Endrew F. v. Douglas County School District (2017)

On January 11, 2017, I was fortunate enough to attend oral arguments at the U.S. Supreme Court in the important special education case, Endrew F. v. Douglas County School District.  The case involved Endrew F., a young boy with Autism who attended a special education program in Douglas County School system in Colorado.  Endrew’s parents had requested a due process hearing, contending that the Douglas County School System had failed to provide him with a free appropriate public education (FAPE), as required by the Individuals with Disabilities Education Act (IDEA).

The IDEA defines a FAPE as special education and related services that (a) are provided at public expense, (b) meet the standards of the state educational agency (SEA), (c) include an appropriate preschool, elementary, or secondary education, and (d) are provided in conformity with the individualized education program (IEP).  Thus, a student’s FAPE is developed, implemented, and memorialized through the IEP.  Moreover, the IEP must be targeted toward meeting the student’s unique educational needs and be designed to confer educational benefit.

In 1982, the U.S. Supreme Court heard its first special education FAPE case, Board of Education v. Rowley.  Ruling that the special education services provided to a student had to be sufficient to confer some educational benefit upon a student with disabilities, the High Court developed a two-part test to determine if a school district had provided a student with a FAPE.  To determine whether a school district had provided a student a FAPE, the test required that a hearing officer or court ask first if a school district had adhered to the procedural requirements of the IDEA and second if a student’s IEP was reasonably calculated to enable the child to receive educational benefits?  In the years since the Rowley decision, hearing officers and judges had few difficulties in applying the first part of the Rowley standard, the procedural test, in FAPE cases.  The second part of the standard, the substantive test, however, proved to be much more difficult because hearing officers and judges would have to determine what degree of educational benefit was necessary to confer a FAPE.  Furthermore, courts were split on the question of what amount of benefit was necessary, with some courts holding that to confer FAPE a school district’s program had to confer meaningful educational benefit, whereas other courts held that the degree of benefit only had to be slightly more than trivial or de minimis.

This degree of educational benefit question was addressed in a decision by the U.S. Court of Appeals for the Tenth Circuit on August 25, 2015 in the case Endrew F v. Douglas County School District.  The case involved Endrew F (hereafter Drew), a young boy who was diagnosed with autism and attention deficit hyperactivity disorder (ADHD). Drew attended the Douglas County Schools from preschool through the fourth grade.  During those years, Drew received special education services in conformity with his IEP.  Because Drew had an especially difficult fourth grade year, his parents decided that he was no longer receiving benefit from his educational program.  They rejected the school district’s IEP fifth grade IEP and placed him in a special school for students with autism. The parents believed that Drew had been denied a FAPE, therefore, they requested tuition reimbursement for Drew’s private school placement.  The parents asserted that Drew had failed to make progress toward his measurable IEP goals and that the school had not addressed their child’s worsening problem behavior. The matter went to a due process hearing level.  The hearing officer decided that the school district had provided FAPE, therefore denying the parents request for tuition reimbursement.  The parents appealed to the U.S. District Court and eventually to the U.S. Court of Appeals for the 10th Circuit, losing at both levels. The parents filed with the U.S. Supreme Court, arguing that the hearing officer and courts needed to use the heightened meaningful benefit when determining if a FAPE had been conferred.

On September 29, 2016, the U.S. Supreme Court decided to hear Endrew F. v.  Douglas County School District.  In this case, the high Court agreed to address the following issue: What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the FAPE guaranteed by the IDEA.

The Supreme Court’s decision in the Endrew F. case, which, along with Board of Education of the Hendrick Hudson School District (1982), have been the only FAPE cases heard by the highest court in the land since the Education of All Handicapped Children Act was passed in 1975 (this law was renamed the IDEA in 1990).  The U.S. Supreme Court’s decision was handed down on March 22, 2017.  Chief Justice John Roberts wrote the opinion for a unanimous court in vacating and remanding the decision of the U.S. Court of Appeals for the 10th Circuit.  According to Justice Roberts to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a student to make academic and/or functional progress appropriate in light of the student’s circumstance. In the Court’s opinion, Justice Roberts also noted that the IEP, which he called term this “fact-intensive exercise,” is developed and implemented by school personnel and a student’s parents collaborating to create a special education program for pursuing academic and functional advancement. Justice Roberts wrote that the Court had developed a standard that was “markedly more demanding than the trivial or de minimis standard.”  According to the Court’s opinions:

When all is said and done, a student offered an educational program providing ‘merely more than de minimis progress from year to year can hardly be said to have been offered an education at all… A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”

Although the full effects of this ruling will not be evident until new FAPE cases reach the courts, we can be confident that the decision in Endrew means that the de minimis standard of educational benefit is dead and that courts will look more at student progress in future FAPE litigation.

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