12/13/2017

By: Brittany Flaherty Theis

On December 7, 2017, the United States Department of Education (the “Department”) issued a Question and Answer document regarding the United States Supreme Court’s decision in Endrew F. V. Douglas County School District RE-1, a special education case. In Endrew F., decided March 22, 2017, the Court rejected the “more than de minimis” standard used by several federal courts to determine whether students were receiving a free appropriate public education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”). Whitt Law’s News & Knowledge blog described the Endrew F. case in detail here.

In its Question and Answer document, the Department provides its answers to the following questions:

Overview:

  1. What were the facts surrounding the Endrew F. decision?
  2. What is the crucial issue that was addressed in the Endrew F. decision?
  3. What was the Supreme Court’s final decision in Endrew F.?

Clarification of IDEA’s FAPE Requirement

  1. How is FAPE defined in the IDEA?
  2. Prior to Endrew F., what did the Court say about the substantive standard for FAPE?
  3. What does “de minimis” mean and why did the Tenth Circuit Court apply the “de minimis” standard in the Endrew F. case?
  4. How did Endrew F. clarify the standard for determining FAPE and educational benefit?
  5. Does the standard in Endrew F. apply prospectively to IDEA cases?
  6. Does the standard in Endrew F. only apply to situations similar to the facts presented in Endrew F.?

Considerations for Implementation

  1. What does “reasonably calculated” mean?
  2. What does “progress appropriate in light of the child’s circumstances” mean?
  3. How can an IEP Team ensure that every child has the chance to meet challenging objectives?
  4. How can IEP Teams determine if IEP annual goals are appropriately ambitious?
  5. How can IEP Teams implement the Endrew F. standard for children with the most significant cognitive disabilities?
  6. What actions should IEP Teams take if a child is not making progress at the level the IEP Team expected?
  7. Must IEPs address the use of positive behavioral interventions and supports?
  8. How does the Endrew F. decision impact placement decisions?
  9. Is there anything IEP teams should do differently as a result of the Endrew F. decision?
  10. Is there anything SEAs should do differently as a result of the Endrew F. decision?
  11. Has the Endrew F. decision affected parents’ due process rights under the IDEA?

Throughout the guidance document, the Department highlighted the Court’s emphasis that “every child should have the chance to meet challenging objectives.” The Department also gave insight into its analysis regarding the Court’s statement that a school must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” which is more demanding than the “merely more than de minimis standard” applied by several federal circuit courts.

The Department concluded the introduction to the guidance document by indicating that its Office of Special Education and Rehabilitative Services (OSERS) is interested in comments from families, teachers, administrators, and other stakeholders to assist it in identifying implementation questions and best practices.

Whitt Law attorneys are available to help navigate special educations matters. If you have questions regarding the Department’s Questions and Answers on U.S. Supreme Court Case Decision: Endrew F. v. Douglas County School District Re-1 or you need assistance with a special education matter, please contact Whitt Law Attorney Brittany Flaherty Theis.

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