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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1960

## Text

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

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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

6

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1663%3A3. Public record. Not legal advice.