February 14, 2018
Many of you may remember the unanimous United States Supreme Court opinion last year in the landmark case of Endrew F. v. Douglas County School District. The Court in that case held that a school district must provide more under the IDEA than merely “some de minimus benefit” to those on an IEP. Rather, the benefits must be reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances. [Note: We switched to a new website host earlier this year which wiped out our old blog posts. I’ve reposted our original Endrew F. blog post at the end of this story.]
The Supreme Court, having made its pronouncement of law, then remanded back to the federal district court in Denver to determine whether the Douglas County School District had met that standard respecting Endrew, who has autism.
This week, the federal District County found that the school district had not met that standard, and ordered the school district to pay to Endrew’s family:
- The costs they have incurred to privately educate Endrew in a school for special needs children since 2010, and possibly future costs until Endrew (now 18) turns 21.
- Their costs of litigation.
- Their attorney fees.
The amount the school district must pay may be in the seven figures. The school district still has an opportunity to appeal the ruling.
As an aside, some have expressed concern that U.S. Supreme Court Justice Neil Gorsuch, while serving on the 10th Circuit Court of Appeals (which covers Colorado), ruled in a separate case that the IDEA only requires de minimus benefit. However, it must be understood that a lower court judge is constrained by what that judge believes higher-court precedent to be, even if that precedent is murky, as in the matter of what the IDEA requires. A judgment of law by a lower court judge is not necessarily indicative of what that judge would decide once on the highest court.
Now, the original blog post from last year:
US Supreme Court Establishes Standards for “Free Appropriate Public Education”
Special Needs Law Group of Massachusetts, PC
March 30, 2017
Endrew F. v. Douglas County School District
After no IDEA Supreme Court cases for decades until this year, it took the United States Supreme Court only seventy days from oral argument to issue a unanimous opinion authored by the Chief Justice in favor of the plaintiffs in the Endrew F. case. This comes hot on the heels of the Fry case, another plaintiff victory in a Supreme Court IDEA case, reported here [link no longer available].
The Individuals with Disabilities Education Act (IDEA) was enacted in 1975. It offers states federal funds to assist in educating children with disabilities. In exchange, those states must provide a “free appropriate public education,” or FAPE, to those children. A FAPE includes both special education and the support services required to assist the child to benefit from that special education, and is to be reflected in each child’s Individualized Education Program (IEP). Yet, after all these years, just what constitutes a FAPE has been ill-defined, with school districts too often not offering meaningful supports for special needs children.
The Supreme Court ended that state of uncertainty with Endrew F.
In this case, the School District argued that the statutory methodology for establishing an IEP are “procedural only” and grant no substantive rights, and that the IEP is adequate so long as it is reasonably calculated to provide “some benefit” as opposed to none. This has been the position of many school districts and many courts over the years. This position was upheld against Endrew in the lower courts, but has now been flatly rejected by the Supreme Court.
Instead, the Supreme Court vacated the decisions of the lower courts, and set forth the following standards for a FAPE:
- 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 IDEA has a preference that children with disabilities receive education in the regular classroom setting when possible. For a child fully integrated in the regular classroom, the standard is that an IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. As advancement is granted to students demonstrating adequate learning of the course material, the system itself monitors the child’s educational progress.
- The most significant aspect of Endrew is that for a child not fully integrated in the regular classroom and not able to achieve on grade level, the IEP must be “appropriately ambitious in light of his or her circumstances” (just as grade advancement is appropriately ambitious for children in the regular classroom). Every child should “have the chance to meet challenging objectives.” This is not a formula, but is “markedly more demanding than the ‘merely more than de minimus’ test” applied by the lower courts.
- The standard for review of an IEP by a court is whether the IEP is reasonable, not whether the court regards it as ideal. A reviewing court should expect a school to be able to offer a cogent and responsive explanation for their decision that the IEP offered is reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.
It is also worth noting, for the next time you may be in a meeting with school officials, that the Court stated that “The focus on the particular child is at the core of the IDEA. The instruction offered must be specially designed to meet a child’s unique needs through an individualized education program. An IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.”
Annette’s Observation: First and foremost, many school districts and their counsel are just as relieved as parents to receive this guidance. It is long overdue.
Second, I am grateful to the Court for noting that the IEP process is not about filling out forms. It is an actual planning process to achieve a student’s goals. The goals are what is important, but the action and supports to get there are equally so.
So, if your school district liaison sits typing on their laptop the entire time, filling out the IEP form, you probably need to speak up and bring the focus back to your student.