Opposition Brief — Kelly v. United States, 149 Ct. Cl. 842 (1960) (No. 05-55)

decision requires that educational agencies consider a

child’s unique needs and characteristics — in particular,

the child’s capacity to progress under a given educational

program — in considering what constitutes a FAPE. This

holding is entirely consistent with the holdings of other

courts of appeals — including those that use the “some

benefit” language — and with this Court’s decision in

Rowley, which recognized that there is no single standard

that applies to the infinite range of_needs, characteristics,

and capacities of disabled children. Moreover, even if there

is some minor divergence among the courts of appeals, this

case presents a poor vehicle for this Court’s consideration

of the issue. The Sixth Circuit remanded to the district

court for a determination of whether Petitioner committed

a substantive violation of IDEA. If no such violation is

ultimately found, Petitioner’s challenge to the Sixth

Circuit’s “meaningful benefit” standard will be moot. On

the other hand, if a violation is found, Petitioner will have

another opportunity to raise the issue at that time. Accord-

ingly, the petition for a writ of certiorari should be denied.

+

STATEMENT OF THE CASE

A. Zachary Deal’s Disability And Petitioner’s IEPs

Zachary has been diagnosed with autism and verbal

dyspraxia. Pet. App. 63a, 72a, 85a. In 1997, after being

diagnosed with autism at age two-and-a-half, Zachary

was referred to the Tennessee Early Intervention System.

Pet. App. 73a-74a. Zachary’s intelligence could not be

tested at this point because he had not reached the age of

two in development. Pet. App. 73a. Zachary was subse-

quently referred to Petitioner to develop an IEP. Pet. App.

74a. Zachary's first IEP meeting was held on July 30,

5

1997. Id. No regular education teacher attended this

meeting. Pet. App. 75a. Zachary’s first IEP placed him at

the Ooltewah Elementary School in a special education

class with other disabled children, and provided for ninety

minutes of speech therapy each week. Pet. App. 75a-76a.

In October, the IEP was revised to include 45 minutes of

speech therapy a day. Pet. App. 75a.

Te Deals learned about Lovaas-style applied behav-

ioral analysis intervention (“ABA”) in August of 1997,

shortly after Zachary began attending Ooltewah. Pet. App.

64a, 75a. ABA is a systematic approach to teaching young

autistic children based on operant conditioning. It was

developed at the Psychology Department of the University

of California at Los Angeles in the 1980s, and has been

subject to the most reliable studies and testing of any

therapy for autism. Pet. App. 64a-65a, 78a-81la, 85a, 89a.

After studying ABA, the Deals secured ABA services for

Zachary at their own expense, selecting a program admin-

istered by the Center for Autism and Related Disorders.

Pet. App. 64a, 85a, 91a.

Petitioner held several IEP meetings with the Deals

in the Spring of 1988, Pet. App. 76a-77a. During these

meetings, Petitioner recommended that Zachary cut back

to part-time attendance at Ooltewah so he could devote

more time to ABA therapy. Pet. App. 77a. Petitioner

was impressed with the progress Zachary was making

as a result of his ABA program. Pet. App. 78a, 85a.

Indeed, Zachary tested at 93 on an IQ test adminis-

tered in April 1998. Pet. App. 82a. Before the Deals

requested funding for Zachary’s ABA program from

Petitioner, it had flagged Zachary’s education program as

a “sensitive case” under Petitioner’s policy of rejecting any

and all requests for ABA for young autistic children. Pet.

App. 86a. At an IEP meeting held on May 11, 1998, the

Deals presented the results of Zachary’s ABA program and

requested that Petitioner incorporate ABA into Zachary’s

IEP. Pet. App. 77a-78a, 86a. Petitioner rejected the Deals’

request, reasoning that it could not give the same ABA

services to everyone, Pet. App. 77a, and citing cost as a

significant factor in its decision. Pet. App. 86a. Petitioner

also informed the Deals that it could not provide ABA for

Zachary because “the powers that be” were not implement-

ing ABA programs and instead recommended Petitioner’s

own program for autistic children. Pet. App. 77a-78a, 86a.

Selecting the wrong methodology for an autistic child

can mean the difference between an independent adult life

and a lifetime of dependency and support. Pet. App. 107a.

Petitioner’s program is not based on any single methodol-

ogy, but is cobbled together from various components of

other methodologies for treating autistic children. Pet.

App. 82a, 10la. The largest component of Petitioner’s

“eclectic” program is derived from a system called

“TEACCH,” a cradle-to-grave system based on the as-

sumption that the core clinical problems of autism are

lifelong. Pet. App. 8la-82a, 10la. Petitioner has never

acceded to the Deals’ requests for data on the efficacy of

Petitioner’s program, Pet. App. 3a, 78a, 98a-99a, 101a,

107a, although the Deals have never refused a request for

information from Petitioner about Zachary or his ABA

program. Pet. App. 88a. Petitioner has little or no exper-

tise in ABA, Pet. App. 89a, and has low expectations for

autistic children, believing that it is unrealistic to try to

help Zachary deyelop-a relatively normal life of independ-

ence. Pet. App. 89a. In fact, Petitioner has never provided

ABA services to any autistic child, Pet. App. 78a, and

oa

7

Petitioner’s personnel even have a manual titled “How to

Avoid Parents’ Demands for Lovaas.” Pet. App. 23a-24a

n.12. Petitioner’s personnel also demonstrated “an appall-

ing lack of interest” in exploring improved and proven

methodologies such as ABA. Pet. App. 101a, n=4. As a result,

Petitioner based Zachary’s IEP on a system designed for

autistic children incapable of making academic progress or

IQ gains like those Zachary had already demonstrated

under ABA.

Although in May 1998 Petitioner refused to make ABA

services part of Zachary’s IEP, Pet. App. 78a, Extended

School Year Services were made part of the IEP. Pet. App.

77a. The Deals continued to privately fund Zachary’s ABA

program and speech therapy. When Petitioner reconvened

the IEP meeting in October of 1998, the Deals again asked

that Petitioner include ABA services. But Petitioner again

refused. The Deals proposed approximately 600 goals for

Zachary’s IEP; Petitioner countered with 78 goals. Pet.

App. 83a-84a. Eventually, Zachary’s 1998 IEP included

137 goals. Zachary achieved 99 of them, along with 130

goals that Petitioner refused to include in his IEP. Jd. No

regular education teacher, who taught Zachery, attended

the October 15, 1998 IEP meeting. Pet. App. 86a. Peti-

tioner failed to interview any of the ABA providers even

though ABA constituted the bulk of Zachary’s educational

program at the time. Pet. App. 84a.

Nor did a regular education teacher participate in the -

February 1999 meeting, and Petitioner informed the Deals

that they could not ask questions at the March 3, 1999

meeting. Pet. App. 83a. An IEP meeting was held again in

the Spring of 1999 to develop Zachary’s IEP for the summer.

Id. Although his 1998 IEP had included summer services,

and even though Zachary was exhibiting emerging speech

8

and language skills, Petitioner denied the Deals’ request

for summer services in 1999. Pet. App. 83a, 90a, 104a,

105a. Petitioner also failed to provide Zachary with speech

and language services until over four months into the

school year and only provided a fraction of the prescribed

occupational therapy even though Zachary’s IEP included

these services. Pet. App. 112a. Although Petitioner refused

to provide any services during the summer of 1999, the

Deals continued to provide ABA, speech therapy and

occupational therapy during that time period. /d.

Zachary was tested in June of 1999. As a result of the

ABA program, he scored twelve points higher on his IQ

test than the previous year and had made “tremendous

progress” in his interpersonal and reasoning skills. Pet.

App. 84a. In fact, Zachary had progressed to the point

where he was ready to be educated in a regular classroom

with his typically-developing peers. Jd. But when an IEP

meeting was held on August 20, 1999, no regular educa-

tion teacher was present. Pet. App. 90a. At the next

~ meeting on August 25, the regular education teacher left

the meeting before Zachary’s goals and objectivs were

developed and before placement was decided. Pet. App.

87a. The Deals asked Petitioner to place Zachary in

regular education classes to the maximum extent possible,

but Petitioner proposed that Zachary attend regular

education classes for fifteen minutes, three times a week.

Pet. App. 110a. The proposed IEP would have placed

Zachary for a year in a classroom where every single child

was disabled. Pet. App. llla. The Deals rejected this-

proposed IEP and withdrew Zachary from the public

education system and enrolled him at the Primrose School,

a private school, where he attended regular education

classes with an aide. Pet. App. 88a, 1llla. The Deals

9

provided Zachary with ABA, speech therapy and occupa-

tional therapy while he attended Primrose. Pet. App. 66a,

88a. Notably, Zachary did quite well at Primrose, where he

fit in well with his peers, adopted their normal behaviors,

acquired new skills and was, academically, one of the

better students in his class. Pet. App. 87a, 88a. Notably,

Zachary acquired new skills in proportion to the number of

ABA hours received. Pet. App. 88a. Indeed, in the summer

of 2000, Zachary’s IQ tested another 26 points higher than

his last score. Pet. App. 90a.

Notwithstanding Zachary’s gains, Petitioner again

refused to provide Zachary with extended school year

services for the summer of 2000, and the Deals were forced

to continue providing Zachary with an ABA program,

speech therapy and occupational therapy. Pet. App. 105a.

In August 2000, Petitioner developed an IEP for Zachary

that provided placement at a public school, Westview

Elementary, in regular education classes. Pet. App. 91a.

The Deals again requested that the IEP include ABA

services, and again Petitioner denied the request. /d.

Petitioner even refused the Deals’ offer to help train

Petitioner’s personnel on Zachary’s ABA programs and

protocols. Pet. App. 92a.

B. Tennessee’s Decision

Zachary’s parents sought relief under IDEA and Tennes-

see held a hearing on the Deals’ claims, presided over by an

administrative law judge with special training in physical and -

mental disabilities and special education programming. See

TENN. COMP. R. & REGS. 0520-1-9-.14(10XcX4) (2005). The

hearing lasted twenty-seven days and involved testimony

from twenty fact and expert witnesses, tens of thousands of

10

pages of documentary evidence and exhibits, several

videotapes of Zachary, and the administrative law judge's

personal observation and evaluation of Zachary in five

different settings at Petitioner’s request. Pet. App. 67a. At

the completion of the proceedings, Tennessee concluded

that Petitioner had denied Zachary a FAPE and that the

Deals were entitled to reimbursement for some of the

expenses they had incurred in providing appropriate

educational services for Zachary. Pet. App. 106a-14a.

Specifically, Tennessee found, inter alia, that (1) Peti-

tioner prevented the Deals from effectively participating in

the development of Zachary’s IEP by adopting a blanket

policy that no autistic child in Hamilton County would be

provided with an ABA program, no matter how effective and

appropriate that program might be for the child, Pet. App.

78a, 86a, 90a, 98a, 99a, 102a, 108a; (2) Petitioner failed to

have regular education teachers present, as required by

IDEA, at critical IEP meetings, Pet. App. 83a, 86a-87a, 90a,

99a; (3) Petitioner failed to make ABA services a part of

Zachary’s IEP, despite his remarkable progress with the ABA

program that the Deals provided at their own expense, Pet.

App. 70a, 98a, 10la, 102a, 103a, 104a, 108a; (4) Petitioner

failed to provide Zachary a FAPE by refusing to provide

educational and related services during the summer, even

though Petitioner’s acknowledged that Zachary would

regress without those services, Pet. App. 104a-6a; (5) Peti-

tioner failed to educate Zachary in regular education class-

rooms to the maximum and appropriate extent possible, Pet.

App. 109a-1lla; (6) Petitioner frequently failed to deliver

speech and occupational services that were made part of

Zachary'’s IEPs. Pet. App. 112a-3a; (7) Petitioner failed to

provide a proven or even describable methodology for educat-

ing autistic children, Pet. App. 101a; and (8) Petitioner failed

11

to provide an objective, measurable, and sufficient number

of goals for the IEP. Pet. App. 109a.

Tennessee also explicitly found that Zachary would

not make progress under Petitioner’s proposed IEPs, and

that they would, in fact, retard his growth. Pet. App. 7a

n.6, 103a-4a. Tennessee determined that Zachary’s great-

est gains occurred during the periods when he received no

services from the Petitioner. Pet. App. 92a. Indeed, Peti-

tioner’s own expert witness testified that ABA services

needed to be a part of Zachary’s program, Pet. App. 68a,

93a-94a, and that Petitioner’s program does not address

some of the primary deficits of children with autism. Pet.

App. 95a.

C. District Court Proceedings

The Deals and Petitioner each sought review of

portions of Tennessee’s decision. Petitioner introduced

testimony from six new witnesses and twenty-four new

exhibits. Pet. App. 9a. Riding roughshod over explicit

factual findings and credibility determinations, Pet. App.

6la-62a, the district court concluded that Tennessee

should have deferred to the IEPs developed by Petitioner,

Pet. App. 57a-60a, and found that the IEPs would have

resulted in adequate progress despite Tennessee’s conclu-

sion to the contrary. Pet. App. 60a.

D. Sixth Circuit’s Decision

The Sixth Circuit went though the voluminous record and

held, as Tennessee's factual and legal findings support, that

Petitioner procedurally violated IDEA and deprived Zachary

of a FAPE by (a) unilaterally “predetermining” Zachary’s

12

educational placement and program prior to Zachary’s

Individual Education Plan (“IEP”) meetings; (b) repeatedly

failing to ensure the statutorily mandated attendance of a

“regular education teacher” at four of Zachary’s IEP

meetings; (c) maintaining and implementing an “unofficial

policy” that prevented Petitioner from individualizing

Zachary’s IEP;-and (d) depriving Zachary’s parents of any

“meaningful” involvement and participation in the IEP

process. Pet. App. 6a, 24a-25a, 27a-29a, 31a-32a.' The

Sixth Circuit held that the Deals had carried their burden

of demonstrating the foregoing procedural violations,

which, in and of themselves, deprived Zachary of a FAPE.

Pet. App. 21a-32a.

The Sixth Circuit also remanded to the district court the

issue of whether Petitioner committed a substantive viola-

tion of IDEA by failing to provide Zachary with an IEP that

would have afforded him any meaningful benefit. Pet. App.

33a-40a. In doing so, the Sixth Circuit concluded that IDEA

requires that benefits under an IEP need to be tied to the

individual abilities of the child so that the IEP has some

meaning — i.e., a “meaningful benefit.” Pet. App. 40a. Accord-

ing to the Sixth Circuit, it is insufficient to have “some

benefit” that has meaning to another child, but none to the

child at issue.

The Sixth Circuit — far from permitting the Deals to

“dictate unilaterally” Zachary’s placement, Pet. 19, —

merely concluded that Tennessee’s factual findings as to

‘ Contrary to Petitioner's position, this Court's grant of certiorari

in Schaffer v. Weast, 377 F.3d 449 (4th Cir. 2004), cert. granted, 125

S. Ct. 1300 (2005) (No. 04-698), an appeal dealing with the allocation of

burdens of proof, is irrelevant to this appeal. Here, the Sixth Circuit

placed the burden of proof on the parents, not Petitioner. Pet. App. 1Sa.

13

the appropriate education for Zachary were entitled to

greater deference than that accorded by the district court:

What seems to have been overlooked by the dis-

trict court in this case is that the ALJ is a repre-

sentative of the state presumed to have both the

educational expertise and the ability to resolve

questions of educational methodology that the

federal courts do not have. ... The district court

does not appear to have accorded due deference

to the ALJ’s findings especially in areas touching

upon the ALJ’s presumed educational expertise.

Pet. App. 39a-40a; see also TENN. COMP. R. & REGS. 0520-

1-9-.14(10)(c)(4) (2005). The Sixth Circuit did not deter-

rine the level of benefits that are appropriate for Zachary,

but remanded the issue to the district court for a careful

weighing of the equities, giving due deference to Tennes-

see’s findings, and taking into consideration Zachary’s

individual abilities. Pet. App. 40a.

Petitioner filed for en banc review, but not a single

judge sitting on the Sixth Circuit voted in favor of grant-

ing the application. Pet. App. 115a.

ae +

THE PETITION SHOULD BE DENIED

I. The Highly Fact-Specific Predetermination

Holding Resulted From The Application Of

Uniformly-Accepted Legal Standards To This

Complex Factual Record

The Sixth Circuit held that Petitioner impermissibly

predetermined decisions relating to the educational

support it would provide to Zachary. In reaching this

14

conclusion, the Sixth Circuit cited to no fewer than fifteen

specific factual findings made by Tennessee. On that basis,

the court stated:

The facts of this case strongly suggest that the

School System had an unofficial policy of refus-

ing to provide one-on-one ABA programs and that

School System personnel thus did not have open

minds and were not willing to consider the provi-

sion of such a program. This conclusion is bol-

stered by evidence that the School System

steadfastly refused even to discuss the possibility

of providing an ABA program, even in the face of

impressive results. Indeed, School System per-

sonnel openly admired and were impressed with

Zachary’s performance (presumably attained

though the ABA program), until the Deals asked

the School System to pay for the ABA program.

Several comments made by the School System

personnel suggested that they would like to pro-

vide Zachary with ABA services, i.e. they recog-

nized the efficacy of such a program, but that

they were prevented from doing so, i.e., by the

School System policy. The clear implication is

that no matter how strong the evidence pre-

sented by the Deals, the School System still

would have refused to provide the services. This

is predetermination.

Pet. App. 26a-27a.

Petitioner incorrectly contends that the Sixth Circuit

“deemed it improper for Petitioner to consider the expense

of Lovaas-style ABA.” Pet. 21. Actually, the Sixth Circuit

specifically recognized that “[a] school district unques-

tionably may consider cost in determining appropriate

services for a child.” Pet. App. 28a (citation omitted). What

a school district may not do, however, is decide prior to an

15

\

IEP meeting that it would only provide one type of therapy

to an autistic student merely because it made a prior

investment, no matter what the individual child’s needs

and capabilities. Jd. The undisputed record is that Peti-

tioner decided prior to the IEP meeting that it would use a

variant of TEACCH - a program that may be appropriate

for some children, but was inappropriate for Zachary —

because it had invested money in that program. Jd. As

emphasized by the Sixth Circuit:

The school district is required, however, to base

its placement decision on the child’s IEP, 34

C.F.R. § 300.552, rather than on the mere fact of

a pre-existing investment. In other words, the

school district may not, as it appears happened

here, decide that because it has spent a lot of

money on a program, that program is always go-

ing to be appropriate for educating children with a

specific disability, regardless of any evidence to the

contrary of the individualized needs of a particu-

lar child. A placement decision may only be con-

sidered to have been based on a child’s IEP when

the child’s individual characteristics, including

demonstrated responses to particular types of

educational programs, are taken into account.

Pet. App. 28a-29a (emphasis in original).’ While cost can

therefore be considered, “[a] school system should not

make placement decisions on the basis of financial consid-

erations alone.” Hanson v. Smith, 212 F.Supp. 2d 474,

* As Tennessee also recognized, IDEA does not require a Cadillac,

only a serviceable Chevrolet. Pet. App. 99a-100a. Tennessee stated that

IDEA “does, however, require [Petitioner] to make sure whichever

vehicle they propose, is fully gassed and capable of arriving at the

appropriate destination. The appropriateness of the destination is

dependent to a large extent on the child's abilities and potential.” Jd.

16

482, citing, Barnett v. Fairfax County Sch. Bd., 927 F.2d

146, 154 (4th Cir. 1991).* Here, Petitioner made decisions

solely based upon cost and, in violation of the statute,

failed to come to the IEP meeting with an open mind. N.L.

ex rel. Ms. C. v. Knox County Schs., 315 F.3d 688, 694-95

(6th Cir. 2003).

The court of appeals ruling in this regard is correct

and, as especially relevant here, raises no issue of general

importance. Rather, it simply applies well-settled law to

the facts of this case as meticulously developed in proceed-

ings before Tennessee. Accordingly, the court of appeals

predetermination ruling presents no occasion for review by

this Court. See Sup. Ct. R. 10.

II. This Case Does Not Present A Genuine Cir-

cuit Split

The primary reason Petitioner advances for granting

certiorari is the alleged existence of a “clear circuit split,”

Pet. 11, regarding the meaning of a “free appropriate

public education” under IDEA. According to the petition, a

majority of circuits “squarely reject,” Pet. 12, a “stringent,”

Pet. 17, “meaningful benefit” standard in favor of a “mod-

est,” Pet. 12, “some benefit” test. Pet. 11-18. There is no

such split. All circuits agree on the basic principles that

guide the analysis of whether a disabled child has been

provided a FAPE. All circuits, agree that states are not

required to maximize a disabled child's ability to fulfill his

* As for Petitioner's argument that it may withhold ABA therapy

from Zachary because “of the expense of providing such therapy on a

system-wide basis,” Pet. 21, this Court rejected the sole use of cost as the

basis for defining the required services under IDEA. Cedar Rapids Cmty.

Sch. Dist. v. Garret ex rel. Charlene, 526 U.S. 66, 77-78 (1998).

17

or her full academic potential. All circuits also agree that

IDEA requires that the individual child’s unique, individ-

ual characteristics and capabilities be considered when

evaluating whether he or she has received a FAPE.

The cases Petitioner cites do not demonstrate any

split. The “split” Petitioner identifies is, at most, a split

based on semantics. Many circuits ostensibly-identified in

the petition as “some benefit” courts cite to “meaningful

benefit” cases for the appropriate standard under IDEA.

Petitioner has not articulated what distinguishes the “some

educational benefit” standard from the “meaningful educa-

tional benefit” standard. Petitioner suggests that the

“meaningful benefit” standard is more “stringent” and

“subjective” than the “some benefit standard,” Pet. 17,_

although it is not clear how this is so.‘ It also suggests that

- the “meaningful benefit standard” is somehow commensu-

rate with potential-maximization, Pet. 15; but the Sixth

Circuit has flatly rejected potential-maximization as a

standard.

The Sixth Circuit clearly explained what it meant by a

“meaningful benefit:” that a disabled child’s individual

characteristics — i.e., his or her capacity to respond to the

available educational methodologies — is-one factor that

‘ Petitioner may believe that the test was applied too stringently in

this case, but that does not show that there is a genuine circuit split on

the meaning of IDEA. Petitioner cites to the Sixth Circuit’s dicta in

footnote 17 that a FAPE may require self-sufficiency, where self-

sufficiency is a realistic goal. Pet. 15. This sentiment is perfectly

consistent with Rowley, which rejected self-sufficiency as a universal

goa) because it would be unattainable for some disabled children. 458

U.S. 176, 201 n.23 (1982). But even if this dicta applies the benefit

standard too heavily, this Court does not grant certiorari to correct

dicta. See Sup. Ct. R. 10.

18

must be considered when deciding what a FAPE is for that

child. Pet. App. 34a, 38a. The Sixth Circuit’s ruling is in

harmony with every other circuit that has considered the

issue and is consistent with this Court’s analysis of IDEA in

Rowley and with the text and legislative history of IDEA.

A. All Circuits Agree On The Principles Gov-

erning The Fact-Specific Inquiry Of What

Constitutes A FAPE

This Court noted over twenty years ago that the

statutory definition of a FAPE “tends toward the cryptic

rather than the comprehensive,” Rowley, 458 U.S. at 188,

but that the statutory text and legislative history of the

EHA (IDEA’s predecessor) provide sufficient clues to make

the requirement “tolerably clear.” 458 U.S. at 203. First,

Congress was concerned that disabled children be pro-

vided meaningful access to public education. 458 U.S. at

191-2, 194 n.18. Second, Congress was concerned with

providing an education that would be appropriate for each

individual child, rather than enforcing equality of educa-

tional opportunity’ — a standard too high for some children

— or equality of educational services — a standard too low

for others. 458 U.S. at 198-9. Third, disabled children vary

widely in their characteristics and abilities, and respond to

different educational services with equal variety. In light

of these individual variations, Congress required that the

education provided must be specifically tailored to each

* The equality-of-opportunity standard required by the district

court in Rowley, and rejected by this Court, is often referred to as

“potential-maximizing” in subsequent cases. See, e.g., Gregory K. v.

Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987) (citing Rowley,

458 U.S. at 197 n.21 & 200-01).

-

19

individual disabled child. 458 U.S. at 181, 201-2, 203.

Fourth, Congress expressed a strong preference for “main-

streaming” where possible. 458 U.S. at 202-3. Indeed,

Congress sought to make educational services available that

might enable disabled children to reduce their dependence

on society, and perhaps even to find gainful employment and

become contributing members of society. See Rowley, 458

U.S. at 201 n.23; 20 U.S.C. §§ 1400(a)(5)E) and (d)(1)(A).

Finally, the standards established for judicial actions to

review state administrative hearings dictate that courts

are to give appropriate deference to state educational

policy decisions. 458 U.S. at 206.

In Rowley, this Court did not decide what would

constitute an appropriate education in a_ substantive

sense. It expressly declined to “establish any one test for

determining the adequacy of educational benefits con-

ferred upon all children covered by the Act.” 458 U.S. at

202. Rowley found that a disabled hearing impaired child

who was participating in regular education classes with

her non-disabled peers, where she advanced easily from

grade to grade and, in fact, performed at an above-average

academic level, was receiving a FAPE. 458 U.S. at 203

n.25.

Thus, what constitutes a FAPE for each disabled child

is a case-by-case analysis, highly dependent on the indi-

vidual characteristics of the child. 458 U.S. at 188-89, 201.

The courts of appeals uniformly recognize this principle,

and also uniformly recognize the applicability of the

principles established in Rowley: (1) a FAPE requires

20

meaningful access to educational services,’ 458 U.S. at

191-2, 194 n.18; (2) a FAPE does not require that a

disabled child be provided educational services that allow

the child to maximize his or her academic potential, 458

U.S. at 198; (3) what constitutes a FAPE depends on the

unique individual characteristics and abilities of the child,’

* See, e.g., JSK ex rel JK v. Hendry County Sch. Bd., 941 F.2d

1563, 1572 (11th Cir. 1991); Butler v. Evans, 225 F.3d 887, 894 (7th Cir.

2000); Kings Local Sch. Dist. Bd. of Educ. v. Zelazny, 325 F.3d 724, 729

(6th Cir. 2003); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1047

(5th Cir. 1989); A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 319 (4th Cir.

2004); Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 247

(3d Cir. 1999); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119,

130 (2d Cir. 1998).

* See, e.g., Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314

(9th Cir. 1987) (IDEA does not require the “absolutely best or ‘potential

maximizing’ education”); Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d

607, 612 (8th Cir. 1997) (“IDEA does not require that a school cither

maximize a student's potential or provide the best possible education at

public expense”); School Bd. of Henrico County v.Z.P. ex rel. R.P., 399

F.3d 298 (4th Cir. 2005) (“Act does not require the furnishing of every

special service necessary to maximize each handicapped child's

potential”); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d

Cir. 2003) (same).

* See, c.g., Reid ex rel. Reid v. District of Columbia, 401 F.3d 516,

524 (D.C. Cir. 2005) (what constitutes appropriate compensatory

education is a fact-specific inquiry); Walker County Sch. Dist. v. Bennett

ex rel. Bennett, 203 F.3d 1293, 1296 n.10 (11th Cir. 2000); JSK ex rei. JK

vu. Henry County Sch. Bd., 941 F.2d 1563, 1572 (11th Cir. 1991) (adequacy

is to be determined on a case-by-case basis in light of individual child’s

needs); O'Toole ex rel. O'Toole v. Olathe Dist. Sch. Unified Schs. Dist.

No. 233, 144 F.3d 692, 700 n.6 (10th Cir. 1998) (appropriate education

under both Kansas law and IDEA provides “educational benefits in the

context of [] the individual’s particular abilities or capacities”); Mrs-

sourt Dept. of Elementary & Secondary Educ. v. Springfield R-12 Sch.

Dist., 358 F.3d 992, 998-99 (8th Cir. 2004) (“A specialized course of

instruction must be developed for each disabled student, taking into

account that child’s capabilities”); Daniel R.R. v. State Bd. of Educ., 874

F.2d 1036, 1048 (5th Cir. 1989) (whether mainstreamed education is

appropriate is an “individualized, fact specific inquiry”); MM ex rel. DM

(Continued on following page)

21

458 U.S. at 181, 201-3; and (4) a FAPE should enable

disabled children to be educated with their non-disabled

peers to the extent possible,” 458 U.S. at 202-3.

v. Sch. Dist. of Greenville County, 303 F.3d 523, 537 (4th Cir. 2002)

(“whether services beyond the regular school day are essential ... is

necessarily fact and case specific”); Polk v. Cent. Susquehanna Interme-

diate Unit 16, 853 F.2d 171, 177 (3d Cir. 1998) (explaining that the

“system of procedural protection only works if the state devises an

individualized program and is willing to address the handicapped

child’s ‘unique needs.’”) (emphasis in original, internal citations

omitted); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d

332, 338 (2d Cir. 2005) (“IDEA cases |] are fact-intensive inquiries

about the child’s disability and the effectiveness of the measures that

school boards have offered to secure a free appropriate public educa-

tion”); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir.

1990) (noting that “academic potential is one factor to be considered”

when formulating an IEP). See also Rowley, 458 U.S. at 201 (concluding

that the Act requires “access to specialized instruction and reiated

services which are individually designed to provide educational benefits

for the handicapped child.”) (emphasis added).

* See, e.g., Greer v. Rome City Sch. Dist., 950 F.2d 688, 695 (11th

Cir. 1991), withdrawn, 956 F.2d 1025 (1992), and reinstated, 967 F.2d

470 (1992); Murray ex rel. Murray v. Montrose County Sch. Dist., 51

F.3d 921, 926 n.9 (10th Cir. 1995) (quoting 20 U.S.C. § 1412(5)B)); M.L.

v. Federal Way Sch. Dist., 394 F.3d 634, 656-57 (9th Cir. 2005) (Gould,

J., concurring); Blackmon ex rel. Blackmon v. Springfield R-XII Sch.

Dist., 198 F.3d 648, 661 (8th Cir. 2000) (describing mainstreaming as

one of the “primary objectives” of the IDEA); Casey K. ex rel. Norman K.

v. St. Anne Cmty. H.S. Dist. No. 302, 400 F.3d 508, 512 (7th Cir. 2005)

(noting the statutory -preference for mainstreaming); McLaughlin v.

Holt Public Sch. Bd of Educ., 320 F.3d 663, 672 (6th Cir. 2003) (noting

that “the plain language of the requirement in the Act clearly com-

mands schools to mainstream disabled children as much as possible.”);

Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5th Cir. 1989);

A.W. ex rel. Wilson v. Fairfax County Sch. Bd., 372 F.3d 674, 681-82 (4th

Cir. 2004) (same); T.-R. v. Kingwood Township Bd. of Educ., 205 F.3d

572, 578 (3d Cir. 2000) (explaining that the mainstreaming mandate

“require{s] that a disabled child be placed in the least restrictive

environment. ...”); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,

379 (2d Cir. 2003) (same); Roland M. v. Concord Sch. Comm., 910 F.2d

5 (Continued on following page)

22

B. The Sixth Circuit Applied These Well-

Understood General Principles

The Sixth Circuit applied the principles established by

this Court to the inherently fact-specific inquiry of what

constitutes a FAPE for Zachary. As a result, the Sixth Circuit

concluded that the district court had erred by (1) failing to

give due weight to Tennessee's factual findings, especially

those findings regarding educational policy, Pet. App. 39a-

40a; and (2) failing to consider Zachary’s unique, individual

characteristics and needs — in particular, his capacity to

respond to various educational services — when deciding

whether Petitioner provided him with a FAPE, Pet. App.

32a-39a. On remand, the Sixth Circuit tasked the district

court with evaluating Petitioner’s proposed educational

services with these considerations in mind. Pet. App. 40a.

The Sixth Circuit's holding that the extent to which a

disabled child is capable of benefiting from the available

educational methodologies is an appropriate factor to

consider when determining whether a school district has

provided that child with a FAPE, is perfectly consistent

with a principle uniformly recognized by the courts of

appeals that the determination of what constitutes a

FAPE for a particular child is a case-by-case, fact-specific

inquiry that necessarily turns on the child's individual

characteristics. Pet. App. 38a. Likewise, the principle applied

by the Sixth Circuit in reaching its holding, that IDEA does

not require services that maximize the potential of each

individual child, is also accepted by all circuits. Pet. App.

20a (quoting Rowley, 458 U.S. at 200-01).

983, 992-93 (1st Cir. 1990) (“Mainstreaming may not be ignored, even to

fulfill substantive educational criteria.”). See also Cedar Rapids, 526

USS. at 78. ;

23

C. Petitioner’s “Circuit Split” Is Based On Se-

mantics Rather Than A Genuine Split In

The Law :

The cases cited by Petitioner as evidence of the “clear

circuit split” actually show the opposite — that there is no

circuit split about whether a child’s individual characteris-

tics, including the extent to which the child is capable of

benefiting from different educational services, is an

appropriate factor to consider when determining if Peti-

tioner has provided a FAPE. Moreover, other cases from

these “majority” circuits approve of the articulation of

standards governing a FAPE as set forth by the “minority”

circuits, demonstrating that the courts of appeals do not

perceive any meaningful difference between the so-called

“some benefit” and “meaningful benefit” standards.

In three of the cases cited as “squarely rejecting” a

meaningful benefit standard (from the Fourth, Tenth and

Eleventh Circuits), the courts simply reject a “potential

maximizing” standard.” The courts do not reject a mean-

ingful benefit standard as articulated and applied by the

Sixth Circuit; i.e., a standard that requires a non-trivial

educational benefit and an evaluation of the child’s indi-

vidual capacity to respond to the available educationa!

Pet. 11; A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 319 (4th Cir.

2004) (rejecting potential maximization, and finding that the state

must provide “meaningful access,” with a FAPE that confers “some

educational benefit”) (citations omitted); O’Toole ex rel. O’Toole v. Olathe

Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 700 (10th Cir.

1998) (disagreeing with the O’Tooles’ argument that Kansas requires

services to “maximize each child's potential”); JSK ex rel. JK v. Hendry

County Sch. Bd., 941 F.2d 1563, 1572 (11th Cir. 1991) (explaining that

access must be meaningful, and is meaningful when sufficient to confer

some benefit, that is, not necessarily a benefit that would achieve the

child's maximum potential).

24

services. Another case cited in the petition as “squarely

rejecting” a meaningful benefit standard (Seventh Circuit)

explicitly does not reject that standard; it simply notes

that a meaningful benefit standard may be slightly more

stringent than a some benefit standard, but holds that the

IEP at issue in that case met both tests. Todd v. Duneland

Sch. Corp., 299 F.3d 899, 906 n.3 (7th Cir. 2002). The

remaining three cases cited in the petition as “squarely

rejecting” a meaningful benefit standard (First, Eighth

and D.C. Circuits) do not address the substantive prong of

a FAPE inquiry. Two of the three deal with the scope of the

remedy that can be awarded to a successful IDEA liti-

gant, while the third deals with the division of responsi-

bility between state and local educational authorities

when the local agency lacks the resources to provide a

FAPE.”

JSK, heavily relied upon by Petitioner, rejects a

meaningful benefit standard, but appears to equate a

benefit with potential-maximizing. 941 F.2d at 1572-73

(rejecting “meaningful educational benefits” and distin-

guishing “some or adequate educational benefits” from

“maximum improvement”). There, the Eleventh Circuit

did not hold that a child’s potential to respond to various

" Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir.

2005) (construing equitable jurisdiction to craft appropriate relief);

Maine Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9 (ist Cir.

2003) (considering validity of attorneys’ fees claim and justiciability of

compensatory education claim). ~

“ Missourt Dept. of Elementary & Secondary Educ. v. Springfield

R-12 Sch. Dist., 358 F.3d 992, 1002 (8th Cir. 2004) (holding that

“Missouri statutes make clear that given the facts of the instant case,

the ‘buck’ stops with the Missouri Department of Elementary and

Secondary Education.”).

25

educational services is an impermissible consideration

when determining what constitutes a FAPE for that child.

On the contrary, it recognized that the inquiry is specifically

tailored to the individual characteristics of the child. Jd. at

1573. Similarly,in A.B. ex rel. D.B. v. Lawson, the Fourth

Circuit emphasized that Rowley required only “some educa-

tional benefit” as opposed to services necessary to maximize

the disabled child’s potential. 354 F.3d at 319. There, the

primary issue was the district court’s failure to give due

weight to the factual findings of the state hearing officer,

including findings that the child was making academic

progress in the public education system. Jd. at 328 (child’s

reading level increased two grade levels while in the public

school system); id. at 321-22 (child made satisfactory grades

and received favorable comments from regular education

teacher). The state was therefore not required to reimburse

A.B.’s parents for the costs of a private schoo] that provided

A.B. with an “ideal” environment. /d. at 330. Both A.B. and

Rowley are cases wherein a child, who could be excelling if

given more resources but who is nonetheless progressing

normally in regular education classes, is said to receive a

FAPE.

As in A.B. and JSK, the Tenth Circuit in O’Tbole v.

Olathe District Schools Unified School District No. 233

held that an IEP is not inappropriate simply because it

does not provide for the best possible program. There, a

hearing disabled child was attending both regular and

special classes in the public school system. 144 F.3d at

695-96. She apparently began experiencing academic

difficulties after her mother died and her father remar-

ried, yet continued to make steady, if uneven, academic

progress. /d. at 696. After a private evaluation, her par-

ents requested additional educational and related services,

~

26

many of which were incorporated into her IEP. Jd. at 707.

Her parents nonetheless enrolled her in a private school

and asked for reimbursement from the school district.

Reimbursement was denied because, although the private

school may have helped maximize her potential, the

parents did not demonstrate that the IEP developed by the

school district was inappropriate. Jd. at 708. O’Toole did

not, however, reject or even address the meaningful

benefit standard. In fact, it favorably cited a Second

Circuit case, Walczak v. Florida Union Free School District

(counted as a meaningful benefit circuit by the Petitioner),

as well as an earlier Tenth Circuit case, Johnson ex rel.

Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022

(10th Cir. 1990), that relies on the Third Circuit’s Polk

decision for the standards that govern whether an IEP

provides a FAPE. 144 F.3d at 708 (citations omitted).

In Todd, the Seventh Circuit neither adopted nor

rejected a meaningful benefit standard. The court indi-

cated that a meaningful benefit standard may be “slightly

more stringent” than a some benefit standard, but held

that the difference between the two standards was imma-

terial because the individual education plan formulated by

the State satisfied both. Todd, 299 F.3d at 906 n.3. Indeed,

since the difference, if any, between the two standards was

immaterial to the court's ruling, it would have been dicta

to hold that one or the other was the required test.

The remaining cases cited in the petition as “squarely

rejecting” a meaningful benefit standard do not address

whether there are two standards, what the differences

between the two may be, or which is the appropriate

standard. The cases simply quote Rowley for the proposition

that a FAPE is one that provides “some educational benefit”

without addressing the content of that requirement. None of

27

the cases hold that courts cannot consider the extent of the

child’s capacity to benefit from an educational plan when

determining whether that plan provides a FAPE. Reid ex

rel. Reid addressed the availability of “compensatory

education” as a remedy in an IDEA suit rather than what

constitutes an “educational benefit.” Following the Third

Circuit’s decision in Ridgewood, a “meaningful benefit”

case, the Reid court concluded that compensatory education

is an appropriate remedy, in part, because an IEP developed

for a child injured by the earlier denial of a FAPE will be

based on the child’s current needs and capacities, rather

than on the needs and capacities the child would have had

if the earlier damage had not been done. 401 F.3d at 522.

Thus, a new IEP will not compensate the child for the harm

caused by an earlier, inappropriate IEP.

As in Reid, the District of Columbia Circuit does not

address, much less “squarely reject” a meaningful benefit

standard. Indeed, that court’s favorable citation to Ridge-

wood indicates the District of Columbia Circuit has no

quarrel with the meaningful benefit standard. In Missouri

Department of Elementary & Secondary Education, it was

uncontested that the school district lacked the resources to

provide the disabled child with a FAPE. 358 F.3d 992, 997-8

(8th Cir. 2004). The issues on appeal were whether, under

those circumstances, local or state representatives must be

part of the child’s IEP team; whether local or state repre-

sentatives were responsible for paying for the child’s

educational services and whether certain fees and ex-

penses were appropriately awarded to the parents of the

disabled child. 358 F.3d at 998.

In Maine School Administrative District No. 35, the

First Circuit also does not address the standards govern-

ing a FAPE, much less “squarely reject” the meaningful

28

benefit standard. Rather, it dealt primarily with the

availability of attorneys’ fees and compensatory education

when the child had graduated from the public education

system during the pendency of the litigation. 321 F.3d at

18-20. The case is apparently cited in the petition because,

when giving an overview of IDEA, the opinion notes that

IDEA requires states to provide “some educational bene-

fit.” Jd. at 11 (citing Rowley).

The Seventh Circuit's decision in Todd v. Duneland

School Corporation provides an excellent example of

Petitioner's faulty circuit split analysis. Todd held in dicta

that the IEP developed by the school district would be

appropriate under either the some benefit test or the

“slightly more stringent” meaningful benefit test, without

adopting or rejecting either standard. Though Petitioner

takes this to mean that the Seventh Circuit is a some

benefit circuit, in Alex R. ex rel. Beth R. v. Forrestville

Valley Community United School District #221, it cites

Fifth Circuit and Second Circuit meaningful benefit cases for

the appropriate standard under IDEA. 375 F.3d 603, 615 (7th

Cir. 2004) (quoting Cypress-Fairbanks and citing Walczak), see

also G ex rel. SSgt RG v. Fort Bragg Dependent Sch., 343 F.3d

295, 306 (4th Cir. 2003) (“we must next address the ques-

tion of whether |the child’s IEP] was ‘reasonably calcu-

lated’ to provide [the child] meaningful educational

benefit”); School Bd. of Collier County v. KC, 285 F.3d 977,

982 (llth Cir. 2002) (finding the Fifth Circuit's test for

determining whether an IEP provided a disabled child

with educational benefits “as least as stringent as our

own”). As none of the circuits dispute IDEA’s requirement

that disabled children receive a meaningful educational

benefit, as defined by the Sixth Circuit, review is not

warranted.

29

Ill. The Petition Should Be Denied Based Upon

The Interlocutory Nature Of The Case

Even if there is some minor divergence among the

courts of appeals relating to the standard of benefits, this

case presents a poor vehicle for the Court’s consideration

of the issue because it comes to this Court in an interlocu-

tory posture.

First, because Petitioner does not challenge the court

of appeals’ holding that Petitioner violated IDEA by failing

to provide a regular education teacher’s participation in

Zachary’s IEP meetings and that this procedural violation

caused Zachary substantive harm, this case must return

to the district court for remedial proceedings regardless of

this Court’s consideration of the two issues Petitioner

raises."

Second, with respect to Petitioner’s alleged substan-

tive violation of IDEA, the Sixth Circuit remanded the

issue to the district court so that the district court could

consider whether Petitioner’s proposed IEP would provide

" Despite IDEA’s requirement to place disabled children in a

mainstream setting whenever possible, Cedar Rapids, 526 U.S. at 78,

and the related requirement to have a “regular education teacher”

attend IEP meetings, 34 C.F.R. § 300.344(a), Petitioner repeatedly

failed to ensure the attendance of a regular education teacher at

multiple IEP meetings even though placing Zachary into a less-

restrictive environment was to be specifically addressed. Pet. App. 30a-

3la. In finding that the Petitioner’s repeated procedural violations

harmed Zachary — and correcting the district court’s erroneous conclu-

sion that the regular education teacher missed only two IEP meetings —

the Sixth Circuit found that in view of the Deals’ objections that the

IEP provided insufficient integration, “|t]he absence of the unique

perspective that could have been provided by a regular education

teacher therefore had a real impact on the decision-making process.”

Pet. App. 31la-32a.

30

Zachary with a meaningful educational benefit giving due

deference to Tennessee's views. Depending on the outcome

of these proceedings, Petitioner’s challenge to the Sixth

Circuit’s “meaningful benefit” standard may become moot.

In short, review in this Court is both unwarranted and,

at a minimum, premature. Indeed, because the district court

will inevitably have to consider the appropriate relief for the

IDEA violation that Petitioner does not challenge, review at

this stage by this Court will not economize on judicial

resources. Accordingly, the interlocutory nature of Peti-

tioner’s appeal presents yet another reason to deny review.

ae

v

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

GakyY S. MAYERSON STEVEN M. PESNER*

CHRISTINA THIVIERGE EDWARD P. LAZARUS

MAYERSON & ASSOCIATES JAMES E. D’'AUGUSTE

330 West 38th Street MICHAEL D. LOCKARD

Suite 600 AKIN GUMP STRAUSS HAUER &

New York, New York 10018 FELD LLP

(212) 265-1735 590 Madison Avenue

New York, New York 10022

(212) 872-1000

Counsel for Respondents

September 7, 2005 *Counsel of Record

\ Sine

| Srene coon Vo.

FILED

Sar 20 2905

(4) OFFICE OF THE CLERK

No. 05-55

IN THE

Supreme Court of the United States

HAMILTON COUNTY DEPARTMENT OF EDUCATION,

Petitioner,

wa

MAUREEN DEAL; PHILLIP DEAL,

Parents on Behalf of ZACHARY DEAL,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

REPLY BRIEF OF PETITIONER

CHARLES L. WEATHERLY CARTER G. PHILLIPS*

THOMAS W. DICKSON JOSEPH R. GUERRA

WENDY A. JACOBS ° THOMAS A. BURNS

THE WEATHERLY LAW FIRM SIDLEY AUSTIN BROWN &

3414 Peachtree Road, N.E. WOOD LLP

Suite 1550 1501 K Street, N.W.

Atlanta, Georgia 30326 Washington, D.C. 20005

(404) 262-9500 (202) 736-8000

Counsel for Petitioner

September 20, 2005 * Counsel of Record

DEEL LAE ALE ALINE ALP RET TERE CE ROBES ETE LEE OLLIE DELS LOE LIE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES wnccscsesssscssssecsencocossssesacsonessee

REPLY BRIEF

CONCLUSION

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POORER EEE EEE E EHO EEEEEEEHEEEEEEHEEESEEEEHEEEEEEEEEESEEED

OF

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TABLE OF AUTHORITIES

CASES Page

A.B. ex rel. D.B. v. Lawson, 354 F.3d 315 (4th

Ce: PD iccntcdnchicidigvdeatinunistitenig aninicdaontboanndncnciahiaie 3,4, 5

Alex R. ex rel. Beth R. v. Forrestville Valley

Cmty. United Sch. Dist. # 221, 375 F.3d 603

(7th Cir.), cert. denied, 125 S. Ct. 628 (2004)..... 6,7

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396

CR hl Ascnisesakarcnooeibiics Oaadebbieeeapennaes 9

Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).......... 1,7

Boeing Co. v. United States, 537 U.S. 437

Ee Bidicic ccacieesssisacidin aes caonaeicnscauabukehiinenanaleiccsiuisiscce 9

Bordon Ranch P’ship v. U.S. Army Corps of

Eng 'rs, 537 U.S. 99 (2002)............. Scubdubiccendiobnesia 9

City of Cuyahoga Falls, Ohio v. Buckeye Cmty. :

Hope Found., 538 U.S. 188 (2003)... eee

City of Los Angeles v. David, 538 U.S. 715

Ui daceciilos Lepadciaanccninenapetacnaabdaicestaliebalacsaatenntcine 9

Clackamas Gastro. Assocs., P.C. v. Wells, 538

GF A Ce icin csc tccerssiconscipenbinisptineiesarusiinbaceds 9

Cook County, Ill. v. United States ex rel.

Crmmliet,, S36 US. 119 CAS cviscencicssisiveccsssenecs, 9

Dastar Corp. v. Twentieth Century Fox Film

Cig SIF UES: 29 CHO skcssrdccisscssnieskecitectsdennsacs 9

Dow Chem. Co. v. Stephenson, 539 U.S. 111

EI ib sich decid cihacienehedchisldaaiekiashdaacabiibapedanemsicicakten 9

Howsam v. Dean Witter Reynolds, Inc., 537 U.S.

c.f: . SRC aR oeleay See seer ede fn 9

Inyo County, Cal. v. Paiute-Shoshone Indians,

ee RES Ry ge _ | ERR eine my mu er nee 9

JSK ex rel. JK v. Hendry County Sch. Bd., 941

Pad CSS TT Ce, TOR ca ictetiocs 3,4

Meyer v. Holley, 537 U.S. 280 (2003) 00... ee 9

O'Toole ex rel. O'Toole v. Olathe Dist. Schs.

Unified Sch. Dist. No. 233, 144 F.3d 692 (10th.

Rs BD attintesieavcsetncciartnantoaaann iatcahtaitcieadenisniics 6

iil

TABLE OF AUTHORITIES—continued

Pharm. Res. & Mfrs. of Am. v. Walsh, 538 U.S.

644 (2003)............ IPA ER ON he MEER R AR US ene

Polk v. Cent. Susquehanna Intermediate Unit 16,

853 F.2d 171 (3d Cir. 1988)........ AB SER Aa aE

Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d

DW I MOS IO os iavssscniessciessininanssaunieasunnnssnine

T.R. v. Kingwood Township Bd. of Educ., 205

Fe Ewe hs RIED cits resasciccinsrsisaonekensecckiods

Todd v. Duneland Sch. Corp., 299 F.3d 899 (7th

Re * SRR Sas sap tes ay ote on ever one Pee RTS Eker Bee

United States v. Navajo Nation, 537 U.S. 488

oF |) Neiatawtap eeeenans eters Piss sacau Ta auastadies ian cis cksdalaytbis

United States v. White Mt. Apache Tribe, 537

Pi MS 1 IE iiiikn caseices ckmacvrccdscaasicacncoctvouscchconss

STATUTES

SU BIO

ESE a eae eich Contin

SCHOLARLY AUTHORITY

Robert L. Stern et al., Supreme Court Practice

SON IE WD ickiss cis tie tld vap nabs tiateaaiadscbbcacccinnnckss

Page

9

REPLY BRIEF OF PETITIONER

In its petition, Hamilton County Department of Education

demonstrated that there is a widespread split among the

circuits on an important question of federal law: namely,

whether the Individuals with Disabilities Education Act

(“IDEA”) requires participating States, to provide disabled

children “some educational benefit” that is measurable 1nd

nontrivial, or a “meaningful educational benefit.” See Pet.

11-13. Respondents’ opposition fails to show otherwise.

Contrary to respondents’ claim, the division among the

lower courts is not a matter of mere semantics with no

practical impact on thousands of school boards and millions

of children across the country. Indeed, in explaining why it

was adopting the minority “meaningful-benefit” approach, the

Sixth Circuit stressed the fundamental differences between

these two standards. And, respondents’ lengthy discussion of

IDEA-related issues on which the lower courts agree is

entirely irrelevant. Whatever consensus there is on these

issues does not alter the fact that the lower courts disagree on

the legal standard school boards must satisfy to show that

they are providing a free appropriate public education

(“FAPE”). The interlocutory nature of the decision below

poses no barrier to review of this fundamentally important

issue, or to review of the lower court’s closely related, and

equally flawed predetermination ruling.

I. This case squarely presents the issue of whether the

IDEA’s requirement that participating States -ensure all

disabled children receive a FAPE is satisfied when a school

board provides a disabled child with “some educational

benefit” that is measurable and nontrivial, as this Court

indicated in Board of Education v. Rowley, 458 U.S. 176, 200

(1982), or whether they must instead satisfy a heightened

standard by providing a “meaningful educational benefit.”

The majority rule of the First, Fourth, Seventh, Eighth, Tenth, ~

Eleventh, and D.C. Circuits requires States to provide

2

disabled children “some educational benefit.” Pet. 11-12. In

contrast, the minority rule of the Second, Third, Fifth, Sixth,

and Ninth Circuits requires States to satisfy a heightened,

amorphous, and inherently subjective meaningful-benefit test.

Id. at 12-13. The latter standard, which originated in the

Third Circuit’s faulty reading of Rowley and the IDEA’s

legislative history in Polk v. Central Susquehanna

Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988), portends

grave constitutional and educational consequences. This test

not only runs afoul of the Spending Clause’s unambiguous

ebligation requirement, but it also encourages litigation on

educational. issues, which “will only serve to put further

pressure on already scarce educational resources.” Brief for

Amici Curiae National School Boards Association, et al.

(Amici Br.) 7.

Respondents try to obscure the division over this

fundamental question of federal law by arguing that the

circuits “uniformly recognize” the contours of a FAPE.

Specifically, respondents contend that all circuits understand

that a FAPE (1) requires meaningful educational access, (2)

does not require potential-maximization, (3) should be

individually tailored, and (4) requires mainstreaming to the

extent possible. Opp. 18-21. This showing is entirely beside

the point.

Consensus on these matters simply begs the question

presented here of how much of an educational benefit must be

provided. A court applying either the meaningful-benefit or

some-benefit test, for example, must evaluate a child’s

“unique individual characteristics and abilities,” id. at 20;

without considering a child’s cognitive skills and current

performance, a court could not determine what educational

benefit the child has received, 2nd thus could not determine

whether that benefit was meaningful (as the minority of

circuits require) or measurable and nontrivial! (as the majority

of circuits require). The uniform requirement of individual

=

3

consideration, therefore, does not demonstrate the absence of

a conflict on the substantive standard.

Nor is there any merit to respondents’ contention that the

different tests the circuits employ reflect nothing more than a

“split based on. semantics.” Jd. at 17. While respondents

claim that the circuits “do not perceive any meaningful

difference” between the two substantive standards, id. at 23,

the Sixth Circuit itself plainly (and correctly) believed these

substantive tests were meaningfully different. It categorically~

rejected the premise that an individualized education program

(“IEP”) provides FAPE so long as it “is reasonably calculated

to enable the child to derive more than de minimis educational

benefit.”” Pet. App. 33a. Reasoning that “[nJothing in Rowley

precludes the setting of a higher standard than the provision

of ‘some’ or ‘any’ educational benefit,” id. at 35a (emphasis

added), it held “an IEP must confer a ‘meaningful educational

benefit,” id. at 34a, and remanded for further fact-finding

based on this heightened standard, id. at 40a. In fact, the

Sixth Circuit went out of its way to note that “states providing

no more than some educational benefit could not possibly

hope to attain” what the lower court perceived to be the

IDEA’s “lofty goals.” /d. at 38a.

Other courts that have adopted the meaningful-benefit test,

T.R. v. Kingwood Township Bd. of Educ., 205 F.3d 572, 577

(3d Cir. 2000), as well as those that have adopted the majority

some-benefit rule, A.B. ex rel. D.B. v. Lawson, 354 F.3d 315,

319, 330 (4th Cir. 2004), Todd v. Duneland Sch. Corp., 299

F.3d 899, 905 & n.3 (7th Cir. 2002), and JSK ex rel. JK v.

Hendry County Sch. Bd., 941 F.2d 1563, 1572 (11th Cir.

1991)), have also recognized that the two tests differ in a

legally meaningful way. Like the Sixth Circuit below, for

example, the Third Circuit has explained its own precedent as

“squarely [holding] that ‘[t]he provision of merely “more than

a trivial educational benefit” does not meet’ the meaningful

benefit requirement of Polk.” 7.R., 205 F.3d at 577 (second

alteration in original) (quoting Ridgewood Bd. of Educ. v.

4

N.E., 172 F.3d 238, 247 (3d Cir. 1999)). By contrast, the

Eleventh Circuit has just as squarely rejected the meaningful-

benefit test “to the extent [that] ‘meaningful’ means anything

more than ‘some’ or ‘adequate’ educational benefit.” JSK,

941 F.2d at 1572.

Indeed, the decision below illustrates a key distinction

between the two tests. The Sixth Circuit explained that, under

the meaningful-benefit test, “where self-sufficiency is a

realistic goal for a child, a program that maximizes the

possibility of self-sufficiency could be required.” Pet. App.

38a n.17. By contrast, under the some-benefit test, a school

board would not have to maximize the potential for self-

sufficiency, as long as the IEP for the child resulted in

measurable, nontrivial educational progress.

Respondents’ elaborate efforts to parse and distinguish

these cases on their facts, Opp. 23-28, cannot mask this clear

conflict. Respondents concede (as they must) that the

Eleventh Circuit “rejects a meaningful benefit standard,” but

they strain to distinguish the law in that circuit by contending

that the court “equate{[d}] a [meaningful] benefit with

potential-maximizing.” Jd. at 24. This is not true: the

Eleventh Circuit rejected the meaningful-benefit test “to the

extent [that] ‘meaningful’ means anything more than ‘some’

or ‘adequate’ educational benefit,” JSK, 941 F.2d at 1572

(emphasis added)—vnot to the extent it “means potential

maximizing.”

Respondents likewise claim that, in adopting the some-

benefit test in A.B., the Fourth Circuit did not reject a

meaningful-benefit standard, but only a potential-maximizing

standard. Opp. 25. In fact, the Fourth Circuit’s standard

cannot be reconciled with the standard employed in the

decision below. In A.B. as here, the disabled child derived a

nontrivial benefit, see 354 F.3d at 328 (noting that the child

was making academic progress in the public education

system), but the parents demanded a program in which he

would “perform[] at a much greater academic level than he

5

ha[d]} done in the past.” /d. at 330 (internal quotation marks

omitted). The Fourth Circuit held that “this is not what the

IDEA requires,” and that the standards of a FAPE “are far

more modest.” Jd. The district court employed this same

standard below, ruling that Zachary had made academic

progress under petitioner’s methodology, and that petitioner

was not required to provide the allegedly superior program

respondents prefer. Pet. App. 60a-6la. Under the Fourth

Circuit’s some-benefit standard, the district court’s decision

plainly would have been upheld. The Sixth Circuit, however,

reversed, not because it questioned whether Zachary had

progressed under petitioner’s methodology, but because it

questioned whether that progress was “meaningful” given the

““remarkable’” results Zachary had achieved under the

Lovaas-style program. /d. at 7a n.6 (citing ALJ’s decision);

id. at 40a (faulting district court for failing to accord greater

deference to ALJ’s findings).

Respondents’ attempt to dismiss the Seventh Circuit’s

adoption of the some-benefit test, Opp. 24, 26, 28, fares no

better. The Seventh Circuit held that the relevant substantive

inquiry is “whether the IEP is reasonably calculated to

provide some educational benefit to the child.” Todd, 299

F.3d at 905 (emphasis added). In a footnote, the court

explained that “even if we were to review the 1998 IEP under

the Third Circuit’s ‘meaningful benefit’ test, we would still

affirm as the evidence amply satisfies that somewhat more

Stringent test.” Jd. at 906 n.3 (emphasis added). Contrary to

respondents’ view, see Opp. 26, this observation does not

render the Seventh Circuit’s adoption of the some-benefit test

dictum. Rather, it is the court’s observation that the

challenged program would pass muster under a meaningful-

benefit test that is dictum. That observation, moreover,

makes clear that Seventh Circuit, like the Third, Eleventh and

Sixth Circuits, understands the two tests to be different.

Respondents also suggest that the Seventh and Tenth

Circuits are meaningful-benefit circuits because they cite

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meaningful-benefit cases. Opp. 25-26, 28. In doing so,

however, those courts carefully avoided adopting the

meaningful-benefit test itself. Thus, the Seventh Circuit

explained that an IEP “passes muster provided that it is

‘reasonably calculated to enable the child to receive

educational benefits’ or, in other words, when it is ‘likely to

produce progress, not regression or _trivial educational

advancement.’” Alex R. ex rel. Beth R. v. Forrestville Valley

Cmty. United Sch. Dist. # 221, 375 F.3d 603, 615 (7th Cir.)

(quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,

118 F.3d 245, 248 (Sth Cir. 1997), and citing Walczak v. Fla.

Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)),

cert. denied, 125 S. Ct. 628 (2004). Likewise, the Tenth

Circuit cited a meaningful-benefit case for the proposition

that IEPs need not “‘‘enable the child to reach his or her full

potential.’’”” O’Toole ex rel. O'Toole v. Olathe Dist. Schs.

Unified Sch. Dist. No. 233, 144 F.3d 692, 708 (10th Cir.

1998) (quoting Walczak, 142 F.3d at 132).

Finally, respondents claim that the D.C. Circuit “simply

quote[d] Rowley for the proposition that a FAPE is one that

provides ‘some educational benefit’ without addressing the

content of that requirement.” Opp. 26. But the D.C. Circuit

did address the content of that requirement. In Reid ex rel.

Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005),

the court held that a compensatory award under the IDEA was

one requiring, among other things, programs to make up for

prior educational deficiencies. Jd. at 522. The court

distinguished this relief from prospective correction of a

deficient IEP, noting that an IEP conforming to the some-

benefit test “carries no guarantee of undoing damage done by

prior violations.” /d. at 523. By contrast, the meaningful-

benefit test employed below would likely require an IEP to

undo such damage, because an education that failed to

compensate for earlier, redressable educational injuries could

hardly be deemed meaningful.

7

2. Not only is this circuit split real, it has grave

constitutional and educational consequences. As the Rowley

Court warned, federal courts “lack the ‘specialized knowledge

and experience’ necessary to resolve ‘persistent and difficult

questions of educational policy.” 458 U.S. at 208.

Consistent with this warning, the objective some-benefit test

prevents courts from entangling themselves in educational

issues for which they lack expertise. Pet. 17. If a program

provides a measurable educational benefit that is not merely

trivial—if, in other words, “it is ‘likely to produce progress,

not regression or trivial educational advancement,” Alex R.,

375 F.3d at 615 (internal quotation marks and citation

omitted)—then a court’s inquiry under the some-benefit test

is at an end.

In contrast, the meaningful-benefit test will require federal

courts to make subjective educational policy judgments for

which they have no expertise. And, this in turn will force

educators to practice a form of defensive (and unduly

expensive) education. Pet. 17-18. Indeed, as amici explain,

educating the rapidly growing population of autistic children

is enormously expensive and entails complex medical and

educational policy judgments that are the subject of ongoing

debate. Amici Br. 8-11. The meaningful-benefit test

improperly thrusts federal courts into the midst of this

unresolved debate.

Additionally, the test runs afoul of the Spending Clause’s

“unambiguous” obligation requirement. Pet. 18. Indeed,

given its inherent subjectivity, this test prevents States from

determining the scope and nature of the obligations they are

assuming when they accept federal education funds. Nor is

this the only federalism concern the test raises. Amici Br. 15-

18. For example, the IDEA “leaves states free to adopt a

higher burden for establishing FAPE under state law,

including a ‘meaningful educational benefit’ if states so

desire.” /d. at 17-18 (citing 20 U.S.C. § 1401(9)(B)). States

8

are denied this flexibility, however, under a standard that

mandates such a result.

3. This case also raises a closely related and equally

important question regarding the evidence necessary to

establish the procedural violation of predetermination. As

petitioner has previously explained, the lower court’s finding

of such a violation was inextricably intertwined with the

central substantive question. Pet. 19; see also Amici Br. 14

(“At base, the predetermination decision is just another means

of expressing the disagreement of the Sixth Circuit with the

school district’s determination of the educational method-

ology that should be employed to serve Zachary.”).

Here, there is no dispute that Zachary received “some

educational benefit.” Thus, it is inaccurate to suggest, as the

lower court did, that petitioner decided that “because it has

spent a lot of money on a program, that program is always

going to be appropriate for educating children with a specific

disability,” regardless of whether the program provides an

educational benefit to a particular child. Pet. App. 28a-29a.

Rather, in finding predetermination here, the lower court

effectively ruled that it is unlawful for a school system to

decide to use an existing program’ that affords a child a

nontrivial educational benefit, even though other, more

expensive programs may confer greater benefits on that child.

This ruling has profound implications for school boards. It

allows parents to dictate unilaterally their children’s IEP

placements by inflexibly adopting hard bargaining positions,

then arguing that the school board’s failure to accede to some

or all of those demands is evidence of predetermination. It

also discourages expert educators from preparing diligently

for IEP meetings and using their best educational judgment,

and invites litigation. Amici Br. 13-15. Finally, the test

inappropriately penalizes educators working in a world of

limited resources for considering the cost implications of an

educational program for one student.