disaggregated in a variety of ways,

including by disability, by site, and even by grade, so

that it can identify schools or districts in need of

technical assistance. The Department provides

guidance to schools in aligning IEPs with state

academic content standards.’ It is through this process

that the State ensures that schools assist students with

disabilities—and other student subgroups —to reach

the high standards adopted under NCLB. Rather than

promoting this goal, individual student litigation such

as that proposed by Petitioner diverts scarce resources

and places critical education policy decisions in the

hands of judges instead of educators.

'S See, e.g., Colo. Dep’t of Educ., Writing Standards-aligned

Advanced Learning Plans (ALPs) and Individualized Education

Programs (IEPs): A Supplemental Guidance Document for

Designing Effective Formal Educational Plans (Sept. 2014;

Updated March 2016), http://tinyurl.com/hrdjxk7.

23

Il. Petitioner and the Federal Government

propose a standard that will impede

collaboration between schools and families

and that is fundamentally unworkable.

As other amici have noted, setting high expectations

for students with disabilities has been determined to be

in the best interests of students and communities, and

is standard practice in 21" century education. See Nat’!

Ass'n of State Dirs. Of Special Educ. Amicus Br. 6—7.

But the question in this case is whether a specific

additional obligation should be judicially grafted onto

the IDEA; specifically, one that invites reviewing

judges to second-guess educators using ambiguous

terms. Because the proposed standard would interfere

with collaboration between schools and families, and is

unworkable, the Court should decline to add such a

threshold.

A. The proposed standard of review threatens

the school and family collaboration that is

the hallmark of IEP development.

The IEP development process is designed to be a

collaborative effort between schools and families. In

Schaffer v. Weast, this Court cited the “cooperative

process that [IDEA! establishes between parents and

schools” as the “core of the statute.” 546 U.S. at 53.

Parents play a “significant role” in the process and

function as formal members of the IEP team. /d. (citing

20 U.S.C. § 1414(d)(1)(B)). The cooperative process

ends when parents pursue judicial intervention, and a

precipitous trip to the courthouse “run|s| counter to

Congress’ view that the needs of handicapped children

are best accommodated by having the parents and the

local educational agency work together to formulate an

24

individualized plan for each handicapped child’s

education.” Smith v. Robinson, 468 U.S. 992, 1012

(1984).

The legal framework for resolving special education

disputes repeatedly emphasizes communication and

consensus over litigation. SEAs like the Department

must offer mediation services and have a complaints

process. 20 U.S.C. § 1415(b)(5)(6). The 2004

amendments to IDEA require districts to respond to

parent complaints by providing a written description of

the reasoning, options considered, and factors used in

reaching an IEP decision. Jd. § 1415(c)(2)(B)()(1). If a

dispute thereafter develops, Congress has directed that

any due process complaint notice must contain “a

description of the nature of the problem” and “a

proposed resolution of the problem to the extent known

and available.” Id. § 1415(b)(7)(A)Gi)(TV). Colorado’s

due process rules require that within fifteen days of

receiving a parent's due process complaint, the

Administrative Unit must convene a_ resolution

meeting between parents and appropriate members of

the IEP team. See Colo. Dep’t of Educ., State Level

Complaint Procedures at 2, http://tinyurl.com/hp4ze9g.

“The purpose of the resolution meeting is for the parent

of the child to discuss” the complaint so that the

Administrative Unit can try to resolve it. 1 CODE COLO.

REGS. § 301-8(7.5)(d)(1)(B).

Adjusting the standard as Petitioner and the

Federal Government propose is unlikely to assist

students but will most certainly increase litigation and

discourage the family-school cooperation that is at the

heart of the IDEA. A_ nebulous, aspirational

articulation of a legal standard—especially one not

25

rooted in the language of the statute—invites families

to believe that there are somehow greater remedial

prospects at the courthouse than within the education

system, and thereby discourages cooperation and

collaboration.

B. The proposed standard is unworkable.

Colorado has nearly 900,000 public school students,

approximately ten percent of whom are receiving

special education services.’* The suggestion that courts

should judge the sufficiency of those students’ IEPs

based on nebulous modifiers and on an after-the-fact

review of educational outcomes, rather than adherence

to IDEA’s statutory requirements, risks an increase in

litigation and a breakdown in the collaborative process

that is the hallmark of IDEA. Likewise, the legal

standard suggested by the Petitioner would impair the

ability of SEAs like the Department to resolve disputes

at the mediation, state complaint, or due process

hearing level.

1. The proposed standard is ambiguous.

The notion that an “appropriate” education for

students with disabilities is one that provides

“substantially equal opportunities to achieve academic

success, attain self-sufficiency, and contribute to

society,” Pet. Br. 40, is laudable in purpose, yet

unworkable as a legal standard. It would invite courts

to “imposle| their view of preferable educational

* Sve Colo. Dep't. of Educ, Colorado Education Fucts and Figures

(Oct. 2016), http://tinyurl.com/by3ag3n; Colo. Dep't. of Educ.,

Students with Disabilities Birth 21 (2015 Ss

http://tinyurl.com/zpl8les.

26

methods” upon the States, in direct contravention of

the principles articulated in Rowley. 458 U.S. at 207.

Any proposed “heightened standard” for IEP

development, without specific grounding in IDEA’s

tangible expectations, risks confusing those educators

who work to develop [IEPs every day. Worse still, it

invites an explosion in special education litigation as

lawyers and judges wrestle to define the boundaries of

a judicially crafted statutory change.

Colorado has responsibilities to all students,

including a variety of populations that have struggled

to achieve. In fact, IDEA is not the only statute in

which the State is tasked with providing a FAPE to an

at-risk student subgroup. In the Stewart B. McKinney

Homeless Assistance Act, Congress mandated that a

FAPE be provided to homeless children:

Mach state educational agency shall ensure that

each child of a homeless individual and each

homeless youth has access to the same free,

appropriate public education, including a public

preschool education, as provided to other

children and youths.

Pub. L. No. 100-77, § 721, 81 Stat. 783 (1987) (codified

as amended at 42 U.S.C. § 11431) (emphasis added).

Unlike IDEA, the McKinney-Vento Act" does not

provide a checklist definition of the term “free,

appropriate public education.” It also does not contain

' The Act’s name changed with a 2000 reauthorization. See

McKinney-Vento Homeless Assistance Act, Pub. L. No. 106-400,

114 Stat. 1675 (2000).

27

an IEP process and related procedural safeguards, so

that courts have not been called upon to interpret the

term. In Colorado, the Board and the Department are

responsible for creating State Plans that incorporate

compliance with both IDEA and McKinney-Vento.

Although the statutes are vastly different, the State of

Colorado cannot administer them in such a way that

suggests that the assurance of a FAPE for students

with disabilities confers something greater than does a

FAPE guarantee for a homeless student. In fact, if the

Court changes the FAPE standard under IDEA, it risks

upending the balance that Colorado has struck trying

to meet the needs of all students.

Petitioner suggests that student expectations are

exclusively defined by the legal standard for judicial

review. Absent correction, he asserts, the IEPs of

students with disabilities who live in the Tenth Circuit

will be out of syne with ESEA’s high expectations for

all student groups. See, e.g., Pet. Br. 29 (“The Tenth

Circuit’s adherence to the just-above-trivial standard

runs headlong into the IDEA’s and ESEA’s demands

for academic accountability and achievement.”). Not so.

Unlike the Rowley standard, which is based on the

IDEA’s text, neither Petitioner’s nor the Federal!

Government’s proposed standard derives from the

statute—they would instead be entirely judicial

creations. See Resp. Br. 49-51. Rather than a standard

applied when teachers, specialists, and families join

together to develop an LEP, Petitioner seeks to import

from the outset the standard of review that a judge

applies when the cooperative process of IEP

development has already failed, when well-intentioned

28

families and caring educators have intractably locked

horns. This Court should rejeet that invitation.

The revised standards of review proposed by the

Petitioner and the Federal Government insert a level

of ambiguity and subjectivity into the review of an IEP

that will create uncertainty and invite litigation.

Through its dispute resolution program, the

Department can evaluate an IEP to see, for example, if

it articulates challenging yet attainable goals and

reflects a research-based pedagogy and individual

services reasonably calculated to allow a student to

“advance appropriately towards attaining [those

goals|.” See 20 U.S.C. § 1414(d)(1A)G). It is far less

likely that the Department can mediate a dispute as to

whether an IEP “aims” to provide “substantially equal”

opportunities,” Pet. Br. 40 or “provides the child an

opportunity to make significant progress in light of his

capabilities,” U.S. Amicus Br. 17.

Effective administration of the IDEA requires that

the Department operate under an objective standard.

Petitioner's proffered change in the baseline set by

Rowley raises the substantial risk that an LEP that is

fully compliant with IDEA’s content requirements and

“reasonably calculated” at its inception would

nonetheless be labeled infirm upon judicial review—

based on a subjective standard disconnected from the

statute’s plain language. An ambiguous review

standard thus reinforces the notion that there may be

something to be gained under a subjective standard

applied at the courthouse that is not available from

educators.

29

2. The legal sufficiency of an IEP should

not be judged in hindsight based on

outcomes.

Petitioner and the Federal Government invite

judges to Monday-morning quarterback" the quality of

an IEP based on the student’s academic outcome,

rather than on whether there was faithful adherence to

a process that this Court recognized will “in most cases

assure much if not all of what Congress wished in the

way of substantive content in an IEP.” Rowley, 458

U.S. at 206. Yet whether an IEP is “reasonably

calculated” to provide educational benefit is an

assessment that must be made at the time the IEP is

created, based on the information available to the

district at that time. Year-end achievement data for a

particular student no more determines the adequacy of

that year’s IEP than does a surgical outcome determine

whether an operating physician met the standard of

care. And educational growth is a product of myriad

factors, only some of which can be controlled or

adjusted through an IEP.

Although Petitioner claims to recognize that the obligation to

provide a FAPE is “not guaranteed to produce any particular

outcome,” Pet. Br. 49, it is precisely because the student in this

case did not progress much that the sufficiency of his IEP is under

attack. Jd. at 34. Petitioner’s amici States likewise misstate the

standard, asserting that an IEP is judged by what it “confers,” not

by what it is “reasonably calculated” to confer. See also Del., Mass.,

& N.M. Amicus Br. 3-4 (complaining that if the Rowley standard

“requires only more than de minimis progress ... then as a nation

we have not [addressed Congress’ purpose in adopting IDEA]”)

(emphasis added).

30

This Court’s review of the Equal Education

Opportunities Act requirement that a State take

“appropriate action” to overcome language barriers is

instructive. In Horne v. Flores, this Court held that

“subpar performance” was not enough to suggest that

the State of Arizona had failed to take “appropriate

action.” 557 U.S. at 468 (holding that appropriate

action “does not require the equalization of results

between native and non-native speakers on tests

administered only in English”). Likewise here, an after-

the-fact review of educational outcome cannot dictate

sufficiency of the IEP process.

For over 30 years, Congress has defined the

education system’s obligations to students with

disabilities in terms of carefully crafted procedural and

substantive requirements. Those provisions ensure

that each student with disabilities is considered

individually to ensure that the right goals are set and

services arranged to allow that student to have the

same chance to succeed as his peers. But even the best

educational judgments can miss the mark, so the IDEA

likewise requires that the school revisit the [IEP at

least annually. 20 U.S.C. § 1414(d)4)A). This

cycle—plan, implement, assess, and revise— happens at

a macro level through the ESEA State Plan and at a

micro level in millions of LEP meetings all over the

country. It is an iterative, collaborative process

between schools and families.

The IP team must review the child’s IEP

periodically, but not less than annually, to determine

whether the annual goals for the child are being

achieved. The team must consider:

31

e Any lack of expected progress toward the annual

goals and in the general education curriculum,

if appropriate;

e The results of any reevaluation;

¢ Information about the child provided to, or by,

the parents; and

¢ The child’s anticipated needs.

Id. That an IEP produces sub-optimal progress does not

suggest that IDEA was violated,’’ but simply means

that the annual review process will have to do its work.

CONCLUSION

The decision of the Court of Appeals should be

affirmed.

‘’ Although this Court has not been called upon to directly address

the question, the Circuit Courts uniformly recognize that the

appropriateness of an IEP is judged prospectively, not

retrospectively. See, e.g., Roland M. v. Concord Sch. Comm., 910

F.2d 983, 992 (lst Cir. 1990) (“An IEP is a snapshot, not a

retrospective. In striving for ‘appropriateness,’ an IEP must take

into account what was, and was not, objectively reasonable when

the snapshot was taken, that is, at the time the IEP was

promulgated.”); K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 808

(8th Cir. 2010) (same); see also Adams v. Oregon, 195 F.3d 1141,

1149 (9th Cir. 1999) (“[W)e examine the adequacy of [the IEPs} at

the time the plans were drafted.”); Carlisle Area Sch. v. Scott P.,62

F.3d 520, 530 (3d Cir. 1995) (holding that an IEP must be judged

prospectively from the time of its drafting); R.E. v. N.Y.C. Dep’t of

Educ., 694 F.3d 167, 185—86 (2d Cir. 2012) (same). This “at the

time of drafting” approach is also consistent with this Court's

expectation that an IEP be reasonably calculated.

32

Respectfully submitted,

CYNTIUA H. COFFMAN JULIE C, TOLLESON

Attorney General First Assistant Attorney

General

FREDERICK R. YARGER

Solicitor General Office of the Colorado

Counsel of Record Attorney General

1300 Broadway

GLENN E. ROPER 10th Floor

Deputy Solicitor General Denver, Colorado 80203

Fred. Yarger@coag.gov

(720) 508-6186

Counsel for Amici Curiae Colorado State Board of

Education and Colorado Department of Education

DECEMBER 2016