On November 9, 2016, we all woke up to a different reality than we might have imagined the morning before the presidential election. I was asked to write this blog post prior to the election and to explore what the new presidential administration would mean for special education and disability. At the time I was asked to write, I began to plan and outline what I would say. After the election, I took a long time to return to writing this blog because, honestly, I have no idea what the new presidential administration will mean for special education and disability. Let’s just get that right out there up front. I have no earthly idea what kind of impact this next presidential administration and Congress could have on special education and disability law in our country.
Sure, I could wax eloquent for a few paragraphs on the impact that school vouchers could have on students with disabilities. I could write an obituary for the Office for Civil Rights and what that could mean for enforcement of special education and disability law. But the truth is, those of us in the special education community have already discussed these things ad nauseam with each other and with our poor significant others and friends who are not in the special education community. None of us really know what the next four years will bring to special education and disability law and policy. Often I feel like the best thing for special education and disability law and policy would be for the next presidential administration and Congress to leave it alone. The status quo could be better than unknown changes. This may be hard to believe, especially after the way I have started this blog post, but I actually have a lot of hope for special education and disability law and policy over the next four years. I have hope because of two things: potential change we may see from the U.S. Supreme Court and our ability to effect change at the state and local level.
For those of you who have followed the U.S. Supreme Court this term you already know that this is an incredibly exciting time in special education law. This past fall I told my special education law students this nearly every week. During the fall semester these students had the privilege of diving into court briefs from two special education cases before the U.S. Supreme Court – Fry v. Napoleon Community Schools and Endrew F. v. Douglas County School District. You may have heard Fry referred to as “the service dog case” or the case with “Wonder, the Goldendoodle.” Fry is actually not at all about whether a student has a right to be accompanied by a service dog at school, but whether the Frys should have exhausted their administrative remedies under the Individuals with Disabilities Act (IDEA) even though they are not bringing their lawsuit against their daughter’s former school district under the IDEA, but are instead bringing it under the Americans with the Disabilities Act and Section 504 of the Rehabilitation Act, and they are seeking a remedy not available under IDEA.
As if discussing the exhaustion of administrative remedies under the IDEA is not enough fun for all special education policy geeks, the U.S. Supreme Court did us the favor of taking a second IDEA case this term. The Endrew case could arguably be the biggest IDEA-related case of our careers, for those of us who were not around when the Rowley case was decided. The question before the U.S. Supreme Court in Endrew is what level of educational benefit a student with a disability is entitled to receive through a free appropriate public education. When you read this blog post, I hope that you will be spending your days and evenings dissecting the oral arguments that took place on January 11, as I will be. The Court seemed dissatisfied with the language used by the 10th Circuit to describe the FAPE standard, “merely more than de minimis,” but did not seem impressed by much of the proposed language suggested by the parents’ attorney or the attorney representing the Solicitor General. We will all look forward to the U.S. Supreme Court’s decisions in these cases and what they will mean for our work. I am very hopeful that the outcomes of these cases could have a very positive impact on special education and disability policy.
I am also hopeful about the impact that we could have on special education law and policy at the state and local levels. Many of us may be unsure about the impact we could have on federal special education and disability policy, but I think there is a real opportunity to have an impact here in Kansas. There are many new members of the Kansas Legislature, including many current and former educators. The special educators who work and learn atop Mount Oread have so much to offer the Kansas Legislature and the Kansas State Board of Education. I hope you all – students, faculty, alumni, and friends feel encouraged and empowered to take your ideas and your research to the Kansas Legislature and the Kansas State Board of Education to help make special education better here in our great state. Wherever you live and work you should also consider taking your knowledge and your expertise to your local school district and talk to them about your ideas for improving special education. We should all work harder in the next four years toward bridging the gap between research and practice.
As you look ahead over the next four years I encourage you all to feel as hopeful as I do. Follow the Fry and Endrew cases and think about what the outcome of each could mean for your work. Follow state and local education issues and actively seek out your state senator, representative, and state and local board of education members. Talk with them about how we can improve special education in our state. Let’s not sit back and see what will happen to special education and disability law and policy over the next four years. Let’s work to make a difference right where we are, right now.
Laura Jurgensen is an attorney with the Early Childhood, Special Education, and Title Services team at the Kansas State Department of Education and teaches Law and Special Education at the University of Kansas. Laura earned her J.D. at Washburn University School of Law and did her undergraduate work in elementary education at Pacific Union College in California. She is thrilled to have accidentally fallen into a career in special education law. When she is not reading cases and OSEP letters, she and her husband are chasing their two toddler boys and loving (nearly) every minute of it.