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At the Supreme Court today - arguments in a case about public school special education that advocates say is the most important in three decades. The justices are weighing whether federal law requires public schools to provide more than the bare minimum in special services for children with disabilities. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In the 1970s, Congress found that most children with disabilities were treated as nonpersons in the public schools - either totally excluded or left to sit idle in classrooms until they were old enough to drop out. In 1975, Congress passed a federal law, since then strengthened multiple times. It requires school districts to provide an individually designed public education for each disabled child. In exchange, the federal government provides some of the funds for these services.
The question before the court today was what level of services the schools must provide. Must it be the bare minimum, or is it something more? On the steps of the Supreme Court, Stanford law professor Jeffrey Fisher, representing an autistic boy from Colorado and his parents, argued for something significantly more.
JEFFREY FISHER: The school district here is saying so long as we give barely more than a de minimis benefit, just we teach you a little bit of something, that is enough. We think that's a recipe for second-class citizenship.
TOTENBERG: But Francisco Negron of the National School Boards Association said that if the court tightens the standard, it could cost some school districts lots of money. And as he observed...
FRANCISCO NEGRON: Congress promised basically 40 percent funding years ago, and it's only historically been funded at 15 percent.
TOTENBERG: Inside the courtroom, Lawyer Fisher argued that the standard specified by Congress in its most recent amendments requires sufficient services so that each disabled child can keep up with his peers. Chief Justice Roberts balked, noting that in this very case, the student's disability was so severe that he could not keep up, even with the help of an aid.
Lawyer Fisher replied that when the school refused to provide more specialized services, the parents sent the boy to a private school for autistic children. When he made marked progress there, the parents returned to the school district, asking some of the same expertise be provided in the public school. And when the school refused, that's when the parents sued the school district for the annual $70,000 private school tuition.
Justice Kennedy focused in on what could be reasonable for a school district to pay. Lawyer Fisher said most services do not cost all that much, but he conceded that there are some extreme cases, like a child with a ventilator, where the costs are $30,000 or $40,000. Nonetheless, Fisher contended, costs cannot trump what the law requires.
Representing the school board, lawyer Neal Katyal maintained that Congress has not established a specific standard for compliance with the law, rather that it has established procedures for designing individual plans for each child. But, interjected Justice Kagan, when there's a dispute, if the standard that has to be met is so low, so easy to meet, then the question is whether the student is receiving a free appropriate education.
Chief Justice Roberts - you're reading the law as requiring some benefit, and the other side is reading it as saying some benefit, and it makes a difference. After all, Roberts observed, a school district could provide five minutes a day special instruction, and that's some benefit. But, he added, the law says significant, meaningful, whatever. It's more than simply de minimis.
Justice Alito called all this a blizzard of words meaning nothing, but by the end of the argument, there appeared to be a majority of justices willing to put more bite into the guarantee of a free appropriate public education for children with disabilities. Nina Totenberg, NPR News, Washington.
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