Endrew F. v. Douglas City School District Page 16

Endrew F. v. Douglas City School District general information

Media for Endrew F. v. Douglas City School District

Audio Transcription for Oral Argument - January 11, 2017 in Endrew F. v. Douglas City School District

Ruth Bader Ginsburg:

One -- one aspect of -- of your position is you say yes, there is a substantive standard, some benefit.

And then you, in the course of your argument, said some, as interpreted by most courts, has bite.

But then you say de minimis is enough -- more than de minimis is enough.

Neal Kumar Katyal:

Correct.

Ruth Bader Ginsburg:

So some with bite and more than de minimis don't sound like equivalence to me.

Neal Kumar Katyal:

I think they are, and I think that's what the -- circuit after circuit has said, which is that some educational benefit, the language at page 200, means more -- more than de minimis.

And so -- and, you know, I think there is a whole variety of cases that have interpreted this. And, Justice Ginsburg, even this Court has actually had one of them.

In Florence v. Carter, that came from a circuit which had a "more than merely de minimis" standard.

The Court there found that the IEP substantively didn't meet the protections of the "some benefit" or "merely more than de minimis" standard.

Stephen G. Breyer:

We get that -- I mean, how does this actually work? I thought there is a statute in 1414 before that, it says you have to, school district, write an IEP.

Then it says what an IEP is. And one of the things it says an IEP is, is it is a statement of the services, et cetera, based on peer review stuff that will be provided for the child to advance appropriately and to make progress in the general education curriculum. Now, suppose the school district writes a statement called an IEP, but it does not show that the child is likely to advance.

Can't they go to the administrative thing and then go to court and say to the judge, look, they didn't write what they were required to write?

Neal Kumar Katyal:

Absolutely.

So --

Stephen G. Breyer:

Okay.

Neal Kumar Katyal:

-- if there is a statement, the key word --

Stephen G. Breyer:

So they have to write something that's minimally --

Neal Kumar Katyal:

-- is statement.

Stephen G. Breyer:

Now, let's suppose they write it, but they don't do it.

Neal Kumar Katyal:

Yes.

Stephen G. Breyer:

Now, isn't there something saying you have to follow the IEP?

Neal Kumar Katyal:

Correct.

Stephen G. Breyer:

And so, again, they go to court?

Neal Kumar Katyal:

Correct.

But what there is not --

Stephen G. Breyer:

And what they -- again they say they didn't follow the IEP?

Neal Kumar Katyal:

Correct, Justice Breyer.

But what there is not is something in 1414 which says that they've got to provide a significant benefit or an equal benefit --

Stephen G. Breyer:

But they do have to provide something that makes progress in the general education curriculum and --

Neal Kumar Katyal:

They have to follow the checklist that is a statement --