The Supreme Court held unanimously last week — in its most momentous ruling on special education in over three decades — that the standard for services owed to students with disabilities under federal law is higher than "merely more than de minimis."
Lower courts had been divided, with some saying services must be "meaningful" or "significant," and others saying "merely more than de minimis" — as in a step above trivial.
The Supreme Court decision to raise the bar was generally hailed as a victory for students with disabilities. But don't believe it. Under the de minimis standard, there was almost nowhere to go but up, and the court went up only a very little. An 8-0 vote by a court that is usually sharply divided is a sign that the decision may lack clarity or bite.
Chief Justice John G. Roberts Jr., writing for the court, stated that the standard is whether the services are "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." That means more than de minimis, but how much more? The vague language was deliberate to allow, Chief Justice Roberts reasoned, "deference" to the expertise and judgment of school authorities.
But this reasoning is deeply flawed. The court does not understand the extent to which school systems nationwide fail to recognize that the great majority of students with disabilities are capable of achieving much higher levels of academic achievement than they do.
Low expectations are at the root of the failures of special education. Former U.S. Secretary of Education Arne Duncan concluded: "No belief is more damaging in education than the misperception that children with disabilities cannot really and shouldn't be challenged to reach the same high standards as all children."
Federal regulations specify that students who are not significantly cognitively disabled should receive services that enable them to meet state standards. This regulatory standard is based on research. The National Center on Educational Outcomes, the leading research organization on accountability for the achievement of students with disabilities has determined that "the vast majority of special education students (80-85 percent) can meet the same achievement standards as other students if they are given specially designed instruction, appropriate access, supports and accommodations as required [by federal law]."
Most educators don't get it, and the Supreme Court didn't either. The court decision did not preclude schools from providing services reasonably calculated to enable students to meet grade-level standards. But it simply left them too much room to continue their low expectations and lack of appropriate services.
It is now up to parents and advocates to pressure school systems to raise their expertise and judgment about the potential of students in special education. The expertise must particularly zero in on how to better teach reading. About 90 percent of all students with disabilities who do not have severe cognitive limitations are found eligible for special education because of big deficiencies in reading.
Yet, there is abundant research that the gaps in reading can be closed or narrowed substantially if schools use best practice reading interventions, as the National Center on Educational Outcomes found. At individual school meetings, parents and advocates should show that services based on this research will enable "progress appropriate in light of the child's circumstances." And that means a lot more progress than has been envisioned or achieved in the past.
Unfortunately, very few parents have the wherewithal to make the case for their children. It is the duty of school systems to raise their expertise on their own, and for policymakers to ensure that they do.
Locally, Baltimore City Public Schools have been on the national forefront in raising the bar for services, though implementation has lagged. On the other hand, the Maryland State Department of Education has done little to nothing.
Regrettably, the Supreme Court decision has not forced school systems nationwide to mend their ways based on a clear, higher standard for student progress. But it hasn't stood in their way either. Educators have the obligation under federal law to recognize the academic potential of students with disabilities and to provide them with the opportunity to perform at much higher levels than they do.
Kalman R. Hettleman, a former member of the Baltimore school board, is an advocate for students with disabilities. His email is email@example.com.