Inconvenient Metaphors: DeVos Confirmed! IDEA Website Down!

UPDATE: A spokesperson for the Department of Education sent me this (I updated the title as well)

We were made aware of the problem with the site early this morning and  we are actively working to resolve. There have been server issues relating to this site going back to at least Jan. 27.

We're actively working to resolve right now and hope to have the site up and running any ASAP.

The site was not taken down.

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We have an IEP this morning and I wasn't planning to blog anything, as I have two stories being published today. But then I was alerted to this.

BREAKING: Our children's future. IDEA's website is 404 not found. https://t.co/JvWYmJKOuJ #DumpDevos pic.twitter.com/0hbFJzJqf0

— David M. Perry (@Lollardfish) February 8, 2017

The IDEA website is not loading. The connection times out, so it could just be some kind of glitch, but we'll see (yes, technies, I know it's not a 404). There's some archived information if you did through search results, but tons of the material is not currently accessible.

The Department of Education Office of Special Education and internet publications around disability law are not political. There is nothing especially partisan about IDEA, though there are debates around enforcement and the degree of education required (with a big SCOTUS decision coming down about it). It's a bizarre thing to do.

Would a new Secretary of Education with a new head of OSEP want to revise pages? Sure. But to simply take them down, the morning after Devos was confirmed, especially given her wild incoherence around IDEA specifically ... it's a very odd decision.

Some of this stuff may be FOIAable, but I'm not an expert on that. Time to learn new research skills. I'll dig.

But in the meantime, we really do have an IEP. It's not just ironic timing.

IEP at SCOTUS: Endrew F. vs Douglas County

It's almost impossible right now to keep up with all the stories circulating. Congress is defunding the ACA. The Republicans voted down an amendment against mandating coverage of people with pre-existing conditions, condemning millions of people to an early death, if that actually ends up being law. Donald Trump's banana republic press conference demands a unified response from the press, and not to mention that until he releases his tax return, we should assume he is financially compromised by both Russia and China, and will make his military decisions based on his personal financial wellbeing. I haven't even gotten to the vaccination story yet. We're overwhelmed.

Next week, I hope to write more about being overwhelmed and some thoughts from the Berlusconi era in Italy on how to respond (I've been waiting for someone else's piece to emerge).

In the meantime, SCOTUS heard a case that could prove vitally important to special education across the country. Special education is federally mandated, but was never funded (it was supposed to be funded, but you know Congress ...).

There's a very real chance that the Supreme Court will rule that school districts must go beyond "de minimis," meaning education that takes us beyond the minimum possible, to a standard “aimed at significant educational progress in light of the child’s circumstances.” That would, to my reckoning, represent an enormous judicial push to improve special education standards across every school district in America.

And then ... well, then there will be a lot of local battles between family and schools to come. But the IEP process is already so fraught, so filled with litigation, that I have a hard time believing it'll get worse.

Here's SCOTUSblog on Endrew F. v Douglas County:

At today’s oral argument in the case of a Colorado student with autism, one thing seemed relatively clear: The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial. It was less clear exactly what standard (if any) the justices might substitute for the “more than merely de minimis” standard, but a standard “with bite” – as Justices Ruth Bader Ginsburg and Elena Kagan put it – would be a welcome development for children with disabilities and their parents.

A standard "with bite" could be pretty good. It's not inconceivable that this SCOTUS could provide such a thing.

And yet ...

Despite Fisher’s efforts to focus the justices on the text of the statute, they remained skeptical. Justice Anthony Kennedy expressed concern about what new costs Fisher’s proposed standard might impose on school districts, by requiring them to provide additional services, while Justice Stephen Breyer worried aloud about the propriety of the justices – who, he suggested, “don’t know much about” education – creating a standard that could then be interpreted differently by “judges and lawyers and people” all over the country.

Chief Justice John Roberts flagged a different potential problem, echoed by Kagan: How would Fisher’s proposed standard work for students who, because of their disabilities, may not be able to follow the general educational curriculum? Suggesting that there is some “flexibility” in the IDEA, Fisher advanced a slightly different version of his proposed standard: A student’s IEP should generally “be tailored to achieve a general educational curriculum at grade level”; if that is not possible, the IEP should use alternative benchmarks that are “the highest possible achievable by the student.”

So what's going to happen? Who knows, but here's the key possibility:

Today’s argument ended with the justices on the horns of a dilemma, as they so often are. Despite excellent advocacy from all three lawyers, there is no clear and easy answer. But they seemed sufficiently unhappy with the “more than merely de minimis” standard that they are likely to strike it down. The standard proposed by the federal government – which would require the school district to offer a program “aimed at significant educational progress in light of the child’s circumstances” – seems to be the most likely replacement, both because the justices regard it as most consistent with existing law and because it comes from the Department of Education, which – as Breyer noted – has expertise in issues related to education and the IDEA. And even if it’s not the standard that Drew and his family are advocating, they would no doubt nonetheless regard it as a significant victory. A decision in the case is expected by summer.

SCOTUS - What's a Free Appropriate Public Education?

Big case coming up next week about education for people with disabilities. "Special education" is mandated by the federal government but funded from the states and localities, and is often a place where school districts try to cut corners, provide the absolute legal minimum of services, and otherwise shirk their obligations.

Here's SCOTUSblog on the case:

Next week, the court will hear oral argument in the case of a Colorado boy who has asked the justices to clarify exactly what kind of “educational benefits” an IEP must provide: Is it enough that the benefit is simply non-trivial, or does the IDEA require more? The boy and his family argue that a greater benefit is required, and that a ruling to the contrary will directly affect the quality of the education that is offered to millions of children with disabilities. But the school district where the boy attended school counters that imposing the kind of specific standard proposed by the boy and his family will create its own set of difficulties, including entangling courts in complicated inquiries that they are not qualified to undertake.

I may write about the arguments, depending on the direction they go. I'll certainly write about the results.

UPDATE: Here's a summary from Wrightslaw.