On March 22, 2017, the U.S. Supreme Court issued one of the most significant special education decisions in decades. The case, Endrew F. v. Douglas County School District, concerned a young boy with autism. Endrew F. et al. v. Douglas County School District RE-1 (Slip Opinion, March 22, 2017).
Endrew had attended his local public school from pre-school through 4th grade. Endrew’s severe behavioral difficulties related to his autism made it impossible for him to make any real educational progress: he screamed, climbed over furniture and other students, bolted from the classroom, and was obsessively fearful of many common items (flies, germs, etc.). At the end of 4th grade, his parents concluded that Endrew was not making any progress either academically or functionally.
For many years, Endrew’s Individual Educational Programs (IEPs) were largely the same: Endrew’s IEPs repeated the same basic goals and objectives year after year. Endrew’s parents concluded that a totally new approach was needed in order for Endrew to break the cycle and make progress. The school district, however, presented Endrew’s parents with the same IEP and approach for 5th grade that it had offered for years. Endrew’s parents had had enough. They removed Endrew from the Colorado public school and placed him at Firefly Autism House, a private school that specializes in educating children with autism. Endrew did very well at Firefly; his behavior improved so much in 6 months that he was able to make progress on his academic goals. Endrew’s parents met with the Douglas County School District to request that it offer an IEP with the same behavioral approach used by Firefly. Instead, school officials offered an IEP substantially identical in approach to that offered in all of the previous years. Endrew’s parents filed for a hearing, contending that the IEP offered by the school district was not reasonably calculated to provide Endrew with a free appropriate public education (a “FAPE”) as the federal special education law requires.
Endrew’s parents lost at the administrative level, the district court level, and at the circuit court level (10th Circuit). Those courts agreed that Endrew had not shown “immense educational growth,” but they concluded that because Endrew’s IEPs had been modified slightly year over year, those modifications were enough to establish that Endrew had made some minimal progress on at least some of his objectives. As the proposed IEP was similar to the past IEPs, the courts reasoned that it, too, would allow Endrew to continue to make at least “some” progress. The courts concluded that “some” educational benefit was all that the law required, and that the IEP was sufficient as long as it would confer an educational benefit that was “merely … more than de minimis.” (In so holding, the 10th Circuit panel followed a 2008 decision authored by current U.S. Supreme Court nominee Neil Gorsuch.)
The U.S. Supreme Court heard argument on the case in January 2017. The school district aimed lower than even the 10th Circuit, contending that the federal special education law (known as “IDEA”) does not require schools to provide any particular level of education. Rather, the school district claimed that the IDEA only prescribes a set of procedures that school districts are required to follow when producing an IEP. Endrew’s parents argued that the IDEA requires much more, and urged that the law mandates a school district to propose an education that would provide an opportunity to a disabled child that is “substantially equal” to that provided to non-disabled children.
The Supreme Court declined to adopt either approach. The Court rejected the parents’ “substantially equal” approach on the grounds that it was unworkable and would require school districts and courts to make “impossible measurements and comparisons.” The Court also rejected the school district’s interpretation that the IDEA requires only adherence to certain procedures. The Court observed that the IDEA cites to the child’s ability to make progress in the general education curriculum as the standard for crafting the individualized education program. The Court concluded that the IDEA expects that the typical level of instruction provided for most students will be a level that allows a disabled child to advance year over year through the general education curriculum.
What, then, of those disabled children like Endrew F. who are not capable of advancing with their same-aged peers through the general education curriculum? The Court observed that an education that provides those children with “barely more than de minimis progress” is “hardly an education at all.” The Court held that such a child’s educational program “must be reasonably calculated to enable a child to make progress appropriate in light of his circumstances.” This new standard is repeated three times in the decision. The Court thus vacated the 10th Circuit Court’s decision and sent the case back for further consideration.
Determining what the new Endrew F. standard means in any particular case is the challenge for the future. The court declined to define what would be an appropriate education in all cases, noting that each child’s circumstances are unique. Rather, it stated that the educational program must be “appropriately ambitious” in light of the student’s circumstances, just as it is “appropriately ambitious” to expect that students who are fully integrated into the general education environment will learn the curriculum and advance from year to year. (In an interesting footnote that could become important in years to come, the Court explicitly stated that it was not ruling that every child who advances from grade to grade is automatically receiving a FAPE.) The Court also put school districts on notice that although courts will continue to defer to the expertise and judgment of school officials in these cases, reviewing courts will expect that a school district will be able to offer “a cogent and responsive explanation” of how the particular student’s IEP is reasonably calculated to allow that student to make progress that is “appropriate in light of his circumstances.”
This decision is a victory for children with special needs, their parents, and for all those who care about disabled students. The Court recognized that every child should have the opportunity to be challenged, and that the IDEA requires an education that is “markedly more demanding” than a program that yields minimal results. It explicitly rejected the idea that the law countenances an education where students sit idly by, waiting for the time when they are old enough to drop out. Against the backdrop of a system where too many of our students continue to be dead-ended in tedious and unambitious programs, this is an important and encouraging decision.