Adam Dayan, Esq.
SCOTUS Decides Endrew F. Case And Establishes New Legal Standard
The U.S. Supreme Court recently decided the case of Endrew F. v. Douglas County School District (see 10/1/16 and 1/17/17 blog posts for further background). In a unanimous decision penned by Chief Justice John Roberts, SCOTUS held that, to meet its obligations under the IDEA, a school district must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.
In considering the issue of what level of benefit is guaranteed to individuals with disabilities, the Supreme Court revisited Rowley, a 1982 Supreme Court case which first considered the FAPE requirement. Rowley involved a child with a disability who was placed in a regular education classroom environment and was making steady progress. The Supreme Court in Rowley decided that the school district had met its burden of providing the child at issue with a FAPE, and was unwilling to articulate a standard that would relate to all students with disabilities including those who were placed in special education classrooms. Although the Court in that case stated that its decision was limited to the particular facts of the case, the Rowley decision has been somewhat problematic for parents over the last 35 years because school districts have often cited Rowley as a basis for denying parents the additional supports and services that their children might need.
In articulating a more robust standard in Endrew F., the Supreme Court indicated that the new standard was necessary "to remedy the pervasive and tragic academic stagnation" that caused Congress to pass IDEA legislation in the first place. The Court made clear that the standard it was articulating was more demanding than the "merely more than de minimis" test proffered by the school district and applied by the 10th Circuit. (Interestingly, Supreme Court nominee Neil Gorsuch was responsible for that 10th Circuit decision.) The Court also noted that every student's program must be appropriately ambitious and every student should have the chance to meet challenging objectives.
Under the new standard, for a child who is fully integrated into a regular education classroom, appropriate progress will typically mean passing marks and advancement from grade to grade (discussed further below). For a child who is not fully integrated into a regular education classroom, however, the amount of progress that a child should be making according to his/her IEP will depend on the child's unique circumstances.
The Court was unwilling, however, to adopt the "equal opportunity" standard proposed by Endrew F.'s parents. That is, the Court was unwilling to define FAPE as "an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities." Although the legislative intent of the IDEA makes clear that Congress did mean for students with disabilities to have opportunities to achieve academic success, attain self-sufficiency, and contribute to society, the Court was unwilling to require those opportunities to be substantially equal to the opportunities afforded children without disabilities.
The Court refused to establish a bright-line rule or elaborate on what appropriate program would look like in each case. As a result, the definition of "appropriate" will likely continue to be the source of much litigation between parents and school districts.
Finally, as I alluded to above, the Court specifically noted that there may be instances where a child is enrolled in a regular education environment, obtaining passing marks, and advancing from grade to grade, but still not be receiving FAPE (see footnote on page 14 of the decision). Take, for instance, the case of a twice exceptional (2E) student who is intellectually gifted, obtaining passing marks with little effort, and being promoted from grade to grade. If that 2E student's curriculum is not appropriately ambitious in light of his/her exceptional needs and abilities, it could be that the school district is not providing that student with FAPE. Time will tell how administrative law judges and courts are going to deal with this kind of situation.
In light of the foregoing, the 10th Circuit's decision was vacated, and the case was remanded for further consideration consistent with the Supreme Court's decision.