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

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No. 15-827

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Supreme Court of the United States

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

AN!) NEXT FRIENDS, JOSEPH F.. AND JENNIFER F..

Petitioner,

DOUGLAS COUNTY SCHOOL Disrrict RE-1.

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF FOR THE COUNCIL OF THE

GREAT CITY SCHOOLS AS AMICUS CURIAE 1N

SUPPORT OF RESPONDENT

JULIE WRIGHT HALBERT JOHN W. BORKOWSKI

COUNCIL OF THE GREAT Counsel of Record

CITY SCHOOLS HtUSCH BLACKWELL LLP

1331 Pennsylvania Ave., 120 South Riverside Plaza

N.W., Suite L100N Suite 2200

Washington, DC 20004 Chicago, IL 60606

(202) 393-2427 (312) 655-1500

jwh@cgcs.org john. borkowski@

huschblackwell.com

DEREK T. TEETER

MICHAEL T. RAUPP

HUSCH BLACKWELL LLP

4801 Main St., Suite 1000

Kansas City, MO 64112

(816) 983-8000

December 21, 2016

WILSON-EPES PRINTING CO , INC. — (202) 789-0096 - WasHincTon, D. C. 20002

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TABLE OF CONTENTS

Page

pr F Ce oly, ly ene tater ro iV

INTEREST OF AMICUS CURIAE............... hemssbites Ie

SUMMARY OF ARGUMENT ..................... Gala EOS

PE, eidecdevdidedeneseremnstbssiesvimnnes areas simi drcanadiaiees a 6

1 The Existing Statutory Framework

Appropriately Promotes Educational

Opportunities for All Students,

Including Students with Disabilities........... 6

A. “Free Appropriate Public

Kducation” is a term expressly

defined by Congress, and Rowley

appropriately deferred to that

I III iisiicdcscicetsicncersesss ><: 7

B. IEPs are created through an

interactive process involving

students, families, and

III goss. cope stceupistbdretnateressnns OD

C. Congress has strengthened the

requirements for IEPs, thereby

demanding higher expectations for

students with disabilities in the 34

EE SI Be csicnssccescceseecesescdecdins 12

IT.

ITT.

D. Federal statutes, adopted since

Rowley, require states and school

districts to be accountable for the

academic progress of all students,

including students with disabilities ...

Federal Courts are Ill-Equipped to

Second Guess the Complex Educational

Judgments Made Through the IEP

Aen EES RRs Sra tage ae Bae ay

A. The nature and _ degree of

educational progress to be expected

is highly variable because of

differences among students,

variations in state educational

standards, and the number of

relevant domains required to be

ae tht TSE Bee he aN EE beer

B. This court should follow its long

history of deferring to educators’

professional judgment........................

Petitioner's Proposed Standard Is Not

Only Inconsistent with Congress's

Express Intent, But It Also Would Be

I sitiicptconcannindicniomnitenvies

A. Petitioner proposes an unworkable

standard that would require a

subjective evaluation of

educational outcomes ........................-

B. Petitioner’s standard would

increase litigation and result in

increased private placements, both

of which are expensive .................. mo

C. Petitioner's desired changes to the

definition of FAPE come at a time

when public education budgets are

being severely cut, and IDEA has

never been fully funded.......................

D. The Court should allow educators

to maintain their focus on efforts

for student success, not on the

avoidance of litigation .........................

Rati iacindduniiindinabdahebtinniniciitestibestcotein Soot

TABLE OF AUTHORITIES

Page(s)

CASES

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

Dist., Westchester Cnty. v. Rowley,

Se Ae BE ctsactbesinsinbsencsstiolestseddcaie passim

Christian Legal Social Chapter of the Univ. of

California, Hastings Coll. of the Law v.

Martinez,

I I, I i aati 21

C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist.,

613 F.3d 279 (let Cir. 2008).........................088ss 26

Epperson v. State of Arkansas,

Ss i i o cadeinionethinnd 20

isher v. Univ. of Texas at Austin,

579 U.S. , 196 S. Ct. 2196 (2016).................. 20

Gross v. FBL Fin. Services, Inc.,

Ne ee, Se I ocois acc sinsssedeucerssdaccasminus oe 13

Grutter v. Bollinger,

ee i, IED vicnecccciicccsesessssrecectsssetace esmrebes 21

Hazelwood Sch. Dist. v. Ku::imeier,

Be ee I I oi ccd tesdnanacoendocsdnsnecenccanseentens 20

Honig v. Doe,

es Ne CEE sunitchepvireccncsccceskdecrcttiscnihaneigded 10

Indep. Sch. Dist. No. 283 v. S.D.,

88 F.3d 556 (8th Cir. 1996) ............... ee 27

Kucana v. Holder,

558 U.S. 233 (2010) ............. ELE A E EOI Sis SOPROP 5 13

Newark Parents Ass'n v. Newark Pub. Sch.,

547 F.3d 199 (3d Cir. 2008).................ccc0eeeecceeeeee 16

Schaffer v. Weast,

ERE IR RE REET PBT DeMEn Aop RDS Ce 11

Swann v. Charlotte-Mecklenburg Bd. of Ed.,

RRA a I ee Se 20

Wood v. Strickland,

IIE csv udovcosressscncesienssiineintdvanvackibers 20

FEDERAL STATUTORY AUTHORITIES

ee SEE AR EO RE 7

20 U.S.C. § 1411(a)(2)(A)-(B) .e..ee.--. Fuego eet 28

20 U.S.C. § 1412(a)(1)(A) .... occ cccsescsceeseseevseecerseseseeeees 6

ne icc csncanrasescesose lll

20 U.S.C. § 1412(a)(10)(B) ...........cccececscssesseseesceeesesees 12

20 U.G.C. § 141A IOMC) 0onceccceesesecsseccessssecocesosscnes 24

SUT 0 0 BRR sien nis esuinssssdncesevosons 12

20 U.S.C. § 1414(d)(B)(D).....c..cccsecsesseesescesseeeeees noe

20 U.S.C. § 1414(d)(4)(A)........... RISE Diels Jeb 11, 12

Be se, SI icinde sd. scusiccaices cinco Mae van'savaducaiuyinve. 11

Every Student Succeeds Act,

Be ie UE IID tebernccscnsesnsssssspassasones 11, 15, 16, 17

20 U.S.C. § 6311(b)(2)(B) Qa) (ID) ........ eee cece ees 15

20 U.S.C. § 6311(c)(4)(E)Gi)(D.........-..... cc ceeeee eee 15

ig EE I eae eT RT ERT CA TRI Lo 16

Education of the Handicapped Act, Pub. L. No.

ee sca taksadun. .14

Individuals with Disabilities Education Act

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

§ 614, 111 Stat. 81 (1997) (codified at 20

Cg SMa RRM gt pet ke EAGLE Sie amie passim

The No Child Left Behind Act of 2001, Pub. L.

No. 107-110, 115 Stat. 1425

scat ebl Si aa 5 sah ne et lee PR 15, 16, 17

FEDERAL RULES AND REGULATIONS

oi sovicccncssnsaenccts semamnens 15

34 C.F.R. 200.104(b)(3).......... Re ee ee 16

vill

OTHER AUTHORITIES

Jay G. Chambers et al., What Are We

Spending on Special Education

Services in the United States, 1999-

I ai os, scans Sek chastasuenawns

Debra Chopp, School Districts and Families

Under the IDEA: Collaborative in

Theory, Adversarial in Fact, 32 J. Nat’!

Ass’n Admin. L. Judiciary 423 (2012) .......

Michael Leachman et al., Most States Have

Cut School Funding, and Some

Continue Cutting, Center on Budget &

Policy Priorities, June 25, 2016.................

Tonette Salazar, 50 Ways to Test: A look at

state summative assessments in 2014-

15, Education Commission of The

States, November 2014.......................0000...

Julic Rowland Woods, State Summative

Assessments: 2015-16 school year,

Education Commission of the States,

Se aes et

National Center for Education Statistics,

Children and Youth with Disabilities,

inca cc tags vatimincbagchacemsencetpesie tab nds

... 20

INTEREST OF AMICUS CURIAE'

The Council of the Great City Schools (“Council”)

is a coalition of 70 of the nation’s largest urban pub-

lic school systems, 2 and is the only national

! Pursuant to Supreme Court Rule 37.3(a), all parties have

consented to the filing of this brief. Pursuant to Rule 37.6,

amicus curiae certifies that no counsel for a party authored this

brief in whole or in part, and no persons other than amicus

curiae or its counsel made a monetary contribution to the briefs

preparation or submission.

2 Albuquerque Public Schools; Anchorage School District;

Arlington Independent School District; Atlanta Public Schools;

Austin Independent Schoo] District; Baltimore City Public

Schools; Birmingham City Schools; Boston Public Schools;

Bridgeport Public Schools; Broward County Public Schools;

Buffalo Public Schools; Charleston County School District;

Charlotte-Mecklenburg Schools; Chicago Public Schools;

Cincinnati Public Schools; Clark County School District;

Cleveland Metropolitan School District; Columbus City Schools;

Dallas Independent School District; Dayton Public Schools;

Denver Public Schools; Des Moines Public Schools; Detroit

Public Schools Community District; District of Columbia Public

Schools; Duval County Public Schools; E] Paso Independent

School District; Fort Worth Independent School District; Fresno

Unified School District; Guilford County Schools; Hawaii State

Department of Education; Hillsborough County School District;

Houston Independent School District; Indianapolis Public

Schools; Jackson Public Schools; Jefferson County Public

Schools; Kansas City Public Schools; Long Beach Unified School

District; Los Angeles Unified School District; Metropolitan

Nashville Public Schools; Miami-Dade County Public Schools;

Milwaukee Public Schools; Minneapolis Public Schools; New

Orleans Public Schools; New York City Department of

Education; Newark Public Schools; Norfolk Public Schools;

Oakland Unified School District; Oklahoma City Public Schools;

Omaha Public Schools; Orange County Public Schools; The

School District of Palm Beach County; The School District of

Philadelphia; Pinellas County Public Schools; Pittsburgh Public

Schools; Portland Public Schools; Providence Public School

organization exclusively representing the needs of

urban public schools. Founded in 1956 and

incorporated in 1961, the Council serves as the

national voice for urban educators and provides a

forum to share best practices. The Council is

composed of districts with enrollment greater than

35,000 students located in cities with a population

exceeding 250,000. Districts located in the largest

city of any state are also eligible for membership,

based on urban characteristics. The Council’s

member districts have a combined enrollment of over

7.3 million students.

Headquartered in Washington, D.C., the Council

promotes urban education through research, instruc-

tion, management, technology, legislation,

communications, and other special projects. For the

past two decades, the Council’s legislative and legal

staff has participated extensively in congressional

consideration of the Individuals with Disabilities

Education Act Amendments of 1997 and the

Individuals with Disabilities Education Improvement

Act of 2004, as well as development of the attendant

regulations promulgated by the Department of

Education.

The Council has a strong interest in the outcome

of this case, as its member districts implement over

District; Richmond Public Schools; Rochester City School

District; Sacramento City Unified School District; San Antonio

Independent School District; San Diego Unified School District;

San Francisco Unified School District; Santa Ana Unified

School District; Seattle Public Schools; Shelby County Schools

(formerly Memphis City Schools); St. Louis Public Schools; St.

Paul Public Schools; Toledo Public Schools; Tulsa Public

Schools; Wichita Public Schools.

I milhon Individualized Educational Programs

(“IEPs”) on an annual basis. The Council and its

members believe it is vitally important to protect the

collaborative process through which these [EPs are

developed and to promote the educational oppor-

tunity and achievement of all students—those with

disabilities and those without. Maintaining the

Court’s workable interpretation of the statutory

definition of a “free appropriate public education”

(“FAPE”) is critical to these goals.

SUMMARY OF ARGUMENT

While Congress has not changed the statutory

definition of “free appropriate public education”

(“FAPE”) in the 34 years since Board of Education of

Hendrick Hudson Central School District,

Westchester County v. Rowley, 458 U.S. 176 (1982),

the standard established by the Court continues to

be an important part of the national effort to raise

expectations and increase educational opportunities

for students with disabilities.

By adding new requirements for IEPs, Congress

has encouraged school districts to better serve stu-

dents with disabilities. When reauthorizing IDEA in

1997, for example, Congress added various refer-

ences to progress in the [EP requirements, including

how the child’s progress toward meeting annual

goals will be measured, when periodic reports on the

child’s progress will be provided, and a statement of

the special education-related services and supple-

mental aids and services to be used to enable the

child to make progress in the general education

curriculum. But, IDEA does not establish a private

remedy for the failure to ensure any particular

educational outcome or to provide a specific degree of

educational benefit for a student with a disability.

Rather, in a series of separate federal laws since

Rowley, Congress has required states to establish

systematic accountability for the educational

outcomes of all students, including students with

disabilities. As a result of these accountability

systems, along with the strengthened IEP require-

ments from the 1997 and 2004 amendments to IDEA,

educational opportunities for students with disabili-

ties are better now than ever. This makes it

unnecessary to change the Rowley inquiry, which

asks whether an IEP, otherwise meeting all the

statutory and regulatory requirements, is

“reasonably calculated to enable the child to receive

educational benefits[.]” 458 U.S. at 207.

The federal courts, moreover, are ill-equipped to

ascertain what particular level of educational benefit

is appropriate for individual students. Adopting

petitioner's unworkable standard, which, contrary to

Rowley, seeks to define a particular level of educa-

tional benefit required for all students with

disabilities is unnecessary and ill advised, particu-

larly in the face of the statutory changes that have

been made by Congress. During the collaborative

IEP process, parents and professional educators

grapple together with many complex variables

designed to ensure educational benefits are provided

to students. These discussions take into considera-

tion the nature and degree of each student’s

disability (or disabilities), the level of each student's

prior academic achievement, and each state’s distinct

educational standards. In addition, these discus-

sions address multiple other domains including

social, emotional, psychological, behavioral, as well

as medical and health-related issues. In this context,

attempting to determine whether a student would

have “substantially equal opportunities to achieve

academic success, attain self-sufficiency, and contrib-

ute to society” (Pet. Br. 41 n.8) (or whether the

student was likely to make “significant educational

progress’ (Govt Br. 7, 9)) would be an

overwhelmingly complex and highly subjective

judgment. Instead, consistent with Congress’s

decision in adopting and repeatedly amending IDEA,

the courts should continue to guarantee that the

increasingly demanding components of IEPs are in

place and otherwise defer to professional educators’

determinations of the level of educational benefits

that one should anticipate for any particular child.

Across all of the circuits, regardless of the

adjective used by appellate courts to describe

“educational benefits,” Council members strive to

maximize the educational benefits provided to all

students, including those with disabilities, and

petitioners’ proposed standard would redirect those

efforts. Expanding a private remedy for parents of

students with disabilities who are unsatisfied with

the progress achieved by their children in public

schools would undermine the school’s role in IDEA’s

collaborative process. The result would be to

increase both litigation and unilateral private

placements. Both of these actions would divert

significant resources from school districts’ efforts to

educate other students with disabilities and those

without. Such a diversion is particularly problematic

given that Congress has never lived up to its promise

to fund 40 percent of the extra costs associated with

special education. As a result of this failure, the bulk

of special education funding comes from state and

local revenues, but those funding levels also have

declined. Driving up private placements and

encouraging litigation would harm the education of

all students.

Litigating over the right amount of educational

benefit to be expected for individual students with

disabilities is not the best way to improve education.

Rather, educators should be accountable for imple-

menting IDEA’s complex procedural requirements,

including ongoing monitoring, to ensure that a disa-

bled child’s progress is adequate. And, they should

be accountable for the educational outcomes of all

students through mandatory state accountability

systems.

For these reasons, the judgment of the court of

appeals should be affirmed.

ARGUMENT

I. The Existing Statutory Framework

Appropriately Promotes Educational

Opportunities for All Students, Including

Students with Disabilities.

This is a_ statutory-interpretation case.

Specifically, the Court is asked again to decide what

Congress meant when it required the provision of a

FAPE to children with disabilities. 20 U.S.C.

§ 1412(a)(1)(A). IDEA contains an express definition

of FAPE:

The term “free appropriate public education”

means 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;

elementary school, or secondary school

education in the State involved; and

(D) are provided in conformity with the

individualized education program required

under section 1414(d) of this title.

20 U.S.C. § 1401(9).

Moreover, this Court in Rowley has already inter-

preted Congress’s multi-faceted definition of FAPE.

That interpretation should control the outcome of

this case. There is no reason to revisit Rowley, nor

any justification for abandoning the Court’s cogent

statutory analysis.

A. “Free Appropriate Public Education” is a

term expressly defined by Congress, and

Rowley appropriately deferred to that

congressional intent.

Faced with a strikingly similar issue and nearly

identical request, this Court in Rowley declined the

invitation to substitute its own definition of FAPE for

the one adopted by Congress. The standard offered

by petitioner here should fail for the same reasons.

1. In Rowley, this Court determined that

Congress's express definition of FAPE controls. The

student in Rowley offered a critique of Congress's

definition of FAPE similar to petitioner's here,

asserting “that the statutory definition is not

‘functional’ and thus ‘offers judges no guidance in

)

their consideration of controversies involving “the

identification, evaluation, or educational placement

of the child or the provision of a free appropriate pub-

lic education.” Rowley, 458 U.S. at 187.

Rejecting this argument, the Court described

itself as “loath to conclude that Congress failed to

offer any assistance” in defining FAPE, especially

when Congress explicitly defined the term in

question. Jd. Though the definition may tend

“toward the crypt ° rather than the comprehensive,”

“that is scarcely a reason for abandoning the quest

for legislative intent.” Jd. at 188; see also id.

(“Whether or not the definition is a ‘functional’ one,

as respondents contend it is not, it is the principal

tool which Congress has given us for parsing the

critical phrase of the Act.”*).

The Court accurately described the statutory

provision as a “definitional checklist,” identifying the

procedural items that must be accomplished to pro-

vide a FAPE. Id. at 189. The Court also confirmed

that IDEA as a whole was enacted to improve access

to education through the adoption of “procedures

which would result in individualized consideration of

and instruction for each child.” Jd. (internal quota-

tion marks and citations omitted).

2. Petitioner's proposed standard here should be

rejected for the same reasons as the proposed

definition in Rowley. As respondent explains in

3 Thie observation from the Rowley Court is particularly apt,

in light of petitioner’s description of the newly minted standard

as “eminently workable.” Pet. Br. 43.

+In fact, it is difficult to decipher any difference between

petitioner's articulated standard of “substantially equal

opportunity” and “commensurate with the opportunity provided

detail (at 27-37), petitioner's proposed standard

(“substantially equal opportunities to achieve aca-

demic success, attain self-sufficiency, and contribute

to society,” Pet. Br. 41 n.8) finds no support in

IDEA’s text, and certainly none in Rowley.

Trying to tie the new proposed standard to

Rowley, petitioner asserts (at 43) that the

articulation of “opportunities to achieve academic

success, attain self-sufficiency, and contribute to

society” somehow comports with Rowley’s statement

about “meaningful” access.5 This unsupported asser-

tion, however, underscores that the use of any

adjective or modifier to describe a specific level of

educational benefit is inconsequential. No matter

whether “some,” “substantial,” “meaningful,” or

other children,” which was the standard rejected in Rowley,

458 U.S. at 198-200. The Court was appropriately critical of the

word “equal,” because it could, in some instances, deprive

disabled children of necessary services and, in other instances,

require more from districts than IDEA requires. See id. at 198-

99 (“The theme of the Act is ‘free appropriate public education,’

a phrase which is too complex to be captured by the word ‘equal’

whether one is speaking of opportunities or services.”).

5 Reliance on Rowley's use of the word “meaningful” is

entirely misplaced. Indeed, that word appears only once in the

entire majority opinion and, notably, it does not appear in the

section of Rowley discussing the FAPE definition or standard.

Instead, it appears in a discussion of the congressional intent

behind IDEA—-increasing access to education—in a sentence

that explicitly recognizes that Congress rejected the imposition

of a standard that would require a particular level of

educational benefit. Rowley, 458 U.S. at 192 (“But in seeking to

provide such access to public education, Congress did not

impose upon the States any greater substantive educational

standard than would be necessary to make such access

meaningful.”).

another descriptor is discussed, petitioner fails to

establish any difference in actual application.

Furthermore, petitioner and the United States spend

substantial effort trying to explain why each of their

proposed new descriptors for “educational benefit”

would best further their interests, even though the

Rowley Court rejected the use of such a modifier in

accordance with IDEA’s text.

Instead, the Court prescribed a clear articulation

of the test for evaluating an IEP: “First, has the

State complied with the procedures set forth in the

Act? And second, is the individualized educational

program developed through the Act’s procedures

reasonably calculated to enable the child to receive

educational benefits?” Rowley, 458 U.S. at 206-07

(emphasis added and footnotes omitted). Petitioner

overlooks “reasonably calculated” in favor of trying to

inject a subjective adjective before “educational

benefits” and, in doing so, inappropriately shifts the

inquiry away from an IEP team’s actions and onto a

student’s educational outcomes.

This Court should reject, for a second time, an

attempt to judicially amend Congress’s express

definition of FAPE.

B. IEPs are created through an interactive

process involving students, families, and

professionals.

This Court’s rejection in Rowley of a required

level of educational benefit and its refusal to deviate

from Congress's express definition of FAPE is also

sound from a policy perspective because of IDEA’s

demanding IEP requirements. As “the centerpiece of

the [IDEA’s] education delivery system for disabled

children,” Honig v. Doe, 484 U.S. 305, 311 (1988), the

IEP is an interactive, evolving, and detailed process.

As the Court recognized in Rowley, “[e]ntrusting a

child’s education to state and local agencies does not

leave the child without protection.” 458 U.S. at 208.

The “core of [IDEA] .. . is the cooperative process

that it establishes between parents and schools.”

Schaffer v. Weast, 546 U.S. 49, 53 (2005); see also

Rowley, 458 U.S. at 205-06 (Congress gave “parents

and guardians a large measure of participation at

every stage of the administrative process”). As the

Court stated in Schaffer, the “central vehicle for this

collaboration is the IEP process,” and parents and

guardians “play a significant role” in the process.

546 U.S. at 53. From its very outset, for each

individual child, the content of an appropriate

education is defined collectively in an IEP by a team

that includes (among others) the parents and

teachers of the student. See 20 U.S.C. § 1414(d)(B);

Honig, 484 U.S. at 311. This process now also takes

place in the context of mandated state accountability

systems that demand high expectations for students

with disabilities, low-income students, as well as stu-

dents from major racial and ethnic backgrounds. 20

U.S.C. § 6301.

IDEA’s collaborative process also is dynamic

rather than static. Parents are involved in the

ongoing process of evaluating the implementation of

the child’s educational program and revising IEPs.

Whenever parents believe, during a school year, that

their child’s IEP requires revision because of, for

example, “any lack of expected progress” (based on

periodic formal progress reports or other information)

or “the child’s anticipated needs,” they may request

that the IEP team convene and review the IEP and

consider revising it to meet the child’s needs. 20

U.S.C. § 1414(d)(4)(A). Or the parents and the school

district may agree to develop a written document

amending the IEP during the school year without

convening an IEP meeting. 20 U.S.C. § 1414(d)(3)(D).

And at a minimum, the whole IEP team is required

to meet at least annually, including the parents,

formally reviewing whether the plan’s goals are

being achieved and revising the IEP as needed. 20

U.S.C. § 1414(d)(4)(A). The team also considers the

results of reevaluations of the child and other new

information about the child and his or her needs, in-

cluding any such information submitted by the

parents. 20 U.S.C. § 1414(d)(3)-(4).

IDEA’s emphasis on prompt cooperative solutions

imposes obligations on school districts and parents

alike to ensure their good-faith commitment to a

truly collaborative process. Indeed, school districts

frequently agree to private placements where they

are unable to provide an appropriate educational

program themselves. See 20 U.S.C. § 1412(a)(10)(B);

see also infra Section III.B. (discussing private

placement cost). School districts voluntarily expend

hundreds of millions of dollars in state and local

revenue on agreed private placements, which occur

when the collaborative process established by the Act

is operating as it is intended.

C. Congress has strengthened the

requirements for IEPs, thereby

demanding higher expectations for

students with disabilities in the 34 years

since Rowley.

Petitioner points to several of IDEA’s provisions

concerning [EPs and acknowledges that these have

been amended to advance some of the same goals

behind petitioner’s proposed new definition of FAPE.

See, e.g., Pet. Br. 37-38, 42-43. These amendments,

however, do not suggest that Congress expects the

Court to change the definition of FAPE, but rather

they indicate congressional intent to improve educa-

tional outcomes for students with disabilities

through legislative enhancements to the IEP process.

For example, when Congress reauthorized IDEA in

1997, it required the IEP to include provisions for

measuring the student’s progress toward annual

goals, for establishing periodic progress reports, and

for discussing the services to be used tc assist the

student with functioning in the general education

curriculum. See Individuals with Disabilities

Education Act Amendments of 1997, Pub. L. No. 105-

17, § 614, 111 Stat. 81 (1997) (codified at 20 U.S.C.

§ 1414). These amendments have allowed Congress

to improve educational opportunities without creat-

ing the negative consequences risked by petitioner's

approach (discussed infra Section ITT).

Moreover, it is undisputed that Congress

repeatedly has chosen not to amend the actual

definition of FAPE contained in IDEA when it made

these other changes. Petitioner is thus wrong as a

matter of statutory interpretation: “When Congress

amends one statutory provision but not another, it is

presumed to have acted intentionally.” Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 174 (2009); see also

Kucana v. Holder, 558 U.S. 233, 249 (2010) (“[W]here

Congress includes particular language in one section

of a statute but omits it in another section of the

same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion.” (alteration in original)).

Judicial amendment of an express statutory

definition is improper, especially when Congress

amended several provisions of the same statute but

chose to retain its original definition of the term at

issue. Moreover, it is especially unnecessary here,

since Congress has purposely used other amend-

ments to the same statute to improve opportunities

for students with disabilities.

D. Federal statutes, adopted since Rowley,

require states and school districts to be

accountable for the academic progress of

all students, including students with

disabilities.

In addition to strengthening the LEP process for

students with disabilities, Congress has also raised

the level of accountability that states and school dis-

tricts have for the educational outcomes of all

students. Congress accomplished this, not through

changes in IDEA, but rather through a dramatic

restructuring of the Elementary and Secondary

Education Act (““ESEA”), the principal federal educa-

tion program designed to improve the academic

achievement of disadvantaged students. As the

Court noted in Rowley, 458 U.S. at 179-80, it was

through ESEA that Congress initially sought to

address the needs of students with disabilities,

before replacing a grant program under that statute

with the Education of the Handicapped Act, Pub. L.

No. 91-230, 84 Stat. 175, Part B, and ultimately

IDEA. Again, in 2001, Congress sought to bolster

educational opportunities provided under IDEA by

new amendments to ESEA.

When ESEA was reauthorized through the No

Child Left Behind Act of 2001 (“NCLB”), Congress

mandated that states develop and implement

accountability systems that included high standards

for all students and annual assessments. Pub. L. No.

107-110, 115 Stat. 1425 (2002). Under NCLB, state

accountability systems had to annually analyze

progress for all students, but also for specified

subgroups, including students with disabilities. Jd.

at 115 Stat. 1446. NCLB required that 95% of stu-

dents be included in yearly assessments. Jd. at 115

Stat. 1448. Moreover, students with disabilities had

to be assessed using the same tests as other students,

except for the 1% of students with the most signifi-

cant cognitive disabilities for whom an alternate

assessment could be used. 34 C.F.R. 200.13(c)(2). By

requiring the same educational outcome expectations

for all students, NCLB demanded that educators

hold high expectations for students with disabilities.

In 2015, Congress amended the NCLB,

reauthorizing ESEA through the Every Student

Succeeds Act (“ESSA”). 20 U.S.C. § 6301. While

ESSA made a number of changes to NCLB,

principally shifting authority in several areas back to

the states, it also maintained the key requirements

that states have accountability systems that include

annual testing, assess 95% of students, use the same

assessments for students with disabilities, permit

only 1% of students with the most significant cogni-

tive disabilities to participate in _ alternate

assessments (absent a federally approved state

waiver), and report disaggregated data for subgroups,

including students with disabilities. 20 U.S.C.

§ 6311(c)(4)(E)(i)(D; 20 U.S.C. § 6311(b)(2)(B) (ID;

see also 34 C.F.R. 200.104(b)(3) (promulgacing the

most recent regulations implementing ESSA’s

statutory directives).

Congress rejected the idea of setting a specific

benefit or defining national educational standards for

individual students, including students with disabili-

ties, as the above provisions continue to ensure that

educational-outcome expectations for all students

must remain high.

Moreover, the state educational outcome

standards required by NCLB and ESSA do not

provide guarantees to individual students. Rather,

they are used to direct state and federal resources

toward the improvement of lower performing schools.

As a result, the remedies available under both NCLB

and ESSA are quite different than the private place-

ments allowed under IDEA for a denial of FAPE.

First, the remedies are systemic and not private. See

20 U.S.C. § 6573(a)(2). Unlike IDEA, NCLB and

ESSA provide no private right of action. See, e.g.,

Newark Parents Ass’n v. Newark Pub. Sch., 547 F.3d

199, 209-14 (3d Cir. 2008) (holding there is no

private right of action under NCLB). Second, the

remedies are designed to improve the public educa-

tion offered to all students, rather than to provide an

individual student with educational opportunities in

a private-school setting. Jd. The essential aim of

both NCLB and ESSA is to require states and school

districts to take action to improve the educational

opportunities provided at schools where the educa-

tional outcomes of all students or students in

particular subgroups (like students with disabilities)

need improvement.

Thus, above and beyond the requirements of

IDEA, these other federal laws require high

expectations and enhanced services for all low

performing students, including those with disabuili-

ties. Under NCLB in 2002 and now ESSA in 2015,

state accountability systems shine a light on schools

and programs that are successfully educating all

students, but also reveal places where targeted

interventions are needed and achievement must be

improved.

Il. Federal Courts Are Ill-Equipped to Second

Guess the Complex Educational Judgments

Made Through the IEP Process.

Education professionals are best situated to

facilitate the complex collaborative process required

to develop and refine effective IEPs.

A. The nature and degree of educational

progress to be expected is highly variable

because of differences among students,

variations in state educational standards,

and the number of relevant domains

required to be evaluated.

The process of developing an IEP is by definition

highly individualized and also complex. Therefore, it

is not feasible for courts to quantify the precise

amount of educational benefit or outcome that should

be expected of every student.

First, every student is different, as is every

student that is entitled to special education services.

The nature and severity of each student's disability

varies greatly. As this Court acknowledged, IDEA

requires states and school districts “to educate a

wide spectrum of ... children, from the marginally

hearing-impaired” to students with severe cognitive

impairments. Rowley, 458 U.S. at 202. The

reasonable expectations for a student with a

moderate disability may be dramatically different

than those for a student with a more profound condi-

tion. As the Court noted, the “benefits obtainable by

children at one end of the spectrum will differ

dramatically from those obtainable by children at the

other end, with infinite variations in between.” /d.

For some students with disabilities, it is reasonable

to expect their academic progress will match or out-

pace their non-disabled peers. Jd. at 185 (where a

deaf child performed better than the average child in

her class and was advancing easily from grade to

grade). For others, great progress may entail

accomplishing far more simple tasks, including “even

the most simple self-maintenance skills.” Jd. at 202.

Moreover, many students have multiple disabilities

that affect their progress in differing ways. All of

these factors are taken into account in the

development of an IEP, and they make it impossible

to establish a uniform, judicially-enforceable

standard of required progress.

Students’ progress is also monitored across

multiple domains. The educational benefits provided

under IDEA are not purely academic. To the

contrary, IEP teams evaluate not just academic

outcomes, but social, emotional, psychological,

behavioral, medical, and health-related progress as

well. Students may make great progress in some

domains, while occasionally regressing in others. In

some circumstances, improvements in non-academic

areas form the foundation for future academic

progress. The fact that school districts provide

educational benefits across a broad range of needs

makes it even more difficult to define the level of

“educational benefits” required. Indeed, the

educational benefits provided under IDEA span

many domains and are measured in many different

ways. And, for some students, a “reasonably

calculated” IEP may legitimately contemplate

different levels of progress in different areas.

Even in the realm of purely academic progress, it

would not be a simple matter for federal courts to

assess the adequacy of the educational benefits

provided. For example, every state has its own

distinct academic standards. Different states also

use different assessments. IEP teams, collabora-

tively with parents, determine the individual

participation in alternate achievement standards

and alternate assessments. Moreover, statewide

standards and assessments are frequently changed.

Indeed, since November 2014, at least 15 states have

changed their assessment systems. See Julie

Rowland Woods, State Summative

Assessments: 2015-16 school year, Education

Commission of the States, November 2015, available

at http://www.ecs.org/ec-content/uploads/12141.pdf;

see also Tonette Salazar, 50 Ways to Test: A look at

state summative assessments in 2014-15, Education

Commission of The States, November 2014, available

at http://www.ecs.org/clearinghouse/01/16/

06/11606.pdf. Professional educators and parents are

far more familiar with state and local standards and

assessments and are better positioned to evaluate

together a student’s progress on an annual, or even

more frequent, basis.

B. This court should follow its long history

of deferring to educators’ professional

judgment.

Because of the extensive protections built into the

IEP process and the complexity of educating students

with disabilities, this Court in Rowley appropriately

held that courts should defer to the judgment of

professional educators about the degree of

educational benefit that must be provided under

IDEA. Rowley, 458 U.S. at 206 (“[Tjhe provision that

a reviewing court base its decision on the ‘preponder-

ance of the evidence’ is by no means an invitation to

the courts to substitute their own notions of sound

educational policy for those of the school authorities

which they review.”).

The Court has repeatedly “cautioned that courts

lack the ‘specialized knowledge and experience’

necessary to resolve ‘persistent and_ difficult

questions of educational policy.” Jd. at 208 (quoting

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.

at 42).6 The precise degree of educational benefits

6 The Court has recognized that “the education of the

Nation’s youth is primarily the responsibility of parents,

teachers, and state and local officials, and not of federal judges.”

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988);

Wood v. Strickland, 420 U.S. 308, 326 (1975) (“It is not the role

of the federal courts to set aside decisions of school

administrators which the court may view as lacking a basis in

wisdom or compassion.”); Swann v. Charlotte-Mecklenburg Bd.

of Ed., 402 US. 1, 16 (1971) (School authorities are

traditionally charged with broad power to formulate and

implement educational policy . . . .”); Epperson v. State of Ark.,

393 U.S. 97, 104 (1968) (“Judicial interposition in the operation

of the public school system of the Nation raises problems

requiring care and restraint.”); see also Fisher v. Univ. of Texas

at Austin, 579 U.S. __, 186 S. Ct. 2198, 2208 (2016) (“Once,

across multiple domains that is to be expected for

individual students with a variety of disabilities

operating under numerous shifting state education

standards is clearly one such question.

Ill. Petitioner’s Proposed Standard Is Not

Only Inconsistent with Congress’s

Express Intent, But It Also Would Be

Harmful to Students.

The Council, like all parties involved in this case,

desires a result that provides the best possible

outcomes for education of all students. Petitioner

seeks that result by proposing a judicial amendment

to a statutory definition that petitioner believes will

alter litigation outcomes. The Council strongly

believes, however, that educational outcomes for all

students are best protected through the broad-based

procedural and systematic protections found in the

several federal statutes discussed above.

however, a university gives a reasoned, principled explanation

for its decision, deference must be given to the University’s

conclusion, based on its experience and expertise ... .” (interna!

quotations and citations omitted)); Christian Legal Soc. Chapter

of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561

U.S. 661, 707 (2010) (explaining that the Court was “[djeferring

broadly to the law school’s judgment about the permissible

limits of student debate.”); Grutter v. Bollinger, 539 U.S. 306,

308 (2003) (‘The Court defers to the Law School's educational!

judgment that diversity is essential to its educational mission.

The Court’s scrutiny of that interest is no less strict for taking

into account complex educational judgments in an area that lies

primarily within the university's expertise.”).

A. Petitioner proposes an unworkable

standard that would require a subjective

evaluation of educational outcomes.

Petitioner purports to accept the Rowley

prohibition on reading an educational outcome

guarantee into the definition of FAPE, Pet. Br. 49-50,

yet the operational application of petitioner's

proposed standard effectively mandates an

impracticable inquiry into the specific educational

outcomes expected of each student with a disability.

The United States, in support of petitioners, even

more blatantly proposes a standard that would

require “significant educational progress” for

students with disabilities. Gov't Br. at 7, 9.

The standards proposed by both petitioner and

the United States would effectively require an

unworkable judicial inquiry into whether every

student with an IEP is making sufficient academic

progress compared to his or her non-disabled peers.

Indeed, petitioner discusses the level at which stu-

dents with disabilities should be achieving, and

highlights that a recent guidance document from the

U.S. Department of Education encourages an

“emphasis on grade-level achievement.” See Pet. Br.

45-47.7 Thus, despite petitioner’s stated position of

avoiding an analysis of educational outcomes, the

practical application of either the standard proposed

’ As discussed above, the Court in Rowley expressly rejected

grade level achievement as a workable standard for all students

with disabilities. See supra at 18.

by the United States or that proposed by petitioner

would require such scrutiny.®

This Court’s rejection of a very similar standard

in Rowley also illustrates that petitioner's proposed

standard would require such an unworkable analysis.

As discussed, supra at 8 n.4, “substantially equal

opportunities to achieve academic success, attain

self-sufficiency, and contribute to society” (Pet. Br. 41

n.8) is strikingly similar to “commensurate with the

opportunity provided other children.” Rowley, 458

U.S. at 198. Rowley rejected that standard as

unworkable. Petitioner’s proposed standard here

similarly would upend the IEP process and create an

untenable situation for the educational professionals

trying to develop appropriate strategies to help their

students in the best ways possible.

B. Petitioner’s standard would increase

litigation and result in increased private

placements, both of which are expensive.

Petitioner attempts to take a standard that this

Court described as a “procedural checklist” and inject

into it a subjective term, “substantially equal,”

thereby requiring a detailed analysis of the level of

educational benefits in several areas that would be

required for all students with disabilities. Such a

standard invites litigation. Parents would now be

told that they have a potential judicial remedy if they

do not believe their child’s IEP will provide him or

her “with substantially equal opportunities to

8 As discussed supra, the Rowley Court was particularly

critical of the word “equal” with respect to IEPs, making

petitioner's recent decision to propose this standard even more

curious. Rowley, 458 U.S. at 198-99.

achieve academic success, attain self-sufficiency and

contribute to society.” Pet. Br. 14. It is difficult to

see how a court (or administrative law judge) will be

able to efficiently adjudicate such claims, because

petitioner's standard is highly subjective and

complex. How is a court to define “substantially” or

measure the opportunity for achieving academic suc-

cess, self-sufficiency, or societal contribution?

The resulting likelihood of increased litigation

and the likelihood of more protracted litigation are

problematic. First, of course, such litigation imposes

direct financial burdens on school districts. The

dollars that districts must dedicate to litigation are

dollars that could otherwise be used to provide addi-

tional services to all students, including the students

with IEPs. Second, a dramatic increase in litigation

risk has the corollary detriment of increased insur-

ance premiums. Once again, no matter whether the

financial costs are direct or indirect, increased litiga-

tion costs deplete the limited budgets through which

districts provide services to all students. This is

particularly unfortunate when there are other

safeguards already in place that do a superior job

protecting the rights of students with disabilities.

Moreover, in the event parents unilaterally elect

to place their child in a private school at their own

expense, the parents are entitled to reimbursement if

the public school district is unable to provide a FAPE

and the private school can provide an appropriate

education. 20 U.S.C. § 1412(a)(10)(C). Thus, alter-

ing the definition of FAPE has a dramatic impact on

the funds a district must expend to cover private

education. Educational services provided to students

with disabilities in a private setting cost a public

school district, on average, nearly five times what it

costs to provide the services within-district. Jay G.

Chambers et al., What Are We Spending on Special

Education Services in the United States, 1999-2000,

at 12 (updated June 2004), available at

http://www.csef-air.org/publications/seep/national/

advrptl.pdf. Indeed, the most comprehensive study

on this topic found that—in the year 2000—“special

education spending on a school-aged student served

in programs outside the public schools amounted to

$26,440,” including the cost of tuition. Jbid. “In

contrast, special education spending on direct

instruction and related services for school-aged stu-

dents served within public schools amounted to

$5,709 per pupil.” Ibid.

Internal survey data from Council members for

school year 2015-16 reflect even higher costs for

private school placements. In the Los Angeles

Unified School District, the second-largest school

system in the nation with an enrollment of 557,632

students, the average per student annual cost for day

program placements is $29,663. For the Chicago

Public Schools, with 381,349 students, the average

per student cost for such placements was even higher

at $44,106. Comparatively, for Providence Public

Schools, a smaller urban school district of 23,867

students, the average per student annual cost for day

program placements is $41,371. And, the Anchorage

School District, with a student population of 47,207,

has a per-student annual cost for day program place-

ments of $67,806. Despite vast differences in

student enrollment, the highest out-of-district day

program cost was $73,354 for Providence, $75,182 for

Los Angeles, and $87,326 for Chicago.

The annual total cost of these placements is

substantial. For example, this annual aggregate

expenditure was $12.3 million in Providence and

$93.4 million in Los Angeles. Out-of-district place-

ments thus have a staggering financial impact on

urban school systems across the country.

In part as a result -f such placements, the total

cost of special education constitutes a large portion of

the overall budgets of urban public schools. For

example, special education costs account for 18.5%,

or $98.2 million, of the total annual operating budget

in Des Moines Public Schools, 20.0%, or $1.5 billion,

in Los Angeles, and 25.5%, or $568.2 million, in the

Clark County School District (Las Vegas).

With approximately 13% of students nationwide

served pursuant to IEPs, the costs associated with

the dramatic change in the definition of FAPE

proposed by petitioner would likely be astronomical.

See National Center for Education Statistics,

Children and Youth with Disabilities (last updated

May 2016), http://nces.ed.gov/programs/coe/

indicator_cgg.asp.

Increased unilateral private placements can be

problematic for other reasons as well. For example,

when students are placed in private institutions

offering services to only students with disabilities, or

to only students with a particular disability, such a

placement may be in tension with Congress’s explicit

goal in IDEA to educate students with disabilities

with their non-disabled peers in the least restrictive

environment. See 20 U.S.C. § 1412(a)(5). See also

C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513

F.3d 279, 285 (1st Cir. 2008) (“It is common ground

that the IDEA manifests a preference for

mainstreaming disabled children.”); Indep. Sch. Dist.

No. 283 v. S.D., 88 F.3d 556, 561 (8th Cir. 1996)

(IDEA’s “strong preference” that students with

disabilities be educated in their least restrictive

environment “gives rise to a presumption in favor

of . . . placement in the public schools”). In some

private placements, mainstreaming is simply not

possible.

Once again, all of this cost risk and educational

risk is unnecessary, because other forms of federal

and state oversight regulate educational outcomes

for all students. See supra Section I.D.

C. Petitioner’s desired changes to _ the

definition of FAPE come at a time when

public education budgets are being

severely cut, and IDEA has never been

fully funded.

Petitioner’s proposed change also comes at a time

when districts across the nation face crippling budget

cuts. Ever since the 2008 recession, public school

districts have been under extraordinary pressure. In

fact, “[a]t least 31 states provided less state funding

per student in the 2014 school year ... than in the

2008 school year.” Michael Leachman et al., Most

States Have Cut School Funding, and Some Continue

Cutting, Center on Budget & Policy Priorities, at 1

(Jan. 25, 2016), available at http:/Awww.cbpp.org/

sites/default/files/atoms/files/12-10-15sfp.pdf. Local

government funding of public education fell over the

same period. As of 2016, at least 25 states are still

providing less “general” or “formula” funding (which

is the primary source of state school funding) per stu-

dent than in 2008. /d. “In seven states, the cuts

exceed 10 percent.” Id.

Petitioner's proposed standard is a financial load

that public school district budgets simply cannot

bear. As discussed above, it is telling that Congress

never sought to amend the definition of FAPE to

make private remedies more broadly available but

instead enhanced IDEA’s procedural requirements

and safeguards for individual students and created

systemic remedies under ESSA. It is also notable

that this purposeful congressional inaction on the

FAPE definition coincides with Congress’s decision

not to fund IDEA at the intended level. Indeed, the

statute calls for the federal government to fund up to

40% of the differential that public school districts

incur providing services to students with disabilities.

20 U.S.C. § 1411(a)(2)(A)-(B). Congress has never

funded that full amount, currently funding approxi-

mately 17% of the differential. Debra Chopp, School

Districts and Families Under’ the IDEA:

Collaborative in Theory, Adversarial in Fact, 32 J.

Nat'l Ass’n Admin. L. Judiciary 423, 448 (2012).

If Congress wishes to change the definition of

FAPE in a way that dramatically increases the cost

of special education, it will face significant public

pressure to raise federal funding levels as well.

Similarly, the Court, without the ability to increase

such funding, should not adopt a costly definitional

change that Congress has not.

D. The Court should allow educators to

maintain their focus on efforts for

student success, not on the avoidance of

litigation.

IEPs are created through an interactive process

among, inter alia, educators, parents, students, and

health-care providers. Every one of these constitu-

ents is doing his or her best to improve the

performance and opportunities for students with

disabilities. Petitioner has not provided any

evidence supporting the notion that individual

educators—those developing IEP plans—aim to

provide inferior outcomes to their students based on

the circuit court jurisdiction in which they live. In

fact, as respondent points out, there is no credible

evidence that outcomes even vary between jurisdic-

tions that allegedly apply different judicial standards.

See Br. in Opp. 12-16.

What petitioner now proposes is to _ take

Congress’s enhanced procedural requirements and

safeguards—something educators can __ readily

apply—and turn them into an unworkable measure

of whether they are providing “substantially equal

opportunities to achieve academic success, attain

self-sufficiency, and contribute to society” (Pet. Br. 41

n.8). As petitioner cannot provide an explanation as

to how this term would be applied in litigation, it is

unwise to force it upon educators.

A litigation remedy is not the solution to the

“problems” petitioner perceives. Congress has never

seen fit to change the definition of FAPE, and the

Courts should not intervene to do so. Rowley

provides cogent guidance on how to apply Congress's

express language, and the Court should not waiver

from Rowley. Educators should be allowed to

preserve their primary mission of delivering

educational services to all students rather than being

diverted to implement the petitioner’s new judicially

created legal standard for a FAPE.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,