By: Brittany Flaherty Theis
On March 22, 2017, the United States Supreme Court issued a highly anticipated opinion in Endrew F. v. Douglas County School District RE-1. In Endrew F., the Court describes, explains, and expands upon the Individuals with Disabilities Education Act (“IDEA” or the “Act”) and case law interpreting the IDEA. Pursuant to the IDEA, States can receive federal funds to assist in educating students with disabilities in exchange for agreeing to comply with federal requirements. Endrew F. rejects the “more than de minimis” standard that has been used by many circuit courts, including the Seventh Circuit, of which Illinois is a part.
Free Appropriate Public Education and Individualized Education Programs
The IDEA requires states to provide a free appropriate public education (“FAPE”) to all eligible children. FAPE includes both special education (specifically designed instruction to meet the unique needs of a child with a disability) and related services (the support services required to assist a child to benefit from that instruction). Special education and related services are provided to each student through an individualized education program (“IEP”) designed by a team of teachers, school officials, and the child’s parents in consideration of the child’s individual circumstances. Every IEP must include a description of the child’s present levels of academic achievement and functional performance, how the child’s disability affects the child’s involvement and progress in the general education curriculum, measurable goals, how the child’s progress toward meeting those goals will be gauged, and the special education and related services that will be provided so that the child may “advance appropriately” toward attaining the goals. When possible, the child should be involved in and make progress in the general education curriculum.
In a prior United States Supreme Court decision, known as Rowley, the Court explained that a child’s IEP must be “reasonably calculated to enable the child to receive educational benefits,” and that, for children in a general education classroom that typically means the IEP must be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” However, the Court’s decision was limited to the facts of the case before it; a student receiving a “substantial suite” of specialized instruction and services pursuant to her IEP that was making excellent progress. In Rowley, the Court declined to establish a test for determining the adequacy of educational benefits conferred upon all children covered under the IDEA, which brings us to the case of Endrew F. v. Douglas County School District RE-1.
Endrew F.
Endrew, who lived in a state that accepts IDEA funding, was diagnosed with autism when he was two and, therefore, qualified as a child with a disability under the IDEA. In its decision, the Court describes Endrew’s IEPs for preschool through fourth grade, when he attended school in Douglas County School District. During Endrew’s fourth grade year, his parents became dissatisfied with Endrew’s progress. In April 2010, when they were presented with a proposed IEP for Endrew’s fifth grade year that they thought was much the same as the past years’ IEPs, they removed Endrew from Douglas County School District and enrolled him at Firefly, a private school specializing in the education of children with autism. At the private school, Endrew’s behavior and academics improved.
In November 2010, Endrew’s parents and representatives from Douglas County School District met to discuss Endrew and develop a new IEP. Endrew’s parents ultimately rejected the new IEP, believing that it did not differ in any meaningful way from the prior IEPs. Thereafter, they filed a complaint with the Colorado Department of Education seeking reimbursement for Endrew’s tuition at Firefly, contending that the final proposed IEP was not “reasonably calculated to enable Endrew to receive educational benefits” and therefore denied him a FAPE. The Administrative Law Judge for the Colorado Department of Education disagreed and denied relief. When Endrew’s parents appealed to the federal district court, the court gave “due weight” to the Administrative Law Judge’s decision and affirmed. The Tenth Circuit Court of Appeals also affirmed, stating that “instruction and services furnished to children with disabilities must be calculated to confer ‘some educational benefit,’” which it interpreted to mean “more than de minimis.” The United States Supreme Court accepted the parents’ appeal.
Clarifying and Expanding Upon Rowley
The school district argued 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.” The Supreme Court explained that although the school district pointed to statements in the Rowley decision that supported its position, the school district put too much weight on those statements in isolation.
In Rowley, the Supreme Court was primarily concerned with the lower courts’ rulings that effectively interpreted the IDEA as empowering judges to elaborate federal common law for public education, while also determining that a child performing better than most of her classmates was denied a FAPE. In contrast to the statements cited by the school district, the Supreme Court highlighted its prior statements from the Rowley decision wherein the Court did acknowledge a school district’s need to provide instruction that is sufficient to confer some educational benefit, but went on to expressly decline to establish a set test for determining the adequacy of educational benefits under the IDEA.
In Endrew F., however, the Court stated that, together, the IDEA and Rowley “point 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 in light of the child’s circumstances.” Additionally, the Supreme Court stated that the “IEP must aim to enable the child to make progress. . . . The goals may differ, but every child should have the chance to meet challenging objectives.” It also explained that the use of “reasonably calculated” recognizes that preparing an IEP requires prospective judgment by school officials, informed by their expertise, as well as the input of the child’s parents or guardians. When reviewing IEPs, courts must consider whether the IEP is reasonable, not whether it is ideal. The standard set forth by the Court in this decision is one which the Court said “is markedly more demanding than the ‘merely more than de minimis’ test” applied by the circuit court.
The Court declined to elaborate on what appropriate progress will look like in each case, but warned that this should not be viewed by courts as an invitation to “substitute their own notions of sound educational policy for those of the school authorities which they review.” The IDEA vests school authorities with significant responsibility, and the IEP design, implementation, and review processes, by their very nature, ensure that parents and school authorities will have opportunities to express their opinions on the degree of a child’s progress and that school authorities will have had an opportunity to express their judgment and expertise by the time any dispute reaches a court.
The Endrew F. decision changes the “more than de minimis” standard that has been applied by the Seventh Circuit, and therefore, impacts Illinois school districts. Attorneys at Whitt Law are available to assist school districts with the IDEA and the Supreme Court’s ruling in the Endrew F. decision. For assistance with special education matters, please contact Whitt Law Attorneys Rick Petesch and Brittany Theis.
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