Let's Talk Sped Law

Season 2, Episode 6: U.S Supreme Court Case Endrew F. v. Douglas County School District with Attorney Jack Robinson

December 15, 2020 Let's Talk Sped Law by Special Education Attorney, Jeffrey L. Forte, Esq. Season 2 Episode 6
Let's Talk Sped Law
Season 2, Episode 6: U.S Supreme Court Case Endrew F. v. Douglas County School District with Attorney Jack Robinson
Show Notes Transcript


Attorney Jack Robinson
On March 22, 2017 the United States Supreme Court in the case of Endrew F. v Douglas County School District ruled that a school district's IEP must provide a child with a disability more than just a de minimis, or minimal, educational benefit. In a 16-page decision, Chief Justice John G. Roberts, wrote for a unanimous court ruling that School Districts must offer individualized education programs that are “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

In this episode, we sit down and talk with the attorney that represented the parents of Endrew F ("Drew") and argued the case before the U.S. Supreme Court and won -- Attorney Jack Robinson!

http://www.sprlaw.net/team/jack-d-robinson/


Speaker 1:

Welcome to the podcast. Let's talk sped law, a podcast dedicated to discussing special education rights of children with disabilities. I'm your host and special education attorney. Jeff forte. Now let's talk sped law.

Speaker 2:

This episode of let's talk sped law. My special guest is attorney Jack Robinson. Jack Robinson is a partner in the Denver, Colorado law firm of spies powers and Robinson. Most significantly Jack Robinson was the attorney that represented the parents of Andrew F in the United States Supreme court case. Andrew F vs Douglas County school district that was decided on March 22nd, 2017, and forever changed the standard in which a child receives a free, appropriate public education. Otherwise known as a FAPE. In this episode, Jack goes through all of the procedural history that led up to the Supreme court decision, as well as goes through what the standard now is for free appropriate public education. This is a great, great podcast to listen to, especially if you have a child that is on the spectrum and is not advancing in their school progress year over year on March 22nd, the us Supreme court is March 22nd, 2017. The U S Supreme court decided one of the most significant special education pieces in over 35 years. And the Andrew F vs Douglas County school district, the justices unanimously ruled under the individuals with disabilities education act that public school districts public school students with disabilities are entitled to greater benefits than some lower previous courts had determined. And it's my pleasure privilege and honor today to have on the , uh , national podcast here, the attorney that brought the cause of action that went through all of the , uh , losses at the lower court levels to victory at the us Supreme court level attorney Jack Robinson, Jack, welcome to the show. Thank you for having me, you know, when I, when I talk about the Andrew app decision to the clients that I present to and the clients that I meet and, and , um, do presentations to , you know, one of the biggest takeaways that I always tell families is the a in FAPE free, appropriate public education has for forever been changed as a result of the outcome that you achieved , uh, in the Andrew F. Case . Um, and w what I was hoping to do from , uh , you know, kind of from the parental perspective is to kind of get granular and talk about some of the facts of the case that the , the struggles , um, that you , uh , experienced in the lower courts, and even, you know, from the parent bar, you know, sometimes, you know, the opposition of actually even bringing it to the, to the, to the highest court in the land , um, to now, where are we now have this seismic shift in , uh, reversing or , or changing the standard from that of the Raleigh lower standard to the, to the Andrew F uh, appropriate ambitiously appropriate standard? And what is Raleigh and what is Andrew weapon kinda , kind of get into it , um, with, with all of your expertise.

Speaker 3:

So,

Speaker 2:

So you had the pleasure of representing Andrew F and his family , um, and Andrew was not making measurable progress of any sort , uh, in his public school district. Can you talk a little bit about drew , uh, what is his disability , uh, what, what was his school public school programming like? And , um, you know, really what, what the parents did, which is under the Ida filing a notice of unilateral placement. So I guess that'd be a good, good, good stepping point to start with.

Speaker 3:

Sure. So, you know, drew is , um, you know , um , a young boy with autism he's non-verbal , um , he has had , um, you know, a number of, of , um, sort of perseverative behaviors and , um, and fears, right. Especially at school. And it does, did impact his ability to say access school or education. One of his big fears, anxiety was , um, uh , public bathrooms. You know, he could not go to the bathroom at school. He had all also this incredible fear of flies or of things spilling over. And so, you know, and, you know , he's in second grade, right at this, at this time, second, third, fourth grade. And , um, you know, it couldn't go, couldn't go to the bathroom, say at school, he'd have an accident, he'd have a meltdown, the school district, or the had no plan in place to address , uh , Drew's behavioral challenges. And so their response was either to , um, further sort of remove him from the class and put them into a separate classroom by himself, or more often than not call his mom to come pick them up. And , and , um, because they can't, they could not , uh, sort of reregulate his, his behavior. And one of the big things was that, you know, the school district never did a functional behavioral assessments. They never really developed a behavior intervention plan to , um, to address his, his behaviors. Um, and so, you know, it turned into, you know, instead of trying to provide him any level of sort of academic instruction or socialization or communication instruction, it was all, you know, trying to sort of manage his behavior without , um, you know, first figuring out how to address that behavior.

Speaker 2:

Yeah. I remember when we met at Copa a couple years ago and , uh, you know , you know, you got consent of course and everything, but , uh , I , I was able to take a look at , uh , the behavioral supports and accommodations on, on Drew's IEP. And I mean, they were next to nothing.

Speaker 3:

Yeah. I mean, like his, I mean, they did have a draft behavior intervention plan that was not based again, it was not based on any FBA functional behavioral assessments , and it really dealt with one , um, you know , one issue, which was his fixation for separation on a timer, which they had used at some point in the past too , you know, as a, as an instructional tool, well , he got sort of obsessed with it. They took it away. Um, but after that, he, you know , sort of fixated on getting access to this timer. And so he knew , um, you know, a timer would be in some of the classroom or whatever. So he spent most of his energy trying to figure out how to elope from the class, from the class to go get that timer. Uh, and so his behavior intervention plan was sort of limited to how to deal with this timer issue as opposed to sort of the breadth of his behavioral challenges.

Speaker 2:

Right. Right. And it wasn't even really informed with ABC data, with an FBA with trying to find out what's triggering this behavior. Yeah. Um, so, so then the parents decide that they've had enough. Right. And they, they unilaterally placed true . Right.

Speaker 3:

So , I mean, the lead up to that was, and again, this is long before I was involved with them that , um, you know, his IEP know they reviewed his IEP is every year, second grade, third grade, fourth grade. Um, and all the goals and objectives really never, never. Um, and so, you know, when it came time to develop the IEP for Drew's fifth grade year, you know, the parents are like, you know, the goals and objectives are not changing. His behavior is deteriorating. Um, you know, w you know, we're done , you know , do you have any different plan for, for drew? And they're like, here's his IEP. It's just more of the same. And the parents were sort of like, we're done, you know, you don't get our child. Um, and they decided on their own to , to place him at Firefly, which is a private school that specializes in the instruction of children with disabilities to address sort of head on these behavioral , uh , challenges that were a barrier to his ability to, to learn , um, you know, and , and within , um , you know , and within a fairly short period of time, I think they withdrew him in, I don't know , may of , you know , may of 2010 site or may of the school year. And so the summer, you know, the first thing that's just Firefly did was, was to do a functional behavioral assessment , um, and to develop a behavior intervention plan. It wasn't in a fairly short period of time, they were able to tackle, say this bathroom challenge, which really, if you know, you can't go to the bathroom at school , uh , and you you're having an accident. And, you know , you're able to, you know, you're potty trained. Um, so it's not like he has to wear a diaper or pull-ups or something like that. But , um, they were able to , to address that, you know, by breaking these things down, introducing them to the bathroom door, to go in and wash his hands to, you know, that type of thing. And same with the flies, you know what I mean? You can't control whether a fly comes into the room or not. And this child had just this incredible fear of flies, and they were able to, to address that issue such that he could stay in , uh , in the classroom. And so the parents, you know, in the fall of that, that next , the school year, so just a few months later invited the school district back to say, look, you know, we've been able to address this. Um, you know, we would like to come back to the public school, his younger brother attends the same elementary school. Um , the school is right down the street from us. We would like to, you know, come back to the public school. Can you take what Firefly's doing and what we've learned from Firefly and put that into place back in the public school and IEP meeting. Again, this is before I was involved , um, it looked at the data, they looked at the functional assessment, the behavior intervention plan, everything, and their response was we're going to stand by our IEP from April of 2010. The doors of education are open to , to drew if you choose to come back. Um, and that was it. And then I think within a week or so, they contacted me and said, is this right? Um, you know, what do we do about it right in my always mind , my first responses , well, let me, let me call the school district's council and see what's going on and see if we can get this resolved amicably. The parents had no desire or no thought of , of entering into some legal challenge with the school district. They thought here we have a solution just makes sense. You have the ability to do it. You know, the school district had, you know, a BCDA board certified behavior analyst on staff. They have the ability to, to do what Firefly was doing. Um, but they just decided, no, we don't, we don't have to. And so that sort of was the beginning of, and then the school districts , you know, refuse to even work with us. And we were required, you know, forced to file a due process complaint. You know, we went to mediation, they never, they never offered a dime or never really offered any compromise whatsoever. Um, and you know, we're sort of off to the races at that point, or, you know, our , you know, the decision was, was forced upon us.

Speaker 2:

So it's interesting to get granular into the kind of procedural history with your Jack, because, you know, as most, as most people that are in this field goes, you know, you do want to try to make those stops and see where you can get to a point of reasonable collaboration and , um, you know, to your, to your credit and your, your client's credit. This was not a family that was looking for that pound of flesh for that, for that, you know , trigger of litigiousness right. They were , they were trying to move along to get along and you and your client were just , uh , uh, shut down with resistance every step of the way.

Speaker 3:

And two on that. I mean, they, yeah. I mean, you're absolutely right. I mean, they had no desire really to go down this route. And two , they have been very private in this, in this respect. I mean, even given sort of the, you know, the high profile of the case, the us Supreme court, and they've never allowed me to share say their last name. They didn't, I mean, they've done some interviews and whatnot, but they'd been very private in this, and this is not

Speaker 4:

Something that they've, you know , that they took lightly or ,

Speaker 2:

Um, yeah. But it it's been very hard for them. Sure. Yeah. Yeah. So let me , um, let me kind of put some of the law now in the desk, because the district comes back, they draw the line in the sand. They say that, well, he only has to make some progress , uh, and, and he, he has to just get access to some educational benefit. Right. And now we're talking about a board of ed V B V rally. So can you talk about the rally case , um, which was the law of the land before your victory and how the district applied that standard and what that standard really even is?

Speaker 4:

No, and I think that that's, it's an important part of, you know, sort of this story, because it does go back to, you know , really the case that I had back here and , you know, sort of the early two thousands, it was decided in 2008, it was Thompson school district versus loopy. Um, at least in the 10th circuit is the first time that the, that the circuit court of appeals addressed. Head-on , you know, what is an appropriate public education? How do we know what a fate is? Um, as you said before, you know, that capital a, what is the appropriate education and the tenants circuits , um, you know, went back to Raleigh and said, all right, well, what does rally say? Some educational benefit? What does that mean? And so they broke it down and basically says, you know, rally says, this is not an over standard, this fate . And I'm like, well, where do you get that song? You know, I don't think rally or the Supreme court used the word onerous or , or not. Um, but , uh, the tone circuit came up with this, the standard or what some educational benefit is. And basically it was merely more than diminimous products that is some progress on some goal, which was little more than, than nothing. And, and this is very important in my mind, you know, to, to keep that in context, when looking at what the Supreme court did in Andrew F , right, because at the time Andrew F began and it was decided the standard in the 10th surrogate and other circuits that adopted that same standard, this interpretation of rally of merely more than diminimous is some progress on some IEP goal . And it's a very, you know, it's very singular focused, right on here's your goal in your IEP? Is there evidence that that child needs some progress on at least one goal? And what is, you know, what's some progress some more than none. And so, you know, so that was in context when I was devastated by that decision. Right. And I knew that, I mean, what school districts could not show an impartial hearing officer or administrative law judge , uh, evidence of at least some progress, right? I mean, you're working on this one thing for a year. There has to be some progress and things . I mean, there's rarely, would there be a case where it's just complete stagnation or regression. And so I, you know, I knew what a challenge that was going to be for , for parents to prove that say IEP was not reasonably calculated to provide a fate . And so, you know, this Andrew F. Case comes along and I obtained , you know, eventually got his whole, all of his educational records from the school emails, correspondence, IDPs , everything. And there was not one document in there that showed progress. There are no progress reports, which isn't required by the Ida . There is no, I don't know , you know , no hand-drawn Turkey for Thanksgiving or , you know, I mean, there's nothing in there. And I'm like, all right, here, we're saddled with this merely more than diminimous FAPE standard. Here's a case that doesn't even rise to this level of merely more than de minimis . You know, there's no progress, how's the school district going to prove that that drew is making progress even under that standard. When on top of that, his behavior is clearly regressing and that's all through his IEP is they're unable to assess or addresses behaviors. And so, you know, we went to a due-process here in the , in the ALJ found that, you know, while the goals and objectives are the same from the second grade IEP, that search rate ID , the fourth grade ID , and then for the fifth grade IEP, which was the one in dispute , um, she noticed that, you know, some of the goals, not all of them , um, some of the goals included, you know, more sort of, you know, instead of counting coins to a dollar it's counting coins to a dollar and handing over the chain or something like that, you know, there'll be changes in the verbiage of the goal that indicated that it was more difficult than it was before, even though there's no evidence of progress. She , um , said under this loop piece standard data at least shows some evidence of, of some progress on some goal. Um,

Speaker 2:

So, so when the district was applying rally , which was the previous us Supreme court case , uh, from 1982, they're basically saying, look, we're, we're, we're giving through access to education. Um, it's a basic floor of opportunity , uh, take it or leave it. Right. And , and that was the, what essentially the 10th circuit , uh , had with the merely diminimous standard and Latin terms , the minimum or trivial or nominal they added, you know, as if insult to injury, they , they added the word , uh, merely to it. And, you know, I love when you presented on this and we then , uh , get into the judicial appointments with, with judge Gorsuch when he was , uh , being confirmed to the U S Supreme court and him being questioned by the Senate committee as to why he added the word merely to , uh, already diminimous state .

Speaker 3:

Right. You know, and two on the ad is, is so just to be clear, you know, this Thompson school district versus Lupita decision, which created this merely more than diminimous standard, you know, the author of that decision was, was Neil Gorsuch. You know , who's now, you know , associate justice of the U S Supreme court. And , um, you know, as you know, you know , the us Supreme court is very selective in the cases that it agrees to, to decide, you know, that the Supreme court doesn't have to take any case. It doesn't want to, in indeed out of the 8,000, say petitions for [inaudible] , which is where the petition to ask the Supreme court to take a case that takes what 75, you know, 80 cases a year, so that, you know, less than 1%. And that includes all cases, you know, criminal, civil, special education, disability, trademarks, everything. And so, you know, you know, and so, you know, we had filed our petition for an assertion , Ari , and the say the summer of 2016. Uh, and , um, obviously that was the election year. And, and, you know, we were lucky enough to have the support of the solicitor general. Who's basically the, you know, the president's attorney , um, who represents the department of education department of justice department of defense department of interior. And they were very supportive of our position that this merely more of the Domino's standard , um, did not fulfill the purpose of the Ida and that, you know , there needs to a markedly, more demanding standard for that. And anyway, you know, sort of everybody knows, you know, we have this change in presidency in November of 2016, or at least the election was November of 2016. And , uh, the actual changing of the guard, if you will, to , to Donald Trump was January of 2017. And so this case is really percolating right in the middle of that, that transition. And, you know, I was very concerned or everybody say on our team was very concerned that a new justice was going to be appointed. You know, judge Gorsuch at the time, judge Gorsuch, you know , was on Trump's short list and just the irony, maybe of judge Gorsuch, being selected, nominated, appointed, you know, and actually on the bench before our case gets argued and decided , um, you know, that he would be then in a position of, of basically deciding his own standard or the appropriateness of his own standard. And as you know, too , you know, you only need five, you know, you need five justices on your side, you know, and the concern, obviously being that all right , if , if justice Gorsuch were to be a decider of this, that he could whisper in the ear of other justices and Hey, look, I didn't just pull this, you know , out of my hat. I think here's the wisdom of this merely more than de minimis standard. Here's how, you know, here's how this works and , you know, right. I'm throwing me under the bus type thing. And so the time, you know, the case, you know, it was , was pretty incredible.

Speaker 2:

It was poetic quite, quite remarkable. Um, and you know, you had, you had losses and knows the , every step of the way before the us Supreme court victory. Right. I mean, how, how, how did you, how did you as an attorney and how did your clients as, as clients and in a , in a very emotional , um, practice of law, kind of keep the compass stay the course , um, without kind of losing, without losing your mind without losing hope.

Speaker 3:

Yeah. So I think, I mean, as most anybody could imagine, right? I mean, going into litigation against the school district is , is intimidating, especially when it's your child and your sort of child with a disability, you know, that, that, you know, you're advocating for your child's rights and you have to actually hire an attorney to, you know, to go against the, up against this big school district where again, your , you know , your other child goes to school. Um, I dunno , I think, I think school systems just by their nature, because we've been through the school system, it's, it's intimidating, right? You go into like, I go into a school for an IEP meeting or whatever, and you smell the cafeteria and, you know, in a tiny little chairs or whatever, and it's just very, there's something psychological about it's very intimidating. So it was no small, you know , um, feed for the parents to, to pursue this , um, you know, and have an attorney, you know , pursue this. And so I think their thought process or thought process as was in mind was, and I know the battle , um , it was going to be, but I really did maybe naively think that there is no evidence of progress here. There's, there's no progress reports , so there's no data. How can the school district prove progress when there is no data and there's evidence of sort of this behavioral deterioration. So we went in feeling pretty confident , um, and we get the decision and it was just to me, just outrageous to, you know, to recommend for the, for the ALJ to recognize there is no progress or there , no, there's no data, there's no progress reports. There's nothing, but I'm convinced from the special education teacher who said that , uh, you know, I loved having him in class, great job. I talked to the parents about this, this and this. We're always working together to, to make things better , um, or you know, her hanging her hat on the fact that there's changes in the verbiage of some of these goals, even though they're just repackaged year after year. And so I think, you know, my mind, I mean, I was very upset about it, but the parents I think were, Hey, look, you know, this was administrative law, judge, you know, we'll get a more fair shake from a federal court judge. And so we're, you know, we want to go that, that next step. And I think we felt fairly confident that the, that a federal district court judge , um, you know, would see the folly in the, the ALJs decision. And so we , um, you know, so we filed that you have to file a complaint in essence, it's an appeal and that's his whole, you know, briefing and argument. And, you know, that was , uh , I don't know how many years it took to finally get a decision from the district court. Um, but we got the decision and the, the us district court judge affirmed. So we lost again. Um, and that was, I think the parents were ready to throw in the towel at that point. So, you know what, all right here, we we've taken this as far as we can. We've lost again, you know, but in my mind, one, I think it's important to keep in context, you know, this Thompson school district versus Luke P decision that , um, that I'm still trying to recover from. And the district court's decision against us did say, you know, that I don't see any progress here either, but , um, I see at least minimal progress. I can't remember the exact words of the district court's decision, but I, in my mind anyway , sort of latched on to this, the words in the decision of, of minimal progress from , from the district court. And I'm like, well, minimal progress is not merely more than diminimous minimal progress is, is diminimous. Um, and , and anyway, maybe obviously naively or wishfully thinking that, that the district court had not even found nearly more than diminimous progress, but diminimous progress. And so that was, you know, or convinced the, you know, my clients , the parents to, to file an appeal to the 10th circuit court of appeals. And, you know, one of, I mean , the big argument was going to be, or was that not only, you know, to the facts of this case , uh , you know, establish, you know , the school district did not satisfy that merely more than de minimis standard, but two , this is 2008. Um, you know , I guess it's whatever 2000, I can't remember what year the newer then , um , 2014, 2015, something like that to say, Hey, look, here's this rally standard that was established back in 1982 and say, what you will about rally and different courts have interpreted differently, but we're now, you know, 2000 say 15 of the Ida has been completely, you know, amended reauthorized at least twice in 1997 in 2004. Um, we've come a long way since then. And, and each of the, reauthorizations the amendment of the Ida they've they've , um , made it more robust. And so certainly 10th circuit, you need to come into the modern era and sort of update your definition of free, appropriate public education. Here's all these other circuits that have said it's a meaningful educational benefit standard. We're stuck in this some educational benefit standard. Um, and here's the case to , to decide , um , you know, decide that that

Speaker 4:

Attend surrogate should , uh, adopt a more robust standard. And the 10th circuit sort of did us a favor from a legal standpoint, and actually taking that argument that I posited and , and they had gone through all right, here's, here's the different FAPE standards that have developed since rally. Um, and here's how they play out. And yes, one is, you know, more rigorous than some educational benefits. Um, but at the end of the day, the 10th circuit says, because, you know, our circuit has adopted this merely more of the Dominica standard. Our hands are tied. It's going to take either , um, you know , uh, a review on bonk by the 10th circuit to, to reverse that, or really the us Supreme court is going to have to decide this. And so, you know , um, so yeah , I mean the 10th circuit did at least say, yeah, there's a, there's a real circuit split here that needs to be decided by the Supreme court. And I, I think that helped sort of launch us to get the attention of the us Supreme court to take this case.

Speaker 2:

Yeah. So, so we're talking about , uh , post rally or post rally , but pre us Supreme court, Andrew F fate decisions and FAPE standards across, across all the federal circuits across the U S and you , you mentioned them , um, you know, for the benefit of the families that are listening, right. So I think there's kind of three , um, you know, meaningful education benefit versus some educational benefit versus what your 10th circuit had, which is merely more than diminimous benefit. And it's actually kind of good that they shot themselves in the foot and what appears to be the lowest of the three, although we're , we're kind of splitting an atom that can't be separated.

Speaker 4:

I think the whole, you know, and it was this, I dunno , you know, you read sort of the decision of the us Supreme court that says this merely more than de minimis standard is, you know, doesn't provide an education at all. It's like, you know, keeping a kid in the corner waiting for him to, to, to graduate. And it seems so obvious, you know, when you read, say the Intergraph decision in the Supreme, court's sort of staunch rejection of that standard that you think, how could that be the law of the land, or at least the 10th circuit, and then other surrogates that have adopted it for so long, you know, and I , I do think it's this , you know, the , you know , sort of this prevalent , um, uh, attitude in society, I guess about low expectation for children with disabilities, like, look, the Ida provides a lot of elaborate procedural safeguards, but it just provides that a child can go to school as opposed to excluding the child from going to school. And I think that that was the attitude we'll do the best we can once he's at school or she's at school, but there's no, there's no substantive educational benefit. There's no right to an education,

Speaker 2:

Right. Pulling some of the language that I have here. Um, it said that the Supreme court rejected the nearly committed messaging standard of the 10th circuit and said that when all is said and done, a student offered an educational program providing merely more than diminimous progress from year to year, it can hardly be said to have been offered an education at all. And for children with disabilities receiving instruction that aim so low would be tantamount to sitting ideally awaiting the time when they would be old enough to drop out and that's moving language there.

Speaker 4:

And it does sort of like for me anyway, I don't know , again, feeling responsible for that nearly more than the minimum standard in the first place when my choice, it didn't sort of make me feel kind of sick to that. Yeah . That, that was the law for, for so long knowing that, that, you know, it didn't provide that standard did not provide, you know, an educational benefit to, to children with disabilities at all. Yeah.

Speaker 2:

So, so now we get, we get the decision. You, you, you get the decision , uh , for the benefit of all, all children with disabilities in the entire us. And we now have this ambitiously appropriate decision or appropriately ambitious decision. So it's like a F w a P E. And , um, you know, how do you, how do you now tie the decision in for families that are about to go to an IEP meeting? They're about to sit down just like you did with Andrew F's parents, and how do you now go in to applying the , uh, ambitiously appropriate standard for children's IEP and, you know, there's kind of language in there that it can be applied in different ways for a fully integrated child versus a not fully integrated.

Speaker 4:

So my well, one, I think it's important to keep in mind in the Supreme court, in the States States the decision that this is a standard, right? It's not a, it's not a test. It is not a rubric that you, you know, you put, you know, these, you know , jurors or this data into a calculation, and it comes back out as to whether it's appropriate or not. And it has to apply to, as you just said, you know, all children are along that sort of spectrum of unique disabilities from the, you know, every child is unique. There's, there's significant disabilities, you know , um, all across the spectrum. And also too , you know, there's obviously twice exceptional children who are, you know , significantly say impaired or, you know , certain barriers on this aspect of their access to education, but, you know , uh , have all of these , uh , whatever talents or abilities on that. And so this one standard has to, has to apply to everybody. And, you know, in my mind, the way that I express it is is that, you know, the usual way of thinking. And I think that this is still , um, the thinking of , of many parents, of, of many school staff and administrators as well, is that, you know, the IEP is sort of the, be all and end all of the, of a child's learning plan, right? As opposed to the IEP, being that plan to allow the child whole access to education, just like any typical child. Right. And that's where the fallacy of the loop piece standard is merely more than the minimum standard was, was that we look at VIP as providing FAPE , right, as opposed to the IEP, providing a plan to obtain inappropriate education. Right. And so I can in the loop PKS, and in the lower interest cases, you look singularly at whether the child's making progress on goals, objectives contained in that IEP, as opposed to the whole child whole educational program , uh, is the child making appropriate progress in light of his or her circumstances. And two is that educational program as a whole, not just the IEP that the educational program as a whole, is that , um, appropriately ambitious to me that, you know , that is that's huge. And it does bring in certainly in the addressed context and , you know, many other children, whether with autism or , uh, social emotional challenges or whatever it does bring that, see that behavioral piece into play, it brings that social piece of the play that school districts are all too often to , um, say dismiss from the educational benefit calculation. If that makes sense as to say a little bit pager progress on behavior skills is part of faith . It's not just something to discipline or something to, to just address and set aside, but rather behavior in and of itself is a skill that , that comes into this progress equation in how behavior impairs or impacts, or , or presents as a barrier to the child's other , um, educational skill areas that is also part of the equation,

Speaker 2:

Right ? So, so practical applications of , of the Andrew WEF decision , um, you know, some takeaways are that it's now the law of the land that advancement from grade to grade with access to the general education curriculum , um, is an expectation for all children and, you know, progress, individual progress at the same time should be , uh, measured by the child's potential for growth potential, which is, which is really something that was not prevalent before the Andrew app decision. Um , it was just simply access to education, not potential for growth in their, in their IEP. Um, you know, I , you know, I, I often tell parents to empower themselves by reading the decision , um, because you're really trying to look to get more needs for the child on the front end now, proactively, rather than on the backend reactively when the program doesn't work. And now you've got to come back to the table, it's , it's almost kind of a , a proactive approach we're trying to attack issues and address issues before they worsen or , um, you know, don't progress at all.

Speaker 4:

Right, right. I think it too, you know, it's, it's, it's important to keep in mind that progress on specific goals and objectives does not equate to fame , right. That it's, it's broader than that. And I think that that's a fundamental distinction between, you know, merely more than the D or the some educational benefit of more than diminimous standard and say this Andrew West standard, once the former standard looks singularly ads, is there data to show he can count more coins at the end of the year than he could before, as opposed to, again, looking at fade with a capital a and looking at education with a capital E I guess that we're looking at the whole educational experience. Um, and is there progress ? It does go back to this notion of advancing from grade to grade, like typical students, the Supreme court even says that that's not necessarily TM , but does not necessarily equate to a fate if the child's social, emotional , um, say skills or behavioral skills or whatever, or not are also , um, not progressing just because of the child keen somehow put it together and get good grades and pass from grade to grade. But this whole other piece of the child , um, is not progressing and that's not a FAPE . And the school district has an obligation to address that as well.

Speaker 2:

Right. Yeah. And that potential for growth piece is you hit on it right there, where if a child's not, you know, fully integrated, you know, we're talking more of a child that has more profound disabilities , uh, self-contained classrooms , um, uh, uh, you know, in not necessarily in the mainstream classroom and they're not able to achieve grade level, they're not able to , uh , necessarily , uh, advance grade level year over year. The , the standard should be that the child's educational program be appropriately ambitious in light of their circumstances. And that's right from the language there. Um, and that's much more than that's a lot more than merely diminimous to say the least. Right. Um, which is such powerful language. So, so how now you get the decision , um, what was it like? I mean, what was it like to,

Speaker 4:

Yeah , yeah. Not to keep bringing up that sort of that loop PKS, but it was a traumatic experience in my, in my career, but it does tie into this that I'm, you know, driving to work, you know , um , and I guess DC is I'm in Denver. So DC is on the East coast are two hours later than that. We are on I'm driving to work. I think it's around eight o'clock or something like that. And gonna start getting these texts , um, you know, that the Supreme court has issued its decision. And of course I'm just, you know, I could barely focus and drive to , to work just thinking, all right, here, I can look it up on my phone or anything. So I'm just very anxious to get to work when we lose what's the decision, you know, look like you're going to get on that. You know, our two objectives were first and foremost to get this , um, merely more than de minimis standard, you know, rejected. That was, if we got that, that was a winner. And the second was, was to sort of raise the bar on what that FAPE standard would be. And so, you know, I get to work and, you know, open up my laptop and I'm looking for the decision. And of course, I know scroll down to the end, mostly to see whether, you know, we prevail or not. And as I was doing that, I started getting these texts, you know, these phone calls and you need to get on C-SPAN and see, what's see what's going on. I'm like, what are you, what are you talking about? And I'm still trying to go through this decision. So anyway, I , you know, get on, C-SPAN open it up. Um, and , you know, right as I was opening up , um, it was right in the middle of justice. Gorsuch's confirmation hearings in front of the, the us Supreme court and Dick Durbin , um, senators, you know, on the line , it was, was interrogating judge Gorsuch on his decision in , in Luke P basically, how could you, you know, this merely more than diminimous , how could you, you know, come up with this standard, what sort of animals do you have if you will against children with disabilities? And , um, you know, somebody had walked , honestly walked this indirect decision over to judge Gorsuch's combination hearing and , and was questioning about his, you know , legal analysis and coming up with this standard that the us Supreme court by the chief justice Roberts, an eight zero decision it's staunchly , um, rejected in the language that you just read , um, just before. And it couldn't have been more strong language than say your standard judge Gorsuch that you came up with on your own absent, any precedence , um, that proceeded it. Uh , the Supreme court has said that , that, that provides no education to children with disabilities at all. And so, you know, from my standpoint, it was just like, here, here's this Supreme court decision that we just won. And in that same moment, it was, you know, being used to challenge, you know , judge Gorsuch for , um, this, this loopy decision , um , from a few years before. So it might, it was sweet justice, I must say,

Speaker 2:

Absolute, absolute poetics. We justice. Indeed. Indeed. Well, so how's drew doing now, but you know, most importantly, you know, how, how is he and where are you in the, in the status of , uh, of, of the case as far as it being brought down again and , um, you know , uh , recoupment of the, of the unilateral placement , um, the , the hours upon hours of , of attorney work that you put into the case, where are, where is it ?

Speaker 4:

Right. So, I mean that, you know , that's the other piece of this too. I mean, it really was this litigation Odyssey that, you know , we, from the time we filed our due process complaint to, you know, the, the Supreme court's decision was , um, seven years, something like that. Um, and so it's just an incredibly long period of time. And then the Supreme court, you know , as we actually requested it to do, we asked it to , to remain to the lower court , to, you know, hopefully adopt a higher standard, but then the lower court would , um, apply that new standard to that same, you know, 2010 IEP, the determined already under this merely more than de minimis standard, which we rejected. Um, uh , does the, does this same IEP? Does it hold muster or, you know , will it pass this new standard that the Supreme court has established? And the Supreme court says that's not our decision to make , um, we're going to remand it, send it down to the 10th circuit court of appeals to make that decision. So it gets remanded the 10th circuit, you know, they order us to breach it a new under this new interest standard . So that's brief wait . Um, and then instead of deciding that the 10th circuit says, we're going to send that back to the district court , um, to, to make that decision. And so we go back to the, so the decision gets remanded to the district court and there , you know, the school districts are Al's emotions , basically asking them the district court to remand it back to the ALJ originally decided the case for a whole new hearing, for new, new exhibits, new witnesses, a whole other hearing. Basically they started all over. And of course, you know, we filed our briefs that I file a brief, you know, prevent that. And at the end of the day, the district court says, no, I'm not going to remand it to the ALJ, but I am going to have you re brief this whole thing, and we're going to have an oral argument on it. And so, you know , we went through that process and the judge Babcock district court judge, who decided this , uh, you know , ruled very strongly in the parent's favor. That's , Hey, look under the 10th circuit's application of the mural and more than Dominica standard in itself. So this was, you know, without question that I'm very close case and here, you know, under this new sort of interest standard , you know, this , this IEP does not provide a Juul FAPE , so we win. And of course the school district then appeals to the 10th circuit and I'm thinking, all right, here, here we go again, are you never gonna , is this never going to end? Um , and we had a brief whether the appeal was right at the 10th circuit. Um, and during that process, we ended up reaching a settlement with the school district where the school district agreed, you know , um, you know, basically agreed to settle it. I was going to say the terms of the settlement are confidential, but then I don't know, the school district published it all on their website anyway. So, so it's , it's not, I guess there's a newspaper article about the settlement , so it's , it's not private. Right.

Speaker 2:

Right. And how is drew doing now?

Speaker 4:

So drew is doing really well. He is now, and the, you know , transition PR you know , transition piece of the Ida . He's actually still getting transition services through , um, through Firefly and , and , um , you know, has made incredible, incredible progress. And he just, you know, sort of shuttered a think where he would be , um, you know, if the parents had not done anything and they just continued down that dominant path and probably would not be at all a productive member of society like he is today. Right . Right.

Speaker 2:

Well, thank you so much for, for taking the time to walk us through an amazing case with an amazing outcome that really has just had such a tremendous impact on the special education bar and for parents. And most importantly, for the children that need it the most. Um, I, on behalf of everyone that listens to the podcast, I want to thank you for the work that you've done. And , um, really, it's just, it's just great to hear about the case and the struggles and the challenges and the facts behind it. Um, but again, congratulations on , on the result . And it's now up to parents that are listening to apply the standard that you've created through the Andrew Webb decision at the U S Supreme court. So,

Speaker 4:

Right. And I like on that point, I think that's probably the most important points to me. Um, and I'm always, I appreciate you , um , you know , taking the time to delve into this and, you know, my mission is , is to spread the word on this as well, but it is one of those things where, you know, this decision, you know, is not the end , um , in , is sort of like Brown vs board of education, where yes, you know , maybe more of a bright line, the Supreme court says, you know, that schools have to be desegregated, but you know, it takes years and it takes, you know, further litigation. It takes parents, it takes advocacy groups to , to ensure that that is moving in the right direction. And that's the same with, with this decision is to say, all right here, yes , it is one thing for the U S Supreme court to say, we're rejecting the standard. We're adopting this markedly more demanding standard. Um, but as you just said, it requires parents then to take that and to be ever vigilant and to , to pursue this too , because the school district naturally is, you know, their desires to say, doesn't change anything, right? This was not a game changer in therefore, this is what we're doing anyway. And so let's, let's keep this in focus. Let's, you know, let's not, not really change anything we're doing. Whereas the parents are the ones who have to push the envelope and swim against the tide, I guess. And to ensure that, that this decision, the standard is, is interpreted expansively as opposed to know more restrictively. Right. Well, Jack Robinson, thank you again for, for being on the show and for empowering further pit powering parents on the Andrew F ambitiously appropriate standard. Thank you so much for your time. Thank you. It was my, it was my pleasure.

Speaker 1:

All right , ladies and gentlemen, thank you for listening and stay tuned for another episode of lifestyle spread block .