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U.S. Supreme Court Changes Standard for Required Level of Educational Benefit for Students with Disabilities

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Today, the Supreme Court of the United States issued its much-anticipated decision in Endrew F. v. Douglas County School Dist. Re-1, No. 15-827, (March 22, 2017), modifying the longstanding standard for a free appropriate education (FAPE) for children with disabilities. In Endrew F., the Court revisited its previous decision in Board of Education v. Rowley, 458 U.S. 176 (1982), a seminal decision which set the standard for FAPE under the IDEA. After Rowley was decided, courts variously described the Rowley standard as requiring some educational benefit, a more than de minimis or trivial educational benefit, or a meaningful educational benefit. This split among the circuits prompted the U.S. Supreme Court to review Endrew F.

Endrew F. involved an elementary school child with autism who was making some modest progress towards several of his academic and functional goals, but whose behaviors were escalating each year. The student hit and kicked other people, ran out of the classroom and school, engaged in self-harming behavior, and twice urinated and defecated in the “calming room.” The parents eventually rejected the IEP that was offered by the school district and enrolled the student in a private school, where he thrived. The parents then asked that the school district reimburse them for the cost of the private school tuition, arguing that the school district failed to provide FAPE. They argued that the IEP offered by the district was inadequate due to a lack of progress on goals in the IEP and the failure of the school district to put in place an appropriate Behavior Intervention Plan (BIP). The impact of behavioral issues in determining whether an IEP was reasonably calculated to provide FAPE was not an issue that the Court had to consider in Rowley, as the student in that case did not have behavioral issues and was progressing smoothly through the regular curriculum.

The Tenth Circuit Court of Appeals determined that the school district did not have a duty to maximize the student’s educational progress and must only provide “some” educational benefit. The court found that the student was making some academic progress, the school district made an effort to address the behavioral issues, and a BIP was not required by the IDEA. Therefore, the court concluded that, although it was a close call, the school district had met the “some” benefit standard for FAPE.

The parents appealed to the U.S. Supreme Court, arguing that the standard for FAPE should be a “substantial” educational benefit. The parents highlighted the fact that the IDEA had been amended twice since Rowley was decided, and it now seeks to ensure equality of opportunity for children with disabilities. The Solicitor General, speaking on behalf of the federal administration, agreed with the parents that a program that provides a more than de minimis benefit does not provide FAPE. The Solicitor General asked the Court to adopt a standard for FAPE that would require significant or appropriate educational progress in light of the child’s circumstances.

In a unanimous decision, the Court ruled today that “[t]o 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 clarified that a student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular education classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” The Court did not decide the issue of whether the student in Endrew F. had made appropriate progress in light of his circumstances. The Court also declined to create a bright-line rule or elaborate on what “appropriate” progress would look like from case to case.

The Court’s decision is neither a ringing endorsement nor a wholesale repudiation of Rowley. Rather, it is a logical extension of its foundational principles. But even more, the Court reminds us of its confidence in the expertise and professionalism of school officials as it cautions courts not to “substitute their own notions of sound educational policy for those of the school authorities which they review.”

School officials should undertake to incorporate this new standard as they conduct annual IEP reviews and consider whether students are making expected and appropriate progress.  Administrators and case managers should be made aware of Endrew F’s individualized assessment, especially as it relates to children with behavioral and emotional issues. This time of the year is a perfect opportunity as IEPs and Placements are considered for the 2017-18 School Year.

If you have any questions about this Legal Update, a particular student situation, or staff training on the new standard for FAPE, please contact Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, Gary Ruesch at gruesch@buelowvetter.com or 262-264-0263, or your Buelow Vetter attorney.

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