This was an interesting week in politics for the parent of a special needs child.
One of my children has an autism diagnosis, and like many homeschoolers, I struggle to figure out what is appropriate for my child in the homeschool context. Pushing too hard can lead to tantrums or shutdown. Being too lenient leaves the child in charge, and stifles progress. Grade level material just laughs at me. And yet, there are those sparks of brilliance…
Knowing what is appropriate is no less an issue in the home than in school, and so I am grateful to Chief Justice Roberts for the bit of guidance given by the short but sweet (and unanimous) Endrews, F. opinion. The opinion was just handed down this past week.
The decision dealt with the following problem: schools are required by law to provide children with a free appropriate public education, or FAPE, but over the years, in different states, the meaning of “appropriate” has been in some dispute.
The definitions of the word “appropriate” ran the gamut from meaning essentially “equal” or “the same” to “merely more than de minimis.” This second definition was apparently used by Supreme Court nominee Gorsuch in another controversial Colorado case, also about a child with autism.
Teachers vs. Parents
Many homeschoolers have withdrawn their special needs kids from school for that very reason: the education their child was receiving did not seem appropriate at all to the parents. But like the different Federal Circuits, parents and teachers and administrators and homeschoolers all see things differently.
Teachers may have a different view about what is appropriate, informed by their experience in the classroom. Whether they are trying to guide children in a self-contained classroom, or trying to include a few troublesome children with IEPs (Individualized Education Plans) in an otherwise smoothly functioning general education classroom, “appropriate” may mean many things.
Parents, as a general rule, want “the best” for their children. Teachers often want the same, but may, out of necessity, settle for what is practical and “doable.” The law only requires an appropriate education.
I was told many times that my child was not succeeding in inclusion. That he was better off in a self-contained class with others like him.
Such comments smack of segregation. It is very hard to accept, that despite your best efforts, your child may always have difficulty with academics. Public education is a system of tiers, a series of rungs that a child must climb up, and the struggle to get to the top is what motivates so many students. Yet the race to the bottom may be more familiar to our kids.
Most people do not resent gifted children when they qualify for special treatment, or higher level classes. And yet, when a child is in great need of assistance in the classroom, we resent him for holding back the rest of the class. We resent the time it takes to craft an IEP to suit and address his unique needs. We resent his difference.
That is why it is so important to know what is appropriate. In short, to know what is fair.
Appropriate in the IEP
What should an IEP look like, if it is an “appropriate” one?
The Supreme Court in Endrews sent the case back to the lower court to determine if:
the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.
“Reasonably calculated.” The people who are doing the calculating, the IEP team, can’t just hope it will work. They need to have a reasonable expectation that it will work.
“Enable”: A child with a dis-ability needs to be en-abled, to even out the playing field. That is what the IEP should try to do. He may not be a star pitcher, but at least now he can pick up the ball.
“Make progress.” An IEP whose aim is only for the child to stand still, from year to year to year, is not enough. Parents will nod their heads in familiarity, since they have no doubt come across goals that have been repeated from year to year, or spent endless months tracking progress on basic, uncomplicated items such as “greeting teacher.”
“Appropriate in light of his circumstances.” This is the money phrase. Special education is all about addressing individual needs. It makes sense that a child’s unique circumstances (HIS circumstances, note: not “the circumstances”) should determine whether the progress he makes is appropriate.
Even if the Kid has Autism?
During oral arguments it was apparent that several of the justices struggled with the question of what an appropriate education should look like, especially when applied to a child with autism:
Samuel A. Alito, Jr.
Well, I understand what an equal outcome would be, but I don’t understand what an equal opportunity means when an equal outcome is not practical.
John G. Roberts, Jr.
So how does that actually work in — in practice? I mean, I understand in the Rowley standard, you’re dealing with someone who has a disability that is readily addressed so that they can keep track with grade progress.
But if you’re out of that realm where that is not a realistic goal in light of the child’s potential, how do you decide what it is?
(a little later)
John G. Roberts, Jr.
Maybe there’s still time to [sic] grade level standards.
I would think in many situations those would largely be irrelevant.
With a child with significant intellectual differences, how could the Supreme Court guarantee the right to an “equal” education, given how long it might take to reach that goal, and how ultimately unobtainable it might prove to be? Wouldn’t this be a harsh result for the schools?
At the same time, treating these children “the same” might not be enough to give them equal opportunity: my son, for example, when placed in a regular education class with no supports, did predictably poorly, and was removed.
More Than Merely More
Yet offering these children an equitable education, that is, even-handed in light of their differences, demands more than just “giving up” on them when they can’t keep up with the others. The mere offering of something, the “merely more than de minimis” standard, does not cut the mustard.
Supreme Court nominee Judge Gorsuch’s hearings were still going on when the Supreme Court issued its opinion. This was a bit of an embarrassment, since it overturned the “merely more than de minimis” standard for FAPE which Gorsuch used in a controversial Colorado opinion about a child with autism.
Take on the Challenge
Another lovely phrase from this opinion comes from the following passage:
A child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child’s educational program must be appropriately ambitious in light of his circumstances… The goals may differ, but every child should have the chance to meet challenging objectives. [Emphasis mine.]
That is music to the ears of special needs parents everywhere. The child should be challenged. Not discouraged. Not spurned for failure to achieve what, for him, may be impossible. But not spoon-fed, at a level below his ability, either.
We should continue to push forward, undiscouraged, as teachers and as homeschool parents. These children. too, deserve what we expect for our children without disabilities: An appropriately ambitious, challenging program. But to make it challenging, rather than insurmountable, we must tailor it to their individual strengths and weaknesses.
We’ll have to wait and see what the lower court decides about the Endrews IEP: was it “reasonably calculated to enable the child to make progress appropriate in light of his circumstances?”
How Objective Are We?
Offering challenging objectives requires that we all question our own objectivity. Putting aside our different, and often conflicting, points of view, we must rationally decide what, where and how to teach a child with disabilities. So that he, too, can make progress in an appropriately ambitious, challenging program.
The Supreme Court has truly given us all something to think about.
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