What Watching the Endrew F. Supreme Court Case Taught Me About Nuance and FAPE

On Wednesday, January 11, the U.S. Supreme Court spent an hour discussing not only how the words used when talking aboutfree and appropriate public education(FAPE) matter, but how the nuance of those words matters, too.

The oral arguments in what’s known as the Endrew F. case had a powerful impact on me, both professionally and personally. I’m an educator and parent of two children in special education. And I had the honor of being in the courtroom for the arguments.

I heard the justices of the highest court in the land discussing what parents like me often talk about: How much “benefit” does a school need to provide a child through his IEP?

Justice Samuel A. Alito Jr. expressed it best when he said in the oral arguments, “What everybody seems to be looking for is the word that has just the right nuance to express this thought.”

I couldn’t help but think of how much these nuances have mattered in my own experiences. Here are a few things I heard that drove that home for me.

“You’re reading it as saying ‘some benefit,’ and the other side is reading it as saying ‘some benefit.’” —Chief Justice John G. Roberts Jr.

While this emphasis drew laughter in the courtroom, it really struck me as the heart of this case and the heart of many disagreements between schools and parents. How you emphasize and interpret words matters.

It’s something we try to teach kids who struggle with social cues. It’s the reason an email might sound just fine to me, but sound rude and dismissive to someone else. When the words are ambiguous, the emphasis is what gives them meaning.

I know this as a parent speaking to teachers. And as a teacher I was always aware that how I said something to parents made a difference, too.

The difference between “some benefit” and “some benefit” means a lot when it comes to special education. All kids deserve to benefit from their education in a way that helps them make progress.

“I can’t readily agree with your understanding [that] it’s all procedures and we just have to make sure the procedures are followed, because what [IDEA] does is it sets up an administrative process. And it says when you have disagreements about the provision of a FAPE, you go to this administrative process.” — Justice Elena Kagan

It sounds complex, but the concept Justice Kagan was talking about is critical to the issue of benefit. And when she said this to Neal K. Katyal, the lawyer representing the Douglas County School District, I have to admit I was relieved.

Katyal had told the court that what Congress meant in IDEA is that if an IEP team has gone through the extensive checklist of things to consider in creating an IEP, it’s done its job.

That stung. The needs of my children—as a parent I have three, and as a teacher, I’ve had hundreds—can’t be addressed by a checklist.

A parent’s concerns about their child can’t be addressed by pointing to a checklist and saying everything that needed to be done was done.

Justice Kagan pointed out that disputes are really about whether FAPE was provided, not about whether the right procedures were followed.

“What is frustrating about this case and about this statute is that we have a blizzard of words. And if you read them literally, it’s not clear to me that they mean anything different.” —Justice Samuel A. Alito Jr.

Again, Justice Alito hit it right on the head. In special education, there are a lot of words thrown around about how to measure progress. Has a child made significant progress? Has he made meaningful progress? Substantial progress?

Justice Alito and Irv Gornstein, a counselor to the solicitor general at the Department of Justice, who argued in support of Endrew, agreed these words are all synonyms. But courts across the country have interpreted them in different ways.

It’s no wonder I sit in IEP meetings where the team is struggling to find just the right words to use to write goals. If everything technically means the same thing, but nobody agrees on what any of them mean, what are we supposed to do?

It’s paralyzing sometimes. If my sons make meaningful progress, is that the same thing as significant? Is it “some benefit” or “some benefit?”

The Takeaway of the Arguments in Endrew F.

This case is really about one thing: how much is enough for our kids under the law.

For now, it’s enough for me to know that the Supreme Court is listening to the concerns of parents like me. And it’s more than enough to have been there to witness history in the making.

Understood had the privilege to interview Jack Robinson, attorney for Endrew F. and family; Michael Yudin, former assistant secretary for special education and rehabilitative services; and Lindsay Jones, chief policy and advocacy officer for the National Center for Learning Disabilities; after the arguments. Watch the interview:

The court is expected to make a decision in the case by late June. You can read the full transcript of the arguments here.

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