March 2017


Case Background Thirty-five years ago, the U.S. Supreme Court in Board of Education of Hendrick Hudson CSD v. Rowley held that the Individual With Disabilities Act establishes a substantive right to a “free appropriate public education” for certain children with disabilities. The court declined, however, to endorse any one standard for determining when students with disabilities are receiving sufficient educational benefits to satisfy the requirements of the Act. In Endrew F. v. Douglas County School District, the Court decided that “more difficult problem.”

Conflict Among Circuit Courts Lands in the U.S. Supreme Court

Since Rowley, the Federal Courts of Appeals had become divided over the level of educational benefit the IDEA demands. For example the 3rd and 6th Circuits held that IEPs must be calculated to provide a meaningful education benefit, holding that nothing in Rowley precludes the setting of a higher standard than the provisions of “some” or “any” educational benefit, as long as that standard does not require schools to maximize each child’s potential. By contrast, the 2nd, 5th and 8th Circuits had ruled that the IDEA is satisfied when an IEP is reasonably calculated to produce “more than only trivial advancement.” Other Circuit Courts of Appeals were similarly divided over what is the appropriate standard under the Act. Note the 2nd Circuit Court of Appeals includes New York. The U.S. Supreme granted Certiorari to hear the Endrew F. case, and issued their unanimous decision on March 22, 2017.

Rowley Reviewed

The Court first addressed the FAPE requirement under the IDEA in the Rowley case which involved a first grader, Amy Rowley, with a hearing impairment. The district offered Rowley an IEP under which she would receive instruction in a regular classroom, and spend time each week with a special tutor and a speech therapist. The district proposed that Amy’s teacher speak into a wireless transmitter, and that Amy use an FM hearing aid to amplify the teacher’s words. The district offered to supply both components of this system. The district also argued that the IDEA did not create substantive individual rights, and that the FAPE provision was merely “aspirational.”

Amy’s parents argued that the IEP did not go far enough, and that they should have provided her a sign-language interpreter in all of her classes. The parents argued that the district was required to provide instruction and services that would provide Amy an “equal educational opportunity” relative to children without disabilities.

But the Court rejected both arguments. It rejected the parents argument for an “equal opportunity” standard, concluding that “free appropriate public education” was a phrase “too complex to be captured by the word ‘equal’ whether one is speaking of opportunities or services.” And it rejected the school district’s argument that the FAPE requirement was actually no requirement at all, and made clear that the Act guarantees a substantively adequate program of education to all children. Instead the Court charted a middle path, ruling that the IDEA guarantees a substantively adequate program of education to all eligible children. The Court explained that this requirement is satisfied, and a child has received a FAPE, if the child’s IEP sets out an educational program that is “reasonably calculated to enable the child to receive educational benefits.”

For children receiving instruction in a regular classroom, this would generally require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” In view of Amy Rowley’s excellent progress, and the “substantial” suite of specialized instruction and services offered in her IEP, the Court concluded that her program satisfied the FAPE requirement. However, the Court expressly confined its ruling to the facts of the Rowley case, and declined to establish the adequacy of educational benefits conferred upon all children covered by the Act, including those not fully integrated in the regular classroom and not able to achieve on grade level.

Facts of the Endrew F Case

Endrew F. was diagnosed with Autism at age two. He attended public school from preschool through the fourth grade, and received an IEP each year. In 2nd and 3rd grade, he began experiencing behavioral problems in school, such as yelling, crying, and dropping to the floor. In 4th grade, these problems became more frequent and severe. He engaged in self-harming behaviors, such as head banging, and regularly had to be removed from the classroom. On at least two occasions, he ran away from school, and when he returned grew agitated and removed his clothes. Although Endrew displayed a number of strengths – his teachers described him as a humorous child with a “sweet disposition” who “show[ed] concern [] for friends” – he still “exhibited multiple behaviors that inhibited his ability to access learning in the classroom.” Endrew would scream in class, climb over furniture and other students, and occasionally run away from school. He was afflicted by severe fears of commonplace things like flies, spills, and public restrooms.

By the fourth grade, the parents believed his academic and functional progress had stalled. For example, his fourth grade IEP stated that “Endrew will learn multiplication facts 6 to 10”; his 5th grade IEP stated “Endrew will learn multiplication facts 6 to 12.” When the school district proposed a fifth grade IEP that was similar to those from previous years, they removed him from public school, and enrolled him in a private school that specializes in educating children with autism, where he made significant progress. The district developed a behavior intervention plan that identified Endrew’s most problematic behaviors and set out particular strategies for addressing them. The school also added “heft” to Endrew’s academic goals. Within months Endrew’s behavior improved significantly, and he made a degree of academic progress that had eluded him in public school. Approximately six months after Endrew was enrolled in the private school, his parents again met with school district representatives. The district presented a new IEP that the parents considered no more adequate than the ones proposed earlier, and rejected it.

The parents filed a complaint under the IDEA with the Colorado Department of Education, seeking reimbursement for Endrew’s tuition at the private school. The parents and the school district agreed that Endrew’s behavioral issues interfered with his ability to learn. The parties also agreed that after Endrew was placed in the new school, that placement was appropriate under the IDEA, and that he made academic, social and behavioral progress there.

The parents claim after the Impartial Hearing for tuition reimbursement was denied by the hearing officer, and on appeal the Federal District Court affirmed the Hearing Officer’s ruling. The Tenth Circuit Court of Appeals also affirmed that determination, interpreting Rowley to establish a rule that a child’s IEP is adequate as long as it is calculated to confer an “educational benefit [that is] merely … more than de minimus”, and concluded that Endrew’s IEP had been “reasonably calculated to enable [him] to make some progress.” The court accordingly held that Endrew had received a FAPE.

U.S. Supreme Court Decision in Endrew F

In Endrew F, the school district argued to the Court that Rowley established that an IEP need not promise any particular level of benefit, so long as it is “reasonably calculated” to provide some benefit, as opposed to none, and urged the Court to conclusively adopt a “some educational benefit” standard. While the Court acknowledged that certain statements in Rowley did support the school district’s argument, it thought the school district made too much of the argument. It pointed out that the statement that the IDEA imposed no explicit substantive standard must be evaluated alongside the Court’s statement that a substantive standard was implicit in the Act. The Court further noted there was little significance in the Court’s language concerning the requirement that States provide instruction calculated to “confer some educational benefit.” The Court stated it had no need to say anything more particular, since the case before it involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits.

Instead, the Court stated that its primary concern in Rowley was to correct what it viewed as the surprising rulings that the IDEA effectively empowers judges to elaborate a federal common law of public education, and that a child performing better than most in her class had been denied a FAPE. The Court in Rowley was not concerned with precisely articulating a governing standard for closer cases. With respect to the statement that the IDEA does not “guarantee any particular level of education” the court stated that simply reflects the unobjectionable proposition that the IDEA cannot and does not promise any particular educational outcome. “No law could do that – for any child.”

A “General Approach” – Having rejected that Rowley articulated an overarching standard to evaluate the adequacy of the education provided under the Act, the Court stated that the decision and the statutory language of IDEA pointed to a general approach: “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The court held as follows:

  • The “reasonably calculated” qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials.
  • The Act contemplates this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.
  • The IEP must aim to enable the child to make progress as the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.
  • A focus on the particular child is at the core of the IDEA, and so the progress contemplated by the IEP must be appropriate in light of the child’s circumstances, and is constructed only after careful consideration of the child’s present levels of achievement, disability and potential for growth.
  • The IDEA requires participating States to educate a wide spectrum of students with disabilities, and the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.
  • In determining what it means to meet the unique needs of a child with a disability, the provisions of the Act governing the IEP development process are a natural source of guidance. It is through the IEP that the FAPE required by the Act is tailored to the unique needs of a particular child.
  • Advancement from grade to grade is appropriately ambitious for most children in the regular classroom. Where advancing from grade to grade is not appropriately ambitious, then his educational program nonetheless must be appropriately ambitious in light of his circumstances. The goals may differ, but every child should have the chance to meet challenging objectives.
  • The Court rejected the standard proposed by the school district in favor of the more general one described above. It reasoned that whatever else can be said about it, this standard is markedly more demanding than the “merely more than de minimis test” applied by the 10th Circuit. A student offered an educational program providing “merely more than de minimis” can hardly be said to have been offered an education at all. The IDEA demands more.
  • The Court also noted that the nature of the IEP process ensures parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue. By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.

DISCLAIMER The Blue Sea Educator Newsletter is provided for informational purposes only, and is not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult with an attorney regarding legal matters.

Case Notes

  • Special Education litigation will likely increase in light of the Court’s ruling as advocates seek to test the its limits, and challenge/seek clarification of the language in the Court’s decision.
  • At the risk of sounding overly simplistic, the Court’s ruling divides students into two over-arching groups: those achieving at grade level, and those not. What is “appropriately ambitious”, and how this assessment is reflected in “challenging objectives” for students whose IEPs do not aim for grade-level advancement may be a source of frequent litigation. A battle of experts may be contemplated over issues related to present levels of performance, pedagogy, educational methodology, evaluations, and evidence-based assessments generally.
  • Query: Is ‘performing at grade level limited to the academic; how does or might behavioral progress or impediment fit in for various disabilities, whether or not manifestation? Also, how might the new ruling affect the practice of ‘social promotion’ where it might exist?
  • The Court describes the IDEA as an “ambitious” law, and that a “substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.” The Court’s decision also reveals what it will accept as appropriate (e.g., Amy Rowley passing at grade level), and what it will not (the de minimus standard applied by many Courts of Appeals, including the 2nd Circuit in New York). The greatest impact may be for those students who do not achieve at grade level?
  • The Court speaks about deference to school authorities, which is based on the application of expertise and exercise of judgment. The Court reasons that by the time a dispute reaches court, the court may expect school authorities to be able to offer a “cogent and responsive” explanation for their decisions. This may be less deferential than that afforded school district officials in previous federal cases.
  • Query: What does the phrase “fully integrated into the classroom” mean for students in an Inclusion setting, for those with a modified curriculum?
  • Link to Full Case: