By Emma Brown and Ann E. Marimow March 22 at 6:27 PM The Supreme Court on Wednesday unanimously raised the bar for the educational benefits owed to millions of children with disabilities in one of the most significant special-education cases to reach the high court in decades.
The opinion rejected a lower standard set by the U.S. Court of Appeals for the 10th Circuit and used in a subsequent case by President Trump’s nominee to the high court, Neil Gorsuch, during his tenure on the appeals court. The high court’s ruling quickly became the focus of questions Wednesday at Gorsuch’s confirmation hearing.
In its unanimous ruling, the Supreme Court said that a child’s “educational program must be appropriately ambitious in light of his circumstances” and that “every child should have the chance to meet challenging objectives” even if the child is not fully integrated into regular classrooms.
[Court to decide: What do schools owe children with disabilities?]
The court stopped short of setting a bright-line rule, deferring to the expertise and judgment of school officials and acknowledging the unique set of circumstances of each child with a disability.
But the justices sent a strong, clear message with their unanimous decision that the 10th Circuit standard was too low.
Any standard, the court said, that is not centered on “student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act” when it passed the 1975 law that provides federal funds to help states cover the cost of educating students with disabilities.
“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” wrote Chief Justice John G. Roberts Jr., who wrote the 16-page opinion. “For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to “drop out.” ’ ”
Lower courts have been split on what level of educational benefit is guaranteed under the federal law known as the Individuals With Disabilities in Education Act, or IDEA. The majority of appeals courts, including the 10th Circuit, say that students are owed “some” benefit, which courts have interpreted to mean just more than trivial. Two appeals courts established a higher bar, calling for a “meaningful” benefit.
The Supreme Court’s decision more clearly defines a uniform nationwide standard for the more than 6 million children with disabilities who qualify for services under IDEA. Advocates said that the ruling would not only affect decisions in the relatively few special-education disputes that go to court but would also more broadly shift the balance of power between families and school officials, pushing schools to set more ambitious goals tailored more carefully to each student’s particular needs.
Gary Mayerson, a board member of the advocacy organization Autism Speaks, said that the timing of the decision “couldn’t be better,” as it comes just before the spring season when many schools draw up individual education plans for students with disabilities.
“School districts will have the perfect opportunity to do the right thing and create programs that are consistent with the new clarified standard,” Mayerson said.
The court did not raise the bar as far as some advocates had hoped, to call for “substantially equal” opportunities for students with disabilities — a standard that critics said could have significantly increased costs. Francisco Negron of the National School Boards Association said the decision was “measured” and set an expectation that “school districts will be comfortable with and reflects in many ways how they’re already operating.”
The justices released their decision Wednesday morning as Gorsuch was testifying before the Senate Judiciary Committee during the third day of his confirmation hearings.
Almost immediately, he was asked about his application in 2008 of the lower 10th Circuit standard. He said that standard was set in a 1996 decision, which determined that services have to be “more than de minimis” or, in other words, result in at least minimal progress by the student.
“I was bound by circuit precedent,” Gorsuch told the committee, saying that ruling against a child with autism and his parents was “heartbreaking.”
He added that his circuit was unanimously taking the same position in all such cases. Now that the Supreme Court has said that is the wrong standard, he said, “Fine, I will follow the law.”
[Gorsuch hearings Day 3: Democrats press judge on his independence from Trump]
Sen. Richard J. Durbin (D-Ill.) said Gorsuch had read the law the wrong way and made the precedent worse by adding the word “merely” to the standard.
In response to a series of follow-up questions from Sen. Amy Klobuchar (D-Minn.), Gorsuch rejected her suggestion that he was “anywhere out of the mainstream” in applying the standard rejected by the Supreme Court. He noted that several other appellate courts had relied on the same standard.
Scheduled to testify at Gorsuch’s hearing later this week is Jeff Perkins, the father of the child with autism whom Gorsuch ruled against in the 2008 case.
The case decided Wednesday involves Endrew F., a Colorado boy who was diagnosed with autism at age 2.
His parents pulled him out of a public schools in Douglas County, south of Denver, after his behavior deteriorated dramatically and he made what they said was almost no academic progress. They placed him in private school, where he made rapid progress, and they sought reimbursement for tuition. They are entitled to that reimbursement if they can prove that the public school failed to provide a “free appropriate public education” under federal law.
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Sign upThe 10th Circuit ruled in 2015 against Endrew, finding that he had made enough progress under his education plan to satisfy the “merely more than de minimis” standard. Gorsuch was not part of the panel that decided that case. The Supreme Court’s decision on Wednesday sends the case back to the appeals court to decide in light of its decision.
William Trachman, a lawyer for the Douglas County schools, said the district is confident that its work already meets the Supreme Court’s standard and looks forward to proving it.
Colorado lawyer Jack Robinson represented both Endrew and the Perkins family in the 2008 case. Robinson said that until now, too many schools have treated parents dismissively, understanding that — because of the 10th Circuit’s rulings — they would not be held accountable for failing to adequately serve a child with a disability.
The Supreme Court’s decision changes the equation for schools, he said, giving parents a “posture of greater strength” in negotiating for what they believe is best for their children.
Robert Barnes contributed to this report.
Last month I wrote about my experiences growing up as a sibling of autism and how it inspired me to write a children’s novel titled No One Needed to Know. To sum up, I wrote about how my brother and I grew up in the 70s and 80s, before autism was a common diagnosis. My brother is four years older than me, and he was never formally diagnosed as autistic. Only after I graduated college and began working in special education did I (along with my mother who was a teaching assistant in special ed) put the pieces together that he was on the spectrum. It explained a lot. You can read the whole post about it here.
I realize that my tween/teen experiences with my brother being thirty-plus years ago might not seem relevant to young people going through school now. Things were definitely different back then. There was no information about autism or any support for siblings. I think that people weren’t as open-minded about differences in ability back then either. We’ve come a long way in that regard, (although we can always improve in this area).
So, I decided to find some younger people to discuss their experiences as siblings of autism. I was curious about how things are going now. I found three lovely people through Twitter who are advocates for autism and were willing to answer some of my questions. Oli Monks is in his twenties and is seven years older than his autistic brother. Freya O’Horo is seventeen and has two younger brothers five and eight years younger than her, with the youngest being autistic. Chloe Schurr is nineteen and closest in age to her younger autistic sister who is seventeen.
Now, aside from their age differences to mine, all of these people are the older sibling whereas I was younger than my autistic brother. I think that makes a bit of difference in that older siblings are often more protective of their younger sisters or brothers, and not so much the other way around. So, it didn’t surprise me much that when I asked, “Did you ever feel anger/resentment/embarrassment with regard to your sibling?” they all answered that they had not.
Monks wrote that he “felt very protective” of his brother Nicky. He said he wanted to control the social situations with his friends sometimes, but then his brother became popular with his friends and it wasn’t a problem. O’Horo also said she was protective of her brother and “never felt angry or embarrassed by Dian’s autism.” Schurr claims that her sister had some trying behaviors but that they usually happened at home, and she was the one who sometimes broke down at school in front of her teachers because “I didn't want my family to see, I needed to stay strong for them.”
As I mentioned, I never knew my brother was autistic while we were in school. Being younger, I didn’t fully realize that my brother was in special classes and had developmental differences until I was about twelve-years-old. A lot of things suddenly began to make sense to me once I knew. I asked the siblings when they learned about the autism diagnosis and how they handled it. As an early intervention teacher, I know that autism isn’t diagnosed before the age of 18 months, so finding out that a younger sibling is autistic has to be a shock to a kid after two years or so of having this younger brother or sister in the family.
Monks was ten when he learned his 3-year-old brother was on the spectrum. He says, “I remember little things that I’d pick up about Nicky’s development being different to other kids but to be honest I wasn’t very tuned into it growing up and my parents were quite conscious not to tell me too much.” He recalled how excited they were before his brother was born, walking together and discussing baby names. He doesn’t remember when or how he was told. “I just remember that there were things we did to help Nicky with different challenges and that was something I was just used to.” Monks said that during his teen years he sometimes acted as a “3rd parent” to his little brother. Still, the love and devotion to his brother is clear as he repeated several times, “Nicky is the best guy I know.”
O’Horo, like me, was about twelve when she learned her 2-year-old brother was autistic. “At first I wasn’t sure what autism was or how that would affect him but over time I learnt more. I did notice that he was a lot quieter than most kids his age, especially since we have two cousins that are the same age as Dian. He always seemed to be quieter than them and liked to keep to himself.” It made her nervous at first – for him, not herself. “I was worried that he wouldn’t get to do the kind of things Tuán and I do and that he would miss out. Over time you learn that as long as he does the things he wants it doesn’t matter what the world expects him to do as long as he’s happy.” They now share many interests like swimming, dancing, horse riding, and cycling.
Schurr’s little sister was not diagnosed with autism as a toddler. The family struggled for years with her troubling “meltdowns” that teachers explained away as behavioral issues. “In fact [we] were told that it was a family problem and that we should seek family therapy.” Naturally, none of the techniques for changing “bad behavior” worked on Schurr’s sister, and things worsened. “My parents were exhausted and tied up trying to figure out how to keep her calm and to keep her from melting down, I couldn't speak to my sibling for fear of her kicking off, and so I didn't have anyone. I felt pretty isolated and my confidence dropped. My parents tried their best to keep me protected from the trauma and disturbances so I could be me and live my own life but it was too difficult.”
Eventually her parents even separated the family because it was too difficult. Schurr lived with her dad, while her sister lived with her mom. This was the breaking point, and they finally paid for an assessment. “Now this only took 2 months to get the final diagnosis of Autism (high functioning), DCD and Dyspraxia, compared to the 8/10 years it took trying to go through free services.” Schurr’s sister was fifteen-years-old at this point. “At first it didn't sink in that there was actually finally an explanation for the whole situation. It was a relief, and over time I read more about autism and it started to make sense.” The family was able to come back together and begin mending. It has been two years since the diagnosis. “When we didn't have the diagnosis, there were days we just wouldn't speak to each other because I didn't know how to, and I was too afraid that something I would say would cause a meltdown, but now that we have the diagnosis we have finally become closer and are able to talk, hold conversations and go out and have a good time.”
In my book No One Needed to Know, my main character Heidi is dealing with bullying. She sees her brother getting bullied, and then when her friends find out about his autism, she gets bullied too. I asked my interviewees if they ever struggled with bullying. Monks said that bullying was a rare occurrence for him and his brother. “Every now and then you get the odd shallow or ignorant comment. In the past I’d just take it and not challenge it, but now I realize just how important it is to challenge their views and knowledge of what being autistic is really about.” O’Horo told me her brother “can get treated very badly by the public from stares to comments but the worst is when certain family members ignore him or treat him like there’s something wrong with him.” Schurr confessed, “I never really knew whether [my sister] was bullied or not because it's not a physical disability, there was nothing obviously wrong with her, it was inside and she kept to herself. She didn't share her feeling or emotions even if you asked.”
My brother also didn’t share that he was bullied; I only knew because I witnessed it. I put that into a scene in No One Needed to Know where Donald is beaten up by some kids and tells his mom and sister, “I know they got out of the car and said I rode in front of them.” When he’s pushed to explain more, he stammers and begins to break down, unable to express himself clearly. Like Monks, toward the end of the book Heidi decides the best way to combat the bullying is to find a way to teach others about autism and special needs.
All three siblings I interviewed expressed so much pride in the achievements of their siblings in school and extra-curricular activities. Also, their experience with autism has led each of them to find a way to be proactive in autism awareness and advocacy. Monks is a blogger and motivational speaker. His blog Place with Purpose is full of advice and ideas for autistic people seeking jobs or who are already in the workplace. Monk says the motivation behind building this blog came from the fact that his brother is now eighteen and “I want to help him as much as I can to lead the life that he wants to and be as independent as possible. It’s what he wants, and I’ve got a lot of faith in him that we can get there. One of my ambitions with Place with Purpose is to employ Nicky or help him find a great role, which would be amazing.”
O’Horo is still in school herself, but, because of her brother, she has already helped at different early intervention programs and helped with pony therapy. She does charity and fundraising work. “I decided to be an advocate for Autism when I decided to set up my business “All About Autism” as a part of a school project.” Now her aim is to “share as much as I can to other siblings and families to help them in any way I can. I do this through my blog and my books All About Autism and All About Autism Children’s Activity Book.
Schurr has finished her 6th form at school and is now a teaching assistant for a dyslexic student. “I attended a siblings support group to try and give myself a better understanding of the condition and how I could help my sister. At the end of this session the lady running it approached me and asked if I'd be interested in helping her run a couple of the sessions as I had a unique and different story because of the late diagnosis. I had been through a very tough time and it showed people that however hard it does get you can still come out stronger and for the better.” And now she has. I know that she will be speaking and teaching for years to come.
I hope you have enjoyed this insight into a few lives handling autism with love, compassion, generosity and courage. I’d love to know your stories, too, so please feel free to leave comments below. Scroll on down to find links to the blogs and books mentioned in this post.
Learn more about my novel for young readers ages 9-13, No One Needed to Know and read an excerpt at www.dgdriver.com/no-one-needed-to-know.html or pick up a copy at Amazon https://www.amazon.com/dp/069282913X
Chloe Schurr offers advice and support to people who want to know more about autism or being a sibling of autism on her Twitter account. https://twitter.com/askchloeautism
Posted March 14, 2017 Autism Society
The Autism Society of America, representing more than 3 million people on the autism spectrum and nearly 12 million family members, strongly opposes proposed changes to Medicaid in the American Health Care Act. These changes would jeopardize services for the nation’s most vulnerable people, particularly those with disabilities. We are urging the House and Senate to preserve the federal-state partnership that has made Medicaid a crucial safety net for them.
We are particularly opposed to curtailing the Medicaid expansion under the Affordable Care Act, which serves as a lifeline for millions of people with disabilities and many of their caregivers. We also oppose the creation of a per capita cap and the elimination of the essential health benefits requirement, both set to take effect in 2020. Tight state budgets will not be able to make up for these changes, leading to a decline in services and supports for people with disabilities.
Slashing federal support for Medicaid by an estimated $880 billion, according to the Congressional Budget Office, over 10 years would force states to reduce eligibility and services, placing the health and well-being of people with disabilities at risk. Our grassroots network of nearly 100 affiliates will not stand by and allow these cuts to happen. They could lead to unintended consequences affecting millions of people with disabilities who seek to live as independently as possible in their communities.
The complex and far-reaching changes to Medicaid alone warrant increased transparency and additional legislative hearings, with greater public input. We urge both the House and Senate to slow down and take into consideration the views of those who would be directly affected by these reductions.
As the nation’s largest organization serving individuals with autism and their families and caregivers, we will continue to monitor your actions in the coming weeks and months. We will send our affiliates and members a scorecard informing them how their senators and representatives vote on this or any measure affecting Medicaid eligibility and benefits. We hope Congress makes the necessary changes to this legislation – or votes against it.
Optomen Productions, the TV production company behind Employable Me on BBC2, is looking for neurodiverse job seekers to be involved in a new production of Employable Me in the US.
Employable Me is the series where extraordinary job seekers aim to prove that neurological differences should be viewed as an asset rather than an obstacle in the workplace. With the help of experts who serve as mentors, these neurodiverse candidates unlock their hidden talents and find the job that best suits their unique skill sets and strengths.
We recommend you read about the show and watch the show trailers and an episode or two before sharing with your members.
Additional information and instructions on how to be considered are provided in the flyer below.
EMPLOYABLE ME Dowloadable Flyer PDF
Congress is on a fast track to repeal major portions of the Affordable Care Act (ACA) impacting people with disabilities and to make drastic cuts to the Medicaid program. The level of cuts over time would decimate the Medicaid program.