On March 22, 2017, the Supreme Court of the United States issued a much-anticipated opinion regarding the appropriate standard to be used to determine whether a free appropriate public education (“FAPE”) has been provided under the Individuals with Disabilities Education Act (20 U.S.C. §1400, et. seq.). This decision is of extreme importance to both school districts and the parents of children with disabilities, as it will significantly impact the provision of special education and related services to children with disabilities.
In 1982, the Supreme Court first addressed the provision of FAPE in the case of Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982). In that decision, the Court declined to adopt a specific standard for determining “when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the [IDEA.]” Id. Rather, the Court held that the requirements of the IDEA are satisfied where a child’s individualized education program (“IEP”) establishes an educational program which is “reasonably calculated to enable the child to receive educational benefits[.]” Id. Under Rowley, this generally required an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id. The Rowley decision was subsequently widely interpreted by many lower courts to mean that an IEP was adequate so long as it was calculated to confer an educational benefit that was merely more than de minimis.
In Endrew, the Court squarely rejected these interpretations, stating that “[w]hen 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” and that “[f]or children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly … awaiting the time when they were old enough to ‘drop out.’’ ” The Court, however, also rejected the parents’ argument that FAPE is “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”
In lieu of the interpretation argued by either party, the Court established the new “gold standard” for determining whether FAPE has been provided under IDEA: whether the IEP “is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court then declined to further elaborate on how to define “appropriate progress” and cautioned the lower courts in their future applications of this decision and the IDEA:
We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule, however, should not be mistaken for “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.”
Endrew, therefore, creates a new standard which requires a heavily fact-intensive determination of the progress which is appropriate for each child in light of their unique and varying circumstances. Overall, this decision marks a notable change in the landscape of the IDEA and the provision of ESE services, which will have a significant impact on future due process proceedings.
Case Information: Endrew F. v. Douglas County School District, No. 15-827 (Mar 22, 2017).
Denay Brown, Esq.