ENDREW F., A MINOR, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS, JOSEPH F. AND JENNIFER F., Petitioner v. DOUGLAS COUNTY SCHOOL DISTRICT RE-1, Respondent
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Sonia Sotomayor
Interviewee(s): Jeffrey L. Fisher, Irving L. Gornstein, Neal Kumar Katyal

John G. Roberts, Jr.: We'll hear argument this -- this morning in Case No. 15-827, Endrew F. v. Douglas County School District. Mr. Fisher.

Jeffrey L. Fisher: Mr. Chief Justice, and may it please the Court: The IDEA does not permit a school district to provide a child with a disability a barely more than de minimis educational benefit.

Rather, what the Act requires is for the school to provide instruction and related services to the child that are reasonably calculated to provide substantially equal educational opportunities. The school district's primary response to our argument is that the standard I just described to you does not appear anywhere in the operative text of the IDEA.

But let me get right to --

John G. Roberts, Jr.: Well, it also -- it also didn't appear anywhere in the original petition, did it? I'm looking at Footnote 8 in your -- your opening brief where you note that substantial educational benefit was the standard that was discussed in the petition and then a significantly different one in your -- your opening brief.

Jeffrey L. Fisher: Well, Mr. Chief Justice, we don't intend it to be significantly different.

What we do intend, as we describe in that footnote, is to give more detail as to how the standard works. I'd say --

Ruth Bader Ginsburg: The standard -- the standard you're asking us to adopt, substantially equal opportunity, that does appear someplace.

It appears in Justice Blackmun's concurring opinion in Rowley, and the court itself did not adopt that formulation, did not adopt substantially equal opportunity.

So you're asking us to adopt a standard that the majority already had before it and didn't adopt.

Jeffrey L. Fisher: Justice Ginsburg, yes, Justice Blackmun proposed a standard similar to the one that we offered the Court today, but that was 1982.

And Congress has amended the IDEA twice, in 1997 and in 2004.

And in the findings and purposes, it now describes the way the Act works with exactly the words I'm giving you: Equal educational opportunity.

John G. Roberts, Jr.: Well, that raises a concern under the Spending Clause.

I mean, the Spending Clause operations are pretty clear.

The Federal government proposes a deal to the States.

If the States want the money, they have to agree to these provisions. And now you're saying that the content of those provisions, though, is changed by new legislation. And I just wonder whether that puts some strain on the idea that the States have agreed to these provisions when they accepted the offer under the Spending Clause.

Jeffrey L. Fisher: No, I don't think it does.

I think it's critical to get to the text for exactly the reason you say, Mr. Chief Justice. We know from Rowley that there's a substantive guarantee in the IDEA, and we know from Rowley, even in 1982, the way the Act was put together, that that substantive guarantee must track the way that the IEP provisions -- the individual educational program provisions work.

That's at page 203 and 204 of Rowley. So to get to the text and exactly what the State agrees to, you start with the FAPE definition, the definition for free appropriate public education.

We all agree on that.

Sub D of that definition says that the school has to provide an education, quote, "in conformity with the IEP plan." Then, to understand what that means, again, this is straight out of Rowley and straight out of the text, you turn to what the IEP provisions provide, and those are laid out at pages 52A and 53A of the government's appendix. And, in a nutshell, what they say over and over again is that standards, generally speaking, for children with disabilities should be aimed at the general educational curriculum.

So what you do is you start with the general educational curriculum that applies to all kids, then you identify the child's disability and how it impacts that child's ability to participate and progress in that general educational curriculum.

John G. Roberts, Jr.: How does that work?

Jeffrey L. Fisher: Then --

John G. Roberts, Jr.: I'm sorry.

How does that work with students whose disabilities generally wouldn't allow them in -- in their own -- with their own potential to follow the general educational curriculum? I understand how it worked in Rowley --

Jeffrey L. Fisher: Right.

John G. Roberts, Jr.: -- where we were dealing with someone with a particular disability, but one that was rather readily and easily addressed.

Jeffrey L. Fisher: Uh-huh.

John G. Roberts, Jr.: Here you have a very different context.

I mean, you would not say that the goal here, would you, was to progress consistent with the general educational curriculum?

Jeffrey L. Fisher: Most likely not all the way up to grade level in this case, Mr. Chief Justice.

But that question, just as you asked me earlier, is expressly answered in the statute. So on page 52A, on the bottom of 52A in sub CC, what this -- what the IEP provisions say is that for children with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives are appropriate.

And then the rest of the IEP provisions describe how you set those goals to meet those alternate achievement standards. Now, what the Congress is referring to -- and let me just emphasize as I go through these statutory provisions, these are all from 2004, much postdating Rowley. What Congress is referring to with respect to alternate achievement standards are laid out at page 79A of the government's appendix.

These are the amendments to the ESEA that Congress enacted in the No Child Left Behind Act and that have been aligned with the IDEA.

So if you look at page 79A, there are four subdivisions -- or five, I'm sorry -- five subdivisions that describe what you do for the child, Mr. Chief Justice, that you were asking about.

And perhaps the most important is -- are sub 3 and sub 4. So if -- if you'll permit, because the text is so important, I'll read them to you. Sub 3 says that the standards in this situation must, quote, "reflect professional judgment as to the highest possible standards achievable by such students." And then what sub 4 does to complete the circle and make absolutely clear to the States and everybody else that this is required, it says those standards must, quote, "be designated in the individualized education program developed under the So the question you asked is expressly answered in the text.

It is expressly answered in the IDEA.

And so to bring me back to our standard, "substantial educational opportunity" are the words Congress used in the findings and purposes to encapsulate what is required by these IEPs.

Anthony M. Kennedy: I suppose -- I suppose it's implicit in your standards and in some of the provisions you read that what we're talking about is the word "reasonable" that we see throughout the law. Do -- do you see any -- any function for that word and, in addition, as part of what reasonable is, is there any place to discuss the cost that the -- would -- would be incurred for, say, severely disabled students?

Jeffrey L. Fisher: Let me answer both reasonableness first and cost second. So reasonableness, yes, is an essential feature of the Act.

And in Rowley itself, the Court said that the plan that the -- that the IEP team puts together needs to be, quote, "reasonably calculated to achieve the level of educational benefit that should be guaranteed." So, if you go into court -- or actually here, you don't start in court; you start with a hearing officer.

And if there's going to be a dispute, what a parent has to show is that the plan the school adopted was one that no reasonable educator would have adopted. And so reasonableness is an important part of the -- of -- of the way a court would look at it, the hearing officer, and indeed the IEP teams. Now, with specific reference to cost, let me say three things about cost, Justice Kennedy.

First of all, the vast, vast majority of IEPs and programs put together under the statute don't cost much at all.

They involve things like providing braille textbooks, providing an iPad, providing some specialized instruction by a -- by a staff member who's already on staff. There are going to be some extreme cases, and the Court saw one several years ago in the Garrett F. case, which involved a situation where a child with a ventilator needed full-time nursing services, and the Court quite clearly said that even there, where the school district was saying that was going to cost 30 to $40,000, the Act does not permit cost to trump what the Act otherwise requires. And the reason why, Justice Kennedy, is because Congress expressly thought about this.

All the way back to the 1975 Act what Congress said is this: Yes, it costs money and that's why it's spending cause legislation and that's why we're giving money to the States, but it is cheaper to provide services to somebody while they are being educated than it is to pay out of the public fisc for the rest of that person's life than make up for the deficit that a bad education provided.

Ruth Bader Ginsburg: Mr. -- Mr. Fisher, the tab here is -- is at $70,000 tuition?

Jeffrey L. Fisher: Well, Justice Ginsburg, at the time this case was litigated, it was more like $40,000 in the private school.

Currently, it is closer to the number you described.

But the tab to put the child in private school -- remember, the school district had an opportunity come -- to come forward with -- with a proper IEP plan to provide Drew with a FAPE, and it simply --

Anthony M. Kennedy: And in your -- in your position, what -- in your view, what should have been done for this student?

Jeffrey L. Fisher: The first and most important thing that should have been done is what's known as a behavioral assessment should have taken place to figure out why Drew's behaviors were so dramatically interfering with his education.

That's something that every reasonable educator would have done; all the peer-reviewed research say it's vital.

It's the very first thing that the private school did in this situation.

And if you look at the plans that are laid out in the supplemental Joint Appendix, that was never done. And what's -- what's particularly striking, Justice Kennedy, is that even after Drew was really, in an emergency situation in the spring of his fourth grade year, put into private school, the parents came back to the school district again six months later in November and said now that we see he's progressing, now that they've done a behavioral analysis, what will you do, because we actually would like to have him educated in the public schools.

And it's amazing that all they did was offer -- and this is at pages 182 and 183 -- the exact same failed behavioral plan that they had been using in the fourth grade.

Ruth Bader Ginsburg: Weren't they going to -- what -- the -- the conference that the parents didn't attend, they had scheduled a conference, and I thought a behavioral expert was part of that conference.

Jeffrey L. Fisher: So there were two conferences, Justice Ginsburg.

There was a first one in April of Drew's fourth grade year that the same old plan was presented with no experts. They then offered to have another conference a month later in May, and what the parents decided at that point is things had reached such a critical and emergency stage, that Drew was falling so far behind, they had to put him in a private school, so they did not attend that meeting. But, Justice Ginsburg, what my friend on the other side leaves out of his brief is that what I just described, which is the parents did return in the fall once Drew had been stabilized and did offer to meet with the school district.

The school district brought no autism expert to that meeting, and the plan that they proposed to deal with his behavior is verbatim the same plan that they had offered back in the fourth grade. And so at that point, the -- the parents had no choice reasonably but to leave Drew in private school and to seek remedies under the Act.

And there are going to be -- and I think this returns me to Justice Kennedy's question about cost.

We recognized, and Congress recognized, and this Court recognized in Burlington, that there are going to be rare extreme circumstances where children are going to be put into a private school or otherwise need significant resources --

Stephen G. Breyer: Why didn't the -- why didn't the -- the statement that an IEP, what it has to do is it has to, based on peer-reviewed research, when practicable, will -- will be provided to the child to advance appropriately towards attaining the annual goals to make progress in the general education curriculum and so forth.

So you've just described if the situation is that, wouldn't that have been violated? Or if they wrote the IEP that way, wouldn't you be able to go to court and say, look, there is their IEP and they didn't live up to it? So you already have two arguments under the statute, and the problem that's working in my mind is if we suddenly adopt a new standard, all over the country we'll have judges and lawyers and -- and -- and people interpreting it differently and -- and -- so why isn't the present situation sufficient?

Jeffrey L. Fisher: Yeah.

Stephen G. Breyer: Besides having nine people who don't know -- I mean, at least speaking for myself -- don't know that much about it, creating a new standard out of legal materials which are at a distance from the people, the children and the parents, who need help.

Jeffrey L. Fisher: So I think the critical reason why the Court in Rowley itself gestured towards needing the need for a overall standard that encapsulates the Act and the reason why we ask for it here today is that you will find in every brief in this case -- our brief --

Stephen G. Breyer: Uh-huh.

Jeffrey L. Fisher: -- the red brief, their amicus briefs -- everyone agrees that school districts, I believe -- this is at page 29 and 47 of my friend's brief.

They agree that the IEP provisions have to be followed.

Everybody agrees that.

The difficulty is, is that it just doesn't happen.

Stephen G. Breyer: Well, I'm sorry if it doesn't happen.

What are we supposed to do to make it happen? I mean, you have a statute that certainly seems to say that and you have a system for enforcement.

And how does us suddenly using this word "equal" -- you know, the word "equal" has history from a lot of different areas of law.

And -- and what do you do with a wide range of -- of disabilities, a huge range in individual students and -- and -- do you see what I foresee?

Jeffrey L. Fisher: Yes.

I --

Stephen G. Breyer: I foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kinds of things that are extraneous.

That is what's actually bothering me.

Jeffrey L. Fisher: Right.

So let -- let me address -- say a word more about why we need a standard, and then I'll say something about the lawsuits question that you raised. So, first, we need a standard because the Act -- it's best to encapsulate what the IEP provisions required.

If you don't like the word "equal," I'm seemingly giving you the word that Congress used when it amended the Act, and that very much -- this Court said very much the same thing in Rowley when it said, in the general situation, a child's plan should be tailored to allow her to advance from grade to grade. Now, if you don't want to use the word "equal," here's what we would suggest, Justice Breyer: You can say, as a general rule, the IEP provisions and, therefore, the FAPE requirement of the Act, demands a level of educational services designed to allow the child to progress from grade to grade in the general curriculum.

Stephen G. Breyer: Well, suppose we have a child who is a handicapped child, there's a range of people, and they can't do much for them, but they can do something for them.

And if they can do something for them, do it.

Jeffrey L. Fisher: Uh-huh.

Stephen G. Breyer: But if you, say, measure that in terms of their ability to progress from grade to grade, maybe some will; some won't.

And how does that -- it seems to me the word "appropriate" tried to recognize that.

And -- and do you want to recognize that? I mean, you can't ask for more than is reasonable for them to do.

So -- so what -- what words do we use?

Jeffrey L. Fisher: At bottom, we agree that there's flexibility in the Act to accommodate each child's individual potential and needs. But if I could just give a full answer to your question, we think that it would be fine if the Court just said the IEP should be tailored to achieve in a general educational curriculum at grade level for most kids.

And when that is not possible, Justice Breyer, and this goes back to Mr. Chief Justice's question, you would go to the alternate achievement standards according to the language I described to you at page 79(a), and that is all straight out of the text of the Act.

It's a more complicated --

Elena Kagan: How so --

Jeffrey L. Fisher: -- way of putting it.

Samuel A. Alito, Jr.: It makes a big difference whether you take the word "equal" out though.

What you've just said takes the word "equal" out of the standard.

Jeffrey L. Fisher: Well, it might --

Samuel A. Alito, Jr.: Isn't that --

Jeffrey L. Fisher: It might be, Justice Alito, I'm describing what it means to provide an equal educational opportunity.

If you don't think that I'm actually --

Samuel A. Alito, Jr.: Well, I understand what an equal outcome would be, but I don't understand what an equal opportunity means when an equal outcome is not practical.

Jeffrey L. Fisher: What it means is that you give the -- so when you're dealing with a child who cannot get to grade level -- I think that's what you're asking -- what it means -- and this is in a 2005 guidance document by the Department of Education -- what it means is you're giving children with disabilities equally challenging curriculum on the academic side and in terms of their functional and -- functional and developmental goals.

Elena Kagan: But for those --

Jeffrey L. Fisher: The standard -- I would just say the standard is highest possible standards achievable directly in the text of the statute.

Elena Kagan: But for those of us who have some feeling that the word "equality" is a poor fit for this statute and its focus on individuation --

Jeffrey L. Fisher: Uh-huh.

Elena Kagan: -- what would you say to those of us? How would you describe what you think is required without focusing on equality?

Jeffrey L. Fisher: I would say just what the Court said in Rowley for the -- for the typical child with a disability who can achieve at grade level, which is the standard that the school district has to try to meet, is progress in the general educational curriculum --

Ruth Bader Ginsburg: But we're dealing here --

Jeffrey L. Fisher: -- at grade level.

Ruth Bader Ginsburg: We're dealing here with a child who --

Jeffrey L. Fisher: And then -- and then dealing with a child who's not going to get there equally challenging or, Justice Kagan, I would say alternate achievement benchmarks, to use exactly the words in the standards, that are the highest possible achievable by the student.

Those are the exact words at page 79(a) of the -- of the -- of the statute. If I could reserve the remainder of my time, please.

John G. Roberts, Jr.: Thank you, counsel. Mr. Gornstein.

Irving L. Gornstein: Mr. Chief Justice, and may it please the Court: The requirement of a free appropriate public education is not satisfied by the program that aims at barely more than de minimis progress.

What it requires instead is a program that is aimed at significant educational progress in light of the child's circumstances.

What that --

Ruth Bader Ginsburg: How does that differ -- how does your formulation differ from the one we were just offered by Mr. Fisher?

Irving L. Gornstein: So I think we would take the same position with respect to Amy and similar students. It's grade-level competence for students who are in the regular classroom or in the general curriculum.

John G. Roberts, Jr.: We're talking about somebody for whom I think you'd agree that that standard doesn't apply.

Irving L. Gornstein: Right.

And so that is where we have a slight area of disagreement.

We would say significant progress towards grade-level standards, not as close as possible to grade-level standards.

Sonia Sotomayor: How about "meaningful" instead of "significant"?

Irving L. Gornstein: So we are not committed to any one particular terminology.

We think that "significant" is synonymous with "meaningful." It's synonymous with progress that's -- reasonably can be expected.

Anthony M. Kennedy: "Meaningful" --

Irving L. Gornstein: It's progress --

Anthony M. Kennedy: "Meaningful" was a word used in Rowley.

Irving L. Gornstein: Yes, it was used in Rowley. And the only reason I would -- of all the terms -- and I -- and I would give you one more, which is "appropriate." In light of the child's circumstances, progress that's appropriate. The only one I would urge you away from actually is "meaningful." And the reason is that it has baggage in various courts of appeals.

It means different things to different courts, and it has been applied in different ways by different courts.

So I would urge you to pick -- although we think that captures what we're saying --

Elena Kagan: So we should come up with our own that can then be applied in different ways in different courts. (Laughter.)

Irving L. Gornstein: Well, I think the most important thing for you to say is that this is not a barely more than de minimis standard, and it's not a maximization standard.

What it is, is -- and I would leave it to you to choose any of those adjectives that --

Stephen G. Breyer: The problem is you say leave it to us.

You represent the Department of Education here.

They at least have experience with it and we have far less.

And so, obviously, I'm relying and must rely upon people who have connection with expertise.

And I don't want to do something that uses words that has effects that I have no idea.

Irving L. Gornstein: So we --

Stephen G. Breyer: So I go back to look at two words.

The IEP is filled with the word "progress." There's several.

So the word "progress" seems like something that should be there.

Irving L. Gornstein: Yes.

Stephen G. Breyer: And then the other word --

Irving L. Gornstein: I would agree with that.

Stephen G. Breyer: -- that goes -- goes -- you see a lot is "appropriate." Now, you've taken that word "appropriate" and spelled it out in light of the student's particular needs and abilities.

I think that's what you're doing with "appropriate."

Irving L. Gornstein: Yes.

Stephen G. Breyer: And if we stick "appropriate" in that sentence somewhere so it's significant and appropriate, does that matter?

Irving L. Gornstein: That happen -- we are happy with that.

One of the formulations we --

Stephen G. Breyer: You looked into this and you don't --

Irving L. Gornstein: Yes.

Stephen G. Breyer: -- see anything wrong with sticking in the word "appropriate"?

Irving L. Gornstein: We do not.

Stephen G. Breyer: Okay.

Now -- now, the other thing I looked at in yours is you say the school -- "requires school districts to provide." And when I see "requires school districts to provide," I begin to think everybody is going to start suing about whether they did provide.

Irving L. Gornstein: No, no.

Stephen G. Breyer: So I'm thinking, well, maybe it should be something like they are reasonably calculated to provide.

Irving L. Gornstein: That's actually -- we agree with that.

That is what Rowley said, and that is what the standard -- that's what it means to require.

It's a program that is reasonably calculated to -- to make significant --

Sonia Sotomayor: What does that --

Irving L. Gornstein: -- educational --

Sonia Sotomayor: For all of us --

Irving L. Gornstein: -- progress in light of the child's circumstances.

Sonia Sotomayor: For all of us who might be a little slow --

Irving L. Gornstein: Yes.

Sonia Sotomayor: -- now tell me what the new standard you're proposing is.

Irving L. Gornstein: So --

Sonia Sotomayor: And I don't mean to be buying into your --

Irving L. Gornstein: So --

Sonia Sotomayor: -- adversary's position. I do think the Act provides enough to set a clear standard.

But the words are what we're trying to -- to come to that would be less confusing to everyone.

Irving L. Gornstein: So one formulation that I think that would be consistent with what we are saying is reasonably calculated to make progress that is appropriate in light of the child's circumstances.

John G. Roberts, Jr.: So how does that actually work in -- in practice? I mean, I understand in the Rowley standard, you're dealing with someone who has a disability that is readily addressed so that they can keep track with grade progress.

But if you're out of that realm where that is not a realistic goal in light of the child's potential, how do you decide what it is? You're sitting -- you're sitting down at the meeting, and how do you decide --

Irving L. Gornstein: All right.

So you -- what the -- the IEP provisions tell you where to start.

You look at the -- where the child currently is in terms of academic performance, what are their present levels of achievement.

Then you examine the disability and you ask to what extent has this impeding progress in the general curriculum.

And then what you do is you basically make an estimate --

John G. Roberts, Jr.: Is there somebody at that meeting? I mean, you have the parents --

Irving L. Gornstein: You have expert -- you have educational experts who will say, make an estimate of how much progress towards grade level standards that child can make in light of where they are now and the -- the nature of the disability.

John G. Roberts, Jr.: Maybe there's still time to grade level standards.

I would think in many situations those would largely be irrelevant.

Irving L. Gornstein: So here's what we mean by that, Mr. Chief Justice.

You start with the grade level standards, but then you see the building blocks that are missing underneath those grade level standards, and you set those out.

So if you can't multiply and you can't add, and multiplication is the standard, maybe you need to learn how to add first.

So you set forth what are the building blocks that the child is missing.

John G. Roberts, Jr.: Everybody -- I say everybody.

I assume everybody needs to learn how to add before they learn how to multiply. And -- and the basis of my concern is that it seems to me that even though you have a lot of -- maybe because you have a lot of different adjectives to describe the standard, that there's really nothing concrete there.

And when you're asking the courts to undertake judicial review, it's not clear to me exactly what they're supposed to do.

Irving L. Gornstein: So -- so again, it's appropriate in light of the circumstances.

And we think that this is just what most school boards are already doing.

And I agree that the concern is with court enforcement of the standard, and the risk of court over-involvement in educational decisions.

But the response to is that is not to adopt a barely more than de minimis standard that nobody purports to apply, but it's to say that the court's role is limited to ensuring that the State's program for progress or appropriate progress is based on reasonable educational judgments.

Samuel A. Alito, Jr.: Do you agree with Mr. Fisher that cost has no place in this calculation? No matter how expensive it would be and no matter what the impact in, let's say, a poor school district would be on the general student population, cost can't be considered? And do you think in the real world, school boards are disregarding costs entirely?

Irving L. Gornstein: So they're definitely not disregarding costs entirely, because there could be two different programs, both of which are reasonable, and they would take into account costs, surely, in deciding which of those reasonable programs to adopt. But more generally, I would say the answer is no in the usual case.

And -- and from Cedar Rapids, that's -- what the Court said is you consider cost in deciding what the standard should be in the first place, but cost can't define what the standards are. And that makes sense to me in -- in light of the way you look at this statute.

Congress obviously knew, when it passed this law, that there were going to be some significant expenses associated with some kids, and that's why it gave money and made it an opt-in program.

So at the very least, it seems to me, Cedar Rapids and the structure of the statute tell you that in the usual case it can't be cost, but --

Samuel A. Alito, Jr.: Do you -- do you know what percentage of the funds that are spent by school districts for this program are paid by the Federal government?

Irving L. Gornstein: I think it's a relatively -- I think it's like 15 percent or something like that.

Samuel A. Alito, Jr.: Federal government pays 15 percent?

Irving L. Gornstein: I think it's something like that.

I could be -- I could be corrected, and maybe my -- my -- but the point of it is they realized that they were going to give money and they made it an open-ended choice for the school district.

So if the school --

Anthony M. Kennedy: But -- but do you think that costs should be measured against the possible results to be achieved?

Irving L. Gornstein: So not in the usual case.

I think Congress took costs off the table in the usual case.

I think in the extreme case, you would do exactly what you're talking about.

You would say for very little gain for extreme cost, no.

Stephen G. Breyer: Not appropriate.

Is that --

Irving L. Gornstein: Not appropriate.

Yes. So --

Sonia Sotomayor: That's not the case in this case.

Irving L. Gornstein: No.

No.

The -- the school district in this case hasn't raised a cost defense.

And so --

Sonia Sotomayor: And -- and more importantly, the cost gave significant progress.

Irving L. Gornstein: The cost did give -- I'm sorry?

Sonia Sotomayor: The cost of the private education resulted in significant --

Irving L. Gornstein: It -- it did result in significant progress. Now, I'm not sure you would -- you -- the -- the benchmark is what is to be achieved in a private school.

I think as long as the school district's plan makes significant progress or appropriate progress towards grade level in light of the child's circumstances, that's all you have to do.

Sonia Sotomayor: Well, here, even by the Tenth Circuit's admission, this was barely de minimis progress.

Irving L. Gornstein: So I think what they -- the court of appeals said is -- the only thing it said is there was a free, appropriate public education because Drew had made minimum progress on some of his goals in the prior years, and that's clearly not enough to meet the standard that we're talking about. If the Court has no further questions.

John G. Roberts, Jr.: Thank you, counsel. Mr. Katyal.

Neal Kumar Katyal: Thank you, Mr. Chief Justice, and may it please the Court: To prevail, my friends have to overcome three different things.

First, they must overcome the Spending Clause, which requires that any standard be imposed unambiguously. Second, they most overcome Rowley, which found far from a clear statement that the statute was noticeably absent on a substantive standard for the level of education, including any standard based on equality. And third, they must overcome the fact that with each amendment to the IDEA, Congress has reaffirmed its faith in the procedural protections and systemic requirements without touching the statute's substantive standard. They have to --

Ruth Bader Ginsburg: What did you -- what we were told by Mr. Fisher, I think he was referring to 79A of the government's appendix.

Neal Kumar Katyal: So he has two different arguments, Justice Ginsburg, about -- about the changes to the amendments.

We think neither of them is going to come close. First of all, nothing is unambiguous as the Spending Clause requires.

These are changes to the procedural protections in 1414(d), and an -- and an additional goal found in 1400.

None of that comes close to this. And I think the best barometer of this is that it's taken until Mr. Fisher's creativity for any court, really, to even entertain the notion that the '97 or 2004 amendments changed the standard.

He has not a single case to cite that supports this idea. In all of the --

Anthony M. Kennedy: But the procedural standards certainly are the measure by which a court can determine whether or not the procedures were adequate.

Neal Kumar Katyal: Absolutely, Justice Kennedy. We agree.

Anthony M. Kennedy: Then why doesn't that automatically make these part of the standards?

Neal Kumar Katyal: We -- we do think it makes them part of the standards.

It just makes them part of the procedural standards.

That is to say, we agree with them that in 1997 and 2004, Congress really changed the IDEA in a significant way.

The question is --

Anthony M. Kennedy: Well, do you agree that the procedures have to meet these standards?

Neal Kumar Katyal: Absolutely.

Absolutely.

And so to the extent the procedures are met, to the extent that the --

Anthony M. Kennedy: Then I don't understand your disagreement with Mr. Fisher.

Neal Kumar Katyal: Well, it's -- it's very large. That is, we think that these are -- a procedural checklist, and it's a detailed and exhaustive one, to be sure, Justice Kennedy, after --

Anthony M. Kennedy: But -- but are -- are not the procedures subject to judicial review to see that the procedures were followed?

Neal Kumar Katyal: Absolutely, Justice Kennedy. We agree with that.

That's actually the way -- that's what Congress had in mind, the idea that you've got to go through the checklist, you can look at the checklist here.

It's very detailed and extensive, the supplemental appendix, pages 131 to 142.

And so long as the Court has considered those things -- excuse me -- so long as the IEP process has considered those things --

Elena Kagan: But the procedures, as I'm sure you'll agree, is geared towards something.

It's geared towards the provision of a free appropriate public education. Then the Act, what it does, is it sets up -- this is why I -- I guess I -- I -- I can't readily agree with your understanding of it's all procedures and we just have to make sure the procedures are followed, because what the Act does is it sets up an administrative process.

And it says when you have disagreements about the provision of a -- of a FAPE, you go to this administrative process. And what does the hearing officer do? I'm going to just read you, subject to another exception, "A decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education."

Neal Kumar Katyal: Correct.

Elena Kagan: So that's what the dispute is ultimately going to be about.

It might be about some procedures along the way, and maybe it will be solved just by saying follow the right procedures, but often not.

Often, what the hearing officer is told to do, shall do, is to decide on substantive grounds whether a child has received a free appropriate public education.

Neal Kumar Katyal: Justice Kagan, we don't disagree with a lot of what you said.

That is to say that we do think -- and Rowley is very clear on this -- that there is a substantive standard in the IDEA.

It's just a "some benefit" standard, not -- and there's nine different standards now that we've heard just in the last half hour, which I'll walk you through in a minute, but that the Petitioner and the government are saying, so it's some benefit. We do think there's substantive review. That's what that provision is about.

And by the way, that provision also says there can be procedural review on a harmless error.

Elena Kagan: But your substantive standard is so low, is so easy to meet, and then you justify that.

You say, don't worry about it because it's all in the process. But this provision, the idea of what a hearing officer is supposed to do, and then what a court is supposed to do, says it's not all in the process. There is a question of whether a student is receiving a -- a FAPE.

Neal Kumar Katyal: So we disagree in two different respects.

Number one, the experience for 34 years since Rowley, almost every circuit, both the government and Petitioner agree, whether it's Eighth or Tenth Circuit, have been applying the -- the some benefit standard, and that it had bite.

Indeed, their own reply brief at page 19 admits and says, look, actually schools are doing fine. So to the extent that you're concerned about some really low standard in the courts, that's actually not what's materializing, and you will get case after case on this ASA brief at page 24.

So it's three cases using the some benefit standard just from this year. Judge Colloton's opinion in CB.

There's case after case saying this is not some, you know, totally minor standard, it is the standard that Rowley said.

John G. Roberts, Jr.: It says "some benefit," but you're -- you're reading it as saying "some benefit," and the other side is reading it as saying "some benefit," and you know that -- (Laughter.)

John G. Roberts, Jr.: And it makes a difference.

And I -- one reason I think that it -- it's problematic for you is because Rowley just doesn't say "some benefit." It tells you what it is.

And it's enough benefit to keep track with grade progress.

And if that's what the standard is, that's certainly more than -- you know, slightly more than de minimis. And, now, obviously, we -- we -- you can't take that actual substantive standard and apply it in a case such as this, but it does seem to indicate that there is a substantive standard and it's not just some benefit.

Neal Kumar Katyal: Well, our position is Rowley doesn't say that it's got to be grade-level progress. Rather, it says that you've got the -- the word "appropriate" -- this is footnote 21 -- reflects --

John G. Roberts, Jr.: The -- the --

Neal Kumar Katyal: -- reflects, quote, "Its recognition that some settings simply are not suitable environments for the participation of some handicapped children," not as a term of art which concisely expresses the standard found by the lower court's equality standard.

That is to say, I think, you can -- there -- there are lots of different ways of trying to understand what the statute means, but Rowley said the way for the Court to understand it is Spending Clause legislation.

That is, the State entered into a contract and they need to know the terms of the deal, and to the extent there's any ambiguity, I think Rowley was very clear in saying it is just some benefit, and that is a natural thing it follows from the kind of presumption against de minimis --

Ruth Bader Ginsburg: You don't think "some benefit" is ambiguous?

Neal Kumar Katyal: Well, I think that there's a little bit of ambiguity in that, but I think it's a lot easier to administer that question because the question -- you know, Justice Ginsburg, let's just say, this is the way ordinary English works. If I have a duty to benefit you, Justice Ginsburg, if I give you no benefit, I think courts can easily review that.

I've given you no benefit, I've fallen down on my duty.

Now, if I've given you some benefit, I've met my duty to benefit you, but I think that --

Ruth Bader Ginsburg: But I think it doesn't say it's more than de minimis.

Neal Kumar Katyal: Exactly, but that can't be --

Ruth Bader Ginsburg: So what is it?

Neal Kumar Katyal: That can't be -- just to finish that -- that -- that thought.

It can't be that the standard is, if I benefit you significantly, that's the standard; or if I benefit you equally with your colleagues or something like that.

That's all adding words to the statute that aren't there.

Stephen G. Breyer: Where is it? As I see one way of looking at what we're doing, two things have occurred.

One, Rowley itself is somewhat ambiguous.

It doesn't -- it deliberately doesn't say how much, and that's why you get the ambiguity. The second thing that happens is the statute is amended.

So what we're doing is going back and looking at those somewhat ambiguous words in Rowley in light of a statute that was amended. Now, when you look at the statute that was amended in the IEP, you do see in at least two and maybe more places that that IEP is designed to be a statement that will produce -- meet the child's needs to enable the child to be involved in and make progress in the general education, and then further, advance appropriately towards an -- annual goals to make progress in the general education. So now what the SG has done is go back, take those words, "make progress," and put them in a phrase which, in fact, I think with not much modification says, look, let's read what Rowley said in light of these additional words, "make progress," which are statutory words, while taking account of great differences by using words like "appropriately in light of the student's particular needs and abilities," and those all come from the statute.

Neal Kumar Katyal: So, Justice Breyer, three things.

Number one is we don't agree that Rowley itself is ambiguous as it's been interpreted for 34 years. Indeed, they can't cite any cases showing that there's any problem.

Indeed, their reply brief admits at page 19, things are working just fine.

So the idea that there's, like, some need for this Court to get involved and clarify Rowley, I think, you know, there's no case law or anything to support that. Second, the idea that the amendments somehow changed the game, I think, is not nearly enough to be the clear statement that Pennhurst requires.

I mean, this isn't just elephants being hided -- hided in mouse holes.

This is elephants being hidden in romanette mouse holes.

I mean, this is -- you know, just listen to the things that he had to point to.

It's subsection D4, romanette ii, and things like that, none of which --

Ruth Bader Ginsburg: But would you agree with at least the courts should say that the formulation more than de minimis sets the level too low, and that's -- that's the formula that was used at levels here.

Neal Kumar Katyal: And, Justice Ginsburg, we disagree with that.

We think more than de minimis, which is what almost every circuit is using right now, has worked and it follows naturally from the some benefit language in Rowley. Now, you might disagree --

Ruth Bader Ginsburg: So you're -- you're equating some benefit to more than --

Neal Kumar Katyal: More than de minimis.

We think it means the same thing, and we think there's a long history of experience with this showing that it's working. And to return, Justice Breyer, to a point that you had made before.

It's that there's some concern about the standard.

That's really got to be up to Congress.

If this Court were to change the standard, you know, it would invite all sorts of litigation. And just look at what Mr. Fisher said.

As the Chief Justice started, he -- first his petition started with a substantial equal opportunity standard, then it became in its merits brief an equal opportunity standard, then in the beginning of his oral argument it was, quote, "tailored to achieve at grade level what" --

John G. Roberts, Jr.: But, Mr. Katyal, let's say -- let's say that during the school year, the school districts -- district sends someone to work with the particular student in this case, and they send her there for two weeks, you know, she goes around.

And that's it.

And that's all they do.

That's some benefit.

Better to have the person there for two weeks than not at all, but you wouldn't say that satisfies the statute.

Neal Kumar Katyal: It does not.

As our brief explains there is two different provisions in the statute, 1414(b)(r) and (c)(5)(A), which explain that the benefit from special education must be, quote, "continuous." And Cedar Rapids actually said that. So --

John G. Roberts, Jr.: Okay.

So -- and just change the hypothetical.

She's there five minutes a day.

Neal Kumar Katyal: And -- and -- and, you know, five minutes a day, I think, wouldn't meet the de minimis standard.

That is -- that is, that itself is not a significant -- that -- that is not a word --

John G. Roberts, Jr.: Well, I guess it depends on whether somebody can tell us at some point whether it's beneficial.

And yet, I think most people would agree that it -- well, I mean, are you saying that the -- the judicial review is supposed to be whether that's de minimis or more than de minimis, and they're supposed to say, well, a half hour is -- is -- is good, it's not de minimis, but that's all you have to do?

Neal Kumar Katyal: Mr. Chief Justice, I'm saying two different things.

One is yes, ultimately, if we got there, that it would flunk substantive de minimis review, but you wouldn't get there.

Congress's whole judgment here was to put the emphasis on procedural protections in the Act, and they bolstered them in '97 and 2004.

And as long as they could shine a light by creating an IEP team process where they trusted teachers and they trusted parents who are highly incentivized to come together --

John G. Roberts, Jr.: Yeah, but you're putting a lot -- you're assuming that the procedural process will yield significant results.

What if they do the whole thing? Yeah, we have a hearing.

Everybody comes in.

We bring the expert in and the expert says, well, you need to have somebody there six hours of the day to help the child learn, and they say, okay, that's -- that's the procedure, we listen to you.

In fact, we're only going to have somebody there a half hour a day.

Neal Kumar Katyal: I -- I am assuming that it is in general going to work, which is what Rowley itself said at page 206 of its opinion.

That -- that was Congress's judgment. Now, I agree, you can give me a hypothetical which says that in some case the procedures aren't going to work and there's going to be a bad result.

No system is perfect, not even a judicial system, as the error correction rules of this Court recognize. I think the -- the question for the Court is should you kind of re-jigger the statute and impose a new standard, particularly in the context --

John G. Roberts, Jr.: It's not exact --

Anthony M. Kennedy: You'll have to excuse me, I'm not sure I understood your answer to the Chief Justice. He -- he had a hypothetical where you have the hearing, the hearing makes a recommendation, recommendation not followed.

What result?

Neal Kumar Katyal: If the recommend --

Anthony M. Kennedy: And -- and then I thought I heard you say, well, the procedure we followed, that's good enough.

Neal Kumar Katyal: If -- if -- I might have misunderstood.

I thought there was a five minutes of services thing. If it's not followed, everyone agrees there's judicial review of that.

The IEP is essentially a contract.

Our brief cites the provision which says that you can come in and enforce the IEP.

I don't think there's any disagreement about that. I understood the hypothetical to be about some really low level of benefit.

And our point is, Rowley says there is a some benefit standard.

That has been interpreted in court after court to actually have bite.

The ASA brief cites the -- three cases just in the last year alone about that. The question is, in Spending Clause context, do you want to actually impose something new? I mean, Mr. Gornstein gave you three different new standards, starting with his cert petition and then -- and then his merits brief taking a different view.

Sonia Sotomayor: So where do you get "some benefit" from?

Neal Kumar Katyal: I get it from Rowley itself at page 200 which says that --

Sonia Sotomayor: What do you do with "meaningful" --

Neal Kumar Katyal: So "meaningful" --

Sonia Sotomayor: -- that was in Rowley itself?

Neal Kumar Katyal: So "meaningful" was not actually in Rowley.

The Court there just mentioned "meaningful" once only to say that it can't be more than meaningful.

It didn't adopt that as a standard.

There is some baggage, as Mr. Gornstein says, but the really important baggage is actually what this Court said in Cedar Rapids, which is that meaningful access doesn't require a particular level of education.

Stephen G. Breyer: All right.

Neal Kumar Katyal: So that's what we have --

Stephen G. Breyer: That's what we have -- we have now.

We have the words you've mentioned.

They are in old cases.

As was just pointed out, those words "some" -- what is it? "Some" -- "some" -- "some benefit."

Neal Kumar Katyal: "Some benefit."

Stephen G. Breyer: You could say some benefit or you could say some benefit.

Neal Kumar Katyal: Yeah.

Stephen G. Breyer: All right.

Now, that's an ambiguity.

Neal Kumar Katyal: Yes.

Stephen G. Breyer: And as you pointed out, most courts have interpreted what I think is the correct thing, they said benefit.

Okay? And you say there is really no problem.

Okay? There is really no problem. But there still is a problem with the language in a handful of courts.

And now we have an IEP statute which again and again and again looks to progress. So why is it making something up out of whole cloth --

Neal Kumar Katyal: Well, first --

Stephen G. Breyer: -- simply to take that word from the IEP, which is enforceable anyway, and say, look at these two words of ambiguity, and we think we should interpret them in light of the IEP requirements, which are pretty close to what the SG suggests?

Neal Kumar Katyal: But, Justice Breyer, I don't think that there was some problem in the lower courts. They're not citing cases that show that there's some parade of horribles akin to the hypotheticals --

Stephen G. Breyer: Uh-huh.

Neal Kumar Katyal: -- that we've heard.

And Congress's judgment was that the procedural protections will do a lot at the front end to avoid that problem. There might be some situation at the back end, but that's where the system -- systemic requirements of the IDEA No Child Left Behind are so important.

Because what they say is that the Department of Education can cut off funds, can redirect funds, can require annual reports, all sorts of things happening. And, indeed, annual reports have been required since 2004 to Congress.

Congress has never changed the statute in the way they want, a substantive standard change.

You know, and -- and, again, their own reply brief at page 19 and the SG's brief admits the standard is generally working.

Teachers are teaching to the top.

Samuel A. Alito, Jr.: What is frustrating about this case and about this statute is that we have a blizzard of words.

And if you --

Neal Kumar Katyal: Right.

Samuel A. Alito, Jr.: -- read them literally, it's not clear to me that they mean anything different. Now, "progress" benefit.

Yeah, I don't see how you can have a benefit unless you're making some progress. "Significant," "meaningful," they're synonyms.

If something is significant or meaningful, it's more than de minimis.

And if it's more than de minimis, you could say it's significant.

It's something that you note.

So it's really -- I mean, what everybody seems to be looking for is the word that has just the right nuance to express this thought.

Neal Kumar Katyal: Well, we think that you should look to what Rowley did here, which is to say the word is "some benefit." And that actually follows from the text of the statute itself.

There is a long presumption, Justice Alito, against de minimis, starting with Wrigley, which this Court said applies to all statutes.

So we think our standard comes from the text, but there is no canon about significance or quality or anything like that.

Samuel A. Alito, Jr.: What is the difference between "some benefit" and "significant"?

Neal Kumar Katyal: I think it's quite large; that is, you know -- you know, I think it's straightforward. So, you know, basically, I think, you know, if -- if the Court is to ask whether there is some benefit, as I was saying to Justice Ginsburg in my hypothetical, you know, that's a pretty easy question, is, have I benefited? Has the school district benefited? But once we start getting beyond that to "significant," the Court has to ask both: Was there some benefit and then was that benefit significant? And I can imagine --

John G. Roberts, Jr.: It didn't just say --

Neal Kumar Katyal: -- a variety of views about what is significant.

John G. Roberts, Jr.: It didn't just say "some benefit." It said that that benefit would normally allow the -- a student with the disability to keep up with his peers in a different grade. Now, as soon as they say that, you appreciate that you're dealing with more than just some benefit.

I mean, that's a significant benefit.

Well -- (Laughter.)

John G. Roberts, Jr.: Significant -- "significant," "meaningful," whatever.

It's more than simply de minimis.

It suggests that you can't just look at something and say, aha, here, that was helpful, that was helpful, because it's -- the whole package has got to be helpful enough to allow the student to keep up with his peers.

Neal Kumar Katyal: Mr. Chief Justice, I don't think that's what Rowley said when it used grade to grade.

I think that all the -- the grade to grade was just to say, procedurally, they've got to consider that and make sure that, for example, a high school kid isn't put in first grade.

But I don't think that's part of the test.

And several times Rowley rejected this idea that there's any sort of level-of-education test.

Elena Kagan: Well, how does your position, Mr. Katyal -- you have a passage in your brief on page 47 which says, "An IEP must have the goal of advancing a child in the general education curriculum and, to the extent possible, enable her to be educated in the school's regular classes." And, to me, that sounds exactly like what the chief justice just said, that an IEP has to be reasonably calculated to do those things.

And if it's not, then relief follows.

Neal Kumar Katyal: So I think, again, it's just a procedural guarantee that they have to think about and consider grade-level progress.

It does not mean sort of substantive standard --

Elena Kagan: That's wrong.

This is not just a procedural guarantee.

Yes, the IDEA has lots of procedures in it, but they're all geared towards a particular substantive result.

And it's that substantive result that's the focus of the -- both the administrative process and then judicial review of what comes out of the administrative process.

Neal Kumar Katyal: But I don't think so, Justice Kagan.

I think all that those standards say is what an IEP must address, not how an IEP must deal with them. And so if you look -- and I think the Second Circuit recently, in a case called LO v. New York City just a couple of months ago, decided -- basically went through this and said the 1414 standards like that are checklist.

You've got to consider grade-level progress and things like that.

Elena Kagan: But if we --

Neal Kumar Katyal: But you wouldn't --

Elena Kagan: -- consider all of them and we do none of them, that's just fine?

Neal Kumar Katyal: That's -- well, the Congress's judgment was the process -- and this is something that happens in NEPA --

Anthony M. Kennedy: So your answer to Justice Kagan is yes.

If you consider everything but do nothing, that's okay.

Neal Kumar Katyal: No.

Because there's still -- if you do nothing, then you haven't provided any benefit.

And so there is still some substantive bite in the standard of Rowley itself.

What we're saying is, in the context of Spending Clause legislation, you can't do more than that and require something significant. And the reason, Justice Kennedy, is once you start going into significance, as the amici briefs point out, education is the most -- one of the more contested areas in our society.

Parents have been known to disagree.

There is more acronyms about lawsuits about this newfangled theory or that newfangled theory or 30 hours versus 35 hours being significant.

And you get into a huge morass. What Rowley said citing San Antonio v. Rodriguez is that that kind of thing in the educational context is not where Federal generalist courts should be. Now, I suppose you could say maybe that's not the right policy.

Maybe, you know, this is something that should happen.

Courts should get involved in this.

That's really got to be a judgment for Congress to make, and it's got to be something they say clearly in the context of Spending Clause legislation.

Rowley expressly said the Pennhurst principle applies to this provision of the statute. This is core legislation, core -- a core requirement of the statute, and they are imposing any number of different standards. And so I understand that there is some policy concerns among -- among the Court, even if they're not shared by the -- my friends on the other side, because they disclaim them.

But to the extent there are those policy concerns, that's really got to be something that Congress deals with.

Samuel A. Alito, Jr.: And what I'm --

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 --

Stephen G. Breyer: -- and advance appropriately --

Neal Kumar Katyal: Yes.

There must be a statement --

Stephen G. Breyer: -- towards a --

Neal Kumar Katyal: -- yes. I think everyone agrees you don't look at outcomes or anything like that.

So it's -- it's just a procedural requirement --

Stephen G. Breyer: It's procedurally calculated.

Neal Kumar Katyal: It's just the same as Rowley. Rowley -- you know, we're not saying anything different than what Rowley said.

Stephen G. Breyer: I don't know.

I would say if you take Rowley as meaning -- hmm, or whatever those two words were, what, beneficial? What's the one before "beneficial"?

Anthony M. Kennedy: Some -- some benefit.

Neal Kumar Katyal: Some educational benefit.

Stephen G. Breyer: Some educational benefit. If you say "some," this is inconsistent with Rowley.

Neal Kumar Katyal: Well, I don't think so.

I think it's got to be some educational benefit designed to get the general education curriculum or --

Elena Kagan: Mr. Katyal --

Anthony M. Kennedy: Mr. Katyal, are there -- in the wake of the many years this Act has been enforced and these many individual meetings, have there been documented areas of consensus as to certain standards, certain methodologies, certain systems that work and certain that don't? And do the courts, in reviewing these proceedings, ever refer to those?

Neal Kumar Katyal: So I think that's where the amici briefs are so important, because they show -- say that education isn't really one of those areas.

I mean, you know, people disagree about the most simple things about educational philosophy.

Anthony M. Kennedy: So we've gone -- so we've gone nowhere.

Neal Kumar Katyal: Well, I don't think we've gone nowhere, but I think that worry is to thrust courts into the business of deciding which philosophy is appropriate. And take Firefly, for --

Anthony M. Kennedy: So you say that there is generally no consensus as to appropriate methodologies for, say, a hearing-impaired student, an autistic student.

No agreement on that?

Neal Kumar Katyal: I don't mean to say that there's no agreement.

I am -- I do mean to say that the amici briefs and the case law recognizes that there is a lot of disagreement.

And Rowley itself says this, picking up on San Antonio v. Rodriguez, that the Congress's judgment was not to thrust courts into these really highly, very difficult considerations. And if I could just give you one example, talking about Justice Sotomayor, your indication of Firefly.

So eventually right, that, you know, once Drew went to Firefly, there was progress that was made.

But there was also a lot that was given up. I mean, one of the core purposes of the IDEA is mainstreaming.

And of course, Firefly is not a mainstream school.

So yes, there were some behavioral problems that were addressed by the private placement --

Elena Kagan: Mr. Katyal, can you go back to Justice Ginsburg's question that I'm a bit confused of -- about for the same reason. You said something like, well, this -- this standard is -- is being applied with bite.

So I'm just wondering, do you favor a standard with bite?

Neal Kumar Katyal: We favor the standard that Rowley said, which lower courts have done for 34 years, which does have --

Elena Kagan: Do you favor a standard with bite?

Neal Kumar Katyal: It does have some bite.

It does.

We're not trying to --

Elena Kagan: Would that be "some bite" or "somebite"? (Laughter.)

Neal Kumar Katyal: It is some educational benefit. That's the language of Rowley.

And if you disagree with it, Congress can change it.

Elena Kagan: Well, again, if somebody said to you, write a stature with -- write a standard with bite, I doubt you would come up with the words "more than merely de minimis."

Neal Kumar Katyal: Well, but again, I think, Justice Kagan, Congress's bite, the substantive bite is only at the back end.

It's a small feature in a much bigger statute. Congress's judgment was --

Elena Kagan: But the back end is what this case is all about.

Neal Kumar Katyal: I understand that.

Elena Kagan: We are at the back end.

Neal Kumar Katyal: But -- but, Justice Kagan, don't take the policy concerns about the hypotheticals and other things to try and re-jigger the back end. Congress's handiwork was to say it's the procedural protections shining a light, the IEP process with highly incentivized teachers and -- teachers and parents that's generally going to yield the right result.

That's what Rowley itself said at page 206.

Samuel A. Alito, Jr.: We're going to have to use musical notation to -- and not just words -- to express the -- the idea that seems to be emerging.

All right. Would you say -- I'll ask the same thing of Mr. Fisher if he has a chance to address it. If -- if we were to look at what the lower courts have been doing -- we don't see very many of these cases, the lower courts see a lot of them.

If we looked at what they have been doing in general, would you say that they are doing -- that they are applying the statute appropriately and consistent with correct interpretation?

Neal Kumar Katyal: I would.

Ten circuits are applying the more than de minimis standard.

It's working.

Sometimes it has some bite.

But to change it, as Justice Breyer was indicating to my friend, is -- with eight million potential IEPs, is to invite massive amounts of litigation.

Samuel A. Alito, Jr.: That sounds very harsh. What's the origin of this phrase, "more than de minimis"? Who thought this up?

Neal Kumar Katyal: Well, it goes back to Latin. And so again, we, you know --

Samuel A. Alito, Jr.: I know where "de minimis" comes from. (Laughter.)

Neal Kumar Katyal: No, no, no.

No.

The -- the -- no.

The -- the presumption against trifles, you know. It's -- Justice Scalia invokes it why and folks in the Wrigley case.

It's an old formulation.

Samuel A. Alito, Jr.: But who -- who decided to apply it here in this context?

Neal Kumar Katyal: Well, I think the Court in -- in Rowley, then Justice Rehnquist's opinion, invoked that by talking about some benefit.

And Wrigley says that is a presumption that applies to all statutes. And look --

Ruth Bader Ginsburg: Who -- who put the term, "more than merely de minimis"? That's the formula that we're -- that you are espousing.

Neal Kumar Katyal: Yes.

We --

Elena Kagan: And de minimis is not enough, you know.

It's "merely de minimis." (Laughter.)

Ruth Bader Ginsburg: And it's not in Rowley. So where does it -- who invented it?

Neal Kumar Katyal: Well, I think that it came directly from the circuits right after Rowley.

But all we are saying is "some benefit" means the more than de minimis test.

That's the way court after court has interpreted it.

It's worked well.

This Court shouldn't renege on that.

John G. Roberts, Jr.: Thank you, counsel. Two minutes, Mr. Fisher.

Jeffrey L. Fisher: Three points, Your Honors.

Two about the statute, and one about the practicalities. First, as to the statute, the word "procedural" has been used by my friend to describe the IEP provisions.

But whenever pressed, even he admits that the IEP provisions are enforceable in the way Justice Breyer described, which is the plan has to meet the requirements of 1414(d).

And if the services on the ground don't meet the requirements in the plan, they're enforceable.

That's at page 47A of his brief and throughout the others --

Sonia Sotomayor: Answer Justice Alito's question.

What's the practice today?

Jeffrey L. Fisher: Pardon me?

Sonia Sotomayor: What's the practice today? Do most courts use the "more than de minimis" standard?

Jeffrey L. Fisher: Yes.

That is the formula in most of the circuits.

That brings me to an important question on the ground, and if I'll circle back to my other statutory point.

Samuel A. Alito, Jr.: Before -- putting aside -- I don't want -- I'll take 10 seconds.

Putting aside the words, are the outcomes appropriate, or do you think the lower courts need a kick?

Jeffrey L. Fisher: I think they need a kick.

I think the outcomes are quite scattered.

I think the only reason why you get some favorable outcomes is because even the courts themselves don't believe barely more than de minimis. But I think you have a disjoint.

And my friend keeps pointing to the amicus briefs.

I think educators are, by and large, following the plan -- I'm sorry -- the -- the standard we propose and the solicitor general imposes. The No Child Left Behind Act in 2004 was a very important, revolutionary, bipartisan policy change. And so educators on the ground are aiming high, as they put it.

The city's brief says we are aiming to maximize the benefit for our students.

And so you have a disjoint between what educators are doing and the courts.

And the reason they need a kick is because the very, very, very, very, very rare case that makes it into the court system is not being properly reviewed. And that leaves the last point I want to respond to, which is the fact that Congress left us alone after Rowley.

What the Court has said in Rowley and in Honig and in other cases is the IEP rules are, quote, "the centerpiece of the Act." They're the centerpiece for how the education delivery services are put forward. If you look at page 182 of Rowley, the IEP provisions were quite hollow.

They didn't have any benchmarks at all.

That has dramatically changed.

They now have the general educational curriculum benchmarks Justice Breyer has been referring to, and we repeatedly refer to in our brief, and I think, Mr. Chief Justice, you agree cannot be met under their standard. And then that leaves the last little piece of the puzzle here, which is this child who cannot get up to grade level standards.

We give you an answer-direct question that is directly in the text of the Act, just as my friend demands.

Alternative achievement benchmarks at the bottom of 52A is what is required.

And that takes you to 79A, which gives you the exact statutory formula. So if you want to use that formula, combined with general educational curriculum at grade level, we think that would be a proper answer to the question presented in this case.

John G. Roberts, Jr.: Thank you, counsel. The case is submitted.