Educational Equality for Children with Disabilities: The 2016 Term Cases

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The general equality-versus adequacy debate replicates itself at a more specific level when we focus on the educational services provided to students with disabilities. When Congress adopted the Education for All Handicapped Children Act in 1975 (the statute now known as the Individuals with Disabilities Education Act), it estimated that a million disabled children “were ‘excluded entirely from the public school system’” with millions more “receiving an inappropriate education.” The EAHCA required that every child with a disability receive a “free appropriate public education.” That mandate plainly barred schools from excluding disabled children, but what kind of education was required? What was “appropriate”? In its earliest case under the EACHA — the Rowley case, decided in 1982 — the Court refused to read the requirement of an “appropriate” education for children with disabilities as guaranteeing that they receive “‘equal’ educational opportunities.” It instead adopted a variant of an adequacy standard. This past Term, the Court revisited Rowley for the first time since that case was decided 35 years earlier. In Endrew F. v. Douglas County School District RE-1, the Court rejected the “merely more than de minimis” test that the Tenth Circuit had applied to determine what educational benefit was sufficient for a free appropriate public education. But it specifically rejected the Petitioner’s argument that the IDEA required schools to aim to provide an equal educational opportunity. By rejecting an equal-opportunity standard for determining compliance with the free appropriate public education requirement, Endrew F., like Rowley before it, responded to the difficulty in specifying equal opportunity in a way that courts can implement. In some respects, that decision was understandable and perhaps sensible. But equal opportunity concerns still lie below the surface of the Court’s opinion in Endrew F., and they remain a crucial foundation of the IDEA’s requirements. And, exactly one month before it decided Endrew F., the Court made clear that children with disabilities are entitled to an equal educational opportunity. That entitlement rests, not on the IDEA, but on the ADA. In Fry v. Napoleon Community Schools, the Court held that a disabled child could enforce the ADA’s requirements of equal participation in education independently of the IDEA — and could do so without first going through the IDEA’s complex administrative procedures so long as she was not seeking relief for the denial of a free appropriate public education. When Fry and Endrew F. are read together, they establish that children with disabilities do have federal rights to equal opportunity in education — but that the ADA, not the IDEA, is the key vehicle for enforcing those rights. The equality right under the ADA is different in important ways from the one that the Endrew F. petitioner asked the Court to read into the IDEA, though.