This reflection was initially posted on January 11, 2017, following oral arguments in Endrew F. v. Douglas County School District.

If you’ll notice, I haven’t posted about the work that I do since the election. This is largely because special education procedures as they exist in this country are unlikely to be directly affected by the incoming administration. (The last major update to the IDEA, the federal special education statute, was cosoponsored by our favorite friend Jeff Sessions in addition to Hillary Clinton, Barbara Mikulski, Ted Kennedy, and Lamar Alexander.)

There are, of course, major concerns about how a DeVos regime, through the encouragement of charter schools and other school-choice mechanisms, might trample the rights of special education students and functionally deprive far more students of the guarantees of a “free appropriate public education”, and much of the relief that can be granted is unfortunately backward-looking and already falls far short of making children whole as is.[NB: These fears came to the forefront in DeVos’s confirmation hearing.]

However, the Supreme Court held oral arguments today, trying to determine exactly what “appropriate” means in a legal context. As stated at oral argument, ten circuits currently use a “more than de minimis” standard to determine whether a school is in compliance in conferring educational benefits on a child.

In this case, a child with autism and behavioral concerns had educational goals set for him that barely changed (or, depending on the year, did not change at all). He also received a proposed behavioral plan that the parents viewed as entirely inadequate to deal with his behaviors. They pulled him out of public school and placed him in a private school for students with autism, where he has been making significant academic progress. Assuming that the parents can prove that FAPE was denied at the public school, they’d otherwise fulfilled the requirements to show that the child’s tuition should be reimbursed.

Most of the argument focused on trying to capture a standard somewhere in between every special education child meeting grade level and a benefit standard that had no teeth. (There is also an interesting Spending Clause piece for conlaw wonks.) However, in passing, counsel for the school district, before getting interrupted with another question, appeared to be setting the stage for making an argument against the private school placement because of the preference toward mainstreaming (that is, a child should be as close to the general education setting as possible in order to prepare them for the real world).

In other words, as the argument goes, the academic and behavioral benefits that had accrued at the private school, which according to the record included this child mastering multiplication, learning to type, and overcoming his fear of public restrooms within weeks, should be tempered by the fact that this child was spending this time outside of the public school setting.

This raises the fundamental tension within the IDEA. The statute requires a free appropriate public education, but within the “least restrictive environment” possible. When the IDEA was first passed, kids with severe impairments tended to get funneled onto a track that led to lifetime institutionalization, regardless of whether they might ultimately be able to be an independent (or partially independent) productive member of society with the right education.

Runaway institutionalization is unequivocally bad. People with special needs cannot and should not be segregated from mainstream society whenever it can be helped. However, in an area where the justices seemed particularly lost, I feel like it is instructive to consider the push toward mainstreaming in the context of what we want our society to look like.

I don’t impute any sort of malice into these comments, but do we think that a child who grows up not making significant progress either academically or socially will be a happier, let alone productive, member of society just because that limited development occurs in a less restrictive setting? Is there somehow any benefit to disincentivizing the effort to increase the quality of life of people who can progress academically? (For what it’s worth, there was general agreement that cost is not an issue for instruction reasonably calculated to confer educational benefit, which seems both obvious and fundamental to me.)

Many of the justices were struggling with how to come up with a broad standard in an area where there is no real prevailing theory as to what works and does not (and probably rightly so). But it seems uncontroversial to me that the trade-off between a more restrictive environment in school and a less restrictive environment as an adult would be fundamentally consistent with the purpose of the IDEA.

The justices, of course, are constrained heavily by the text of the actual statute, since this is the state of our jurisprudence in the 21st century. But there is still room to tilt the balance away from worrying about restrictiveness and actually focusing on—dare I say it—education.

In order to actually fulfill its promise as the great equalizer, our education system must, well, provide equal opportunities. Not only in this context, but in the context of race, class, and so forth.

But also in the context of special education. 6.5 million students (or about one in every eight public school students) currently receive special education services in this country. They must be seen. They must be heard. They must be served.