Special Education Services Just Got Easier. . . and Harder (The Endrew F. Supreme Court Decision in the Court's Own Words)

The Endrew F. Decision Re-Defines a “Free Appropriate Public Education" (FAPE) for Students with Disabilities (Part I of III)

Dear Colleague,

Introduction

On March 22nd, the Supreme Court made history by considering the depth and breadth of the “free appropriate public education” (FAPE) provision of the Individuals with Disabilities Education Act (IDEA) for all students with disabilities (SWD).

In their unanimous decision (Endrew F. v. Douglas County School District, 2017), the Supreme court expanded the scope of SWD’s special education rights in direct contrast to their decision 35 years earlier in Board of Ed. Of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley (1982).

In the final analysis, the Court ruled in Endrew that SWD’s Individualized Education Plans (IEPs) and special education services must be “reasonably calculated to enable a child to make progress in light of the child’s circumstances.” With this pronouncement, they rejected a lower court’s decision that FAPE proffers “merely more than (a) de minimus” standard of education for all students receiving special education services.

On one hand, the Supreme Court decision appears to make it easier for students with disabilities to demand and receive special education services and supports that help them to educationally progress.

On the other hand, given the current state of special education services across the country, the decision will make it harder for schools to actually provide these services.

At this point, you know pretty much what all of the news agencies (and many bloggers) have reported on this case.

But a close reading of the case reveals (a) why the Supreme Court really had no choice in making their ruling, and (b) how the differences in the Rowley and Endrew cases provide strong guidance to school districts relative to FAPE in the future.

And so. . . this Blog message will begin a three-part series analyzing and addressing the Endrew F. decision.

• In this Part I: We will let direct quotes from the Court’s ruling “tell Endrew’s story”—including why the Court took this significant case, how it differed from Rowley, and why it increases the “disability spectrum” relative to IDEA’s FAPE requirement.
• In Part II (in two weeks): We will discuss a service and support blueprint for academically struggling students and SWDs that can help schools organize their academic multi-tiered, “FAPE-proof” system.
• Finally, in Part III (in four weeks): We will discuss a service and support blueprint for behaviorally challenging students and SWDs that can help schools organize their social, emotional, behavioral multi-tiered, “FAPE-proof” system.

Who are Rowley and Endrew? The FAPE Disability Spectrum Expands

“The story begins” . . . by contrasting the two very different students in the Rowley and Endrew cases, respectfully.

According (verbatim) to the Endrew decision:

Plaintiff Amy Rowley was a first grader with impaired hearing. Her school district offered an IEP under which Amy would receive instruction in the regular classroom and spend time each week with a special tutor and a speech therapist. The district proposed that Amy’s classroom teacher speak into a wireless transmitter and that Amy use an FM hearing aid designed to amplify her teacher’s words; the district offered to supply both compo­nents of this system. But Amy’s parents argued that the IEP should go further and provide a sign-language interpreter in all of her classes. Contending that the school district’s refusal to furnish an interpreter denied Amy a FAPE, Amy’s parents initiated administrative proceed­ings, then filed a lawsuit under the Act. Rowley, 458 U. S., at 184–185.

The District Court agreed that Amy had been denied a FAPE. The court acknowledged that Amy was making excellent progress in school: She was “perform[ing] better than the average child in her class” and “advancing easily from grade to grade.” Id., at 185. At the same time, Amy “under[stood] considerably less of what goes on in class than she could if she were not deaf.” Ibid. Concluding that “it has been left entirely to the courts and the hearings officers to give content to the requirement of an ‘appropriate education,’” 483 F. Supp.528, 533 (SDNY 1980), the District Court ruled that Amy’s education was not “appropriate” unless it provided her “an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.” Rowley, 458 U. S., at 185–186. The Second Circuit agreed with this analysis and affirmed.

In this Court, the parties advanced starkly different understandings of the FAPE requirement. Amy’s parents defended the approach of the lower courts, arguing that the school district was required to provide instruction and services that would provide Amy an “equal educational opportunity” relative to children without disabilities. Id., at 198. The school district, for its part, contended that the IDEA “did not create substantive individual rights”; the FAPE provision was instead merely aspirational. Brief for Petitioners in Rowley, O. T. 1981, No. 80–1002, pp. 28, 41.

Neither position carried the day. On the one hand, this Court rejected the view that the IDEA gives “courts carte various judgments indicate should be imposed.” Rowley, 458 U. S., at 190, n. 11. After all, the statutory phrase “free appropriate public education” was expressly defined in the Act, even if the definition “tend[ed] toward the cryptic rather than the comprehensive.” Id., at 188. This Court went on to reject the “equal opportunity” standard adopted by the lower courts, concluding that “free appro­priate public education” was a phrase “too complex to be captured by the word ‘equal’ whether one is speaking of opportunities or services.” Id., at 199. The Court also viewed the standard as “entirely unworkable,” apt to require “impossible measurements and comparisons” that courts were ill suited to make. Id., at 198.

On the other hand, the Court also rejected the school district’s argument that the FAPE requirement was actu­ally no requirement at all. Id., at 200. Instead, the Court carefully charted a middle path. Even though “Congress was rather sketchy in establishing substantive require­ments” under the Act, id., at 206, the Court nonetheless made clear that the Act guarantees a substantively ade­quate program of education to all eligible children, id., at 200–202, 207; see id., at 193, n. 15 (describing the “sub­stantive standard . . . implicit in the Act”). We explained that this requirement is satisfied, and a child has received a FAPE, if the child’s IEP sets out an educational program that is “reasonably calculated to enable the child to receive educational benefits.” Id., at 207. For children receiving instruction in the regular classroom, this would generally require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id., at 204; see also id., at 203, n. 25.

In view of Amy Rowley’s excellent progress and the “substantial” suite of specialized instruction and services offered in her IEP, we concluded that her program satis­fied the FAPE requirement. Id., at 202. But we went no further. Instead, we expressly “confine[d] our analysis” to the facts of the case before us. Ibid. Observing that the Act requires States to “educate a wide spectrum” of chil­dren with disabilities and that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end,” we declined “to establish any one test for determining the adequacy of educational benefits conferred upon all chil­dren covered by the Act.” Ibid.

The critical points relative to the Rowley case are the following:

• Amy was a student whose disability involved having a hearing impairment.
• She was making “excellent progress in school”—“perform[ing] better than the average child in her (general education) class” and “advancing easily from grade to grade.” Her IEP provided her with “time each week with a special tutor and a speech therapist” and a “district propos(al) that Amy’s classroom teacher speak into a wireless transmitter and that Amy use an FM hearing aid designed to amplify her teacher’s words. . .”
•  The 1982 Supreme Court only considered “the facts of (this) case before us,” and concluded that the individualized educational program described above “satisfied the FAPE requirement”—presumably, because Amy was making progress given the services provided.
•  More specifically, the Court defined the provision of FAPE for students “receiving instruction in the regular classroom. . . (T)his would generally require an IEP ‘reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.’”
• Beyond this case, the Supreme Court did not provide a “test” (or a series of decision rules) that could be used in future cases to determine the presence of FAPE.

In fact, it acknowledged that IDEA requires states to “educate a wide spectrum of children with disabilities and that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end.”

This latter statement is exactly why the 2017 Supreme Court accepted the Endrew case. Spoiler alert: Because Endrew’s disability was largely behaviorally related, he was not making educational progress in the regular classroom, and he needed a substantially different special education placement and program.

The Endrew decision described Endrew, his disability, and its relationship to the case as follows:

Petitioner Endrew F. was diagnosed with autism at age two. Autism is a neurodevelopmental disorder generally marked by impaired social and communicative skills, “engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory expe­riences.” 34 CFR §300.8(c)(1)(i) (2016). A child with autism qualifies as a “[c]hild with a disability” under the IDEA, and Colorado (where Endrew resides) accepts IDEA funding. §1401(3)(A). Endrew is therefore entitled to the benefits of the Act, including a FAPE provided by the State.

Endrew attended school in respondent Douglas County School District from preschool through fourth grade. Each year, his IEP Team drafted an IEP addressed to his educa­tional and functional needs. By Endrew’s fourth grade year, however, his parents had become dissatisfied with his progress. Although Endrew displayed a number of strengths—his teachers described him as a humorous child with a “sweet disposition” who “show[ed] concern[] for friends”—he still “exhibited multiple behaviors that inhibited his ability to access learning in the classroom.” Supp. App. 182a; 798 F. 3d 1329, 1336 (CA10 2015).

Endrew would scream in class, climb over furniture and other students, and occasionally run away from school Id., at 1336. He was afflicted by severe fears of common­place things like flies, spills, and public restrooms. As Endrew’s parents saw it, his academic and functional progress had essentially stalled: Endrew’s IEPs largely carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress toward his aims. His parents be­lieved that only a thorough overhaul of the school district’s approach to Endrew’s behavioral problems could reverse the trend. But in April 2010, the school district presented Endrew’s parents with a proposed fifth grade IEP that was, in their view, pretty much the same as his past ones. So his parents removed Endrew from public school and enrolled him at Firefly Autism House, a private school that specializes in educating children with autism.

Endrew did much better at Firefly. The school devel­oped a “behavioral intervention plan” that identified En­drew’s most problematic behaviors and set out particular strategies for addressing them. See Supp. App. 198a– 201a. Firefly also added heft to Endrew’s academic goals. Within months, Endrew’s behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school.

Endrew’s parents contended that the final IEP proposed by the school district was not “reason­ably calculated to enable [Endrew] to receive educational benefits” and that Endrew had therefore been denied a FAPE. Rowley, 458 U. S., at 207. An Administrative Law Judge (ALJ) disagreed and denied relief.

Endrew’s parents sought review in Federal District Court. Giving “due weight” to the decision of the ALJ, the District Court affirmed. 2014 WL 4548439, *5 (D Colo., Sept. 15, 2014) (quoting Rowley, 458 U. S., at 206). The court acknowledged that Endrew’s performance under past IEPs “did not reveal immense educational growth.” 2014 WL 4548439, at *9. But it concluded that annual modifications to Endrew’s IEP objectives were “sufficient to show a pattern of, at the least, minimal progress.” Ibid. Because Endrew’s previous IEPs had enabled him to make this sort of progress, the court reasoned, his latest, similar was reasonably calculated to do the same thing. In the court’s view, that was all Rowley demanded. 2014 WL 4548439, at *9.

The Tenth Circuit affirmed. The Court of Appeals recited language from Rowley stating that the instruction and services furnished to children with disabilities must be calculated to confer “some educational benefit.” 798 F. 3d, at 1338 (quoting Rowley, 458

U. S., at 200; emphasis added by Tenth Circuit). The court noted that it had long interpreted this language to mean that a child’s IEP is adequate as long as it is calculated to confer an “educa­tional benefit [that is] merely . . . more than de minimis.” 798 F. 3d, at 1338. Applying this standard, the Tenth Circuit held that En­drew’s IEP had been “reasonably calculated to enable[him] to make some progress.” Id., at 1342 (internal quo­tation marks omitted). Accordingly, he had not been denied a FAPE.

The notable differences between Amy and Endrew include the following:

• Endrew is a student with a different disability than Amy—namely, autism, and the services provided in his IEP were not addressing his significant social, emotional, and behavioral needs such that he was not making progress in the regular classroom.
• Endrew’s IEP was not changing over time—from the District’s perspective because he was “failing to make meaningful progress toward his aims,” and from the Parents’ perspective—indicating that “only a thorough overhaul of the school district’s approach to Endrew’s behavioral problems could reverse the trend” of him not making progress.
• Endrew’s attendance at a “private school that specializes in educating children with autism” resulted in behavioral improvements and “a degree of academic progress”—based on IEPs that provided him “a behavioral intervention plan that identified Endrew’s most problematic behaviors and set out particular strategies for addressing them.”

Thus, Endrew was different than Amy because (a) his disability was largely behaviorally-related (and not addressed in the Rowley decision); (b) he was not making educational progress in the regular classroom (with the services and supports in his IEP); and (c) he needed more specialized and intensive interventions (in a substantially different special education placement and program).

The Endrew Supreme Court Decision

In its Endrew decision, the Supreme Court—in the context of Rowley and Congress’ motivation in passing the original IDEA—disagreed with the lower court rulings and interpretations of FAPE, as follows (with my underlines added):

The Court in Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.” 458 U. S., at 202.

Simi­larly, we find little significance in the Court’s language concerning the requirement that States provide instruc­tion calculated to “confer some educational benefit.” Id., at 200. The Court had no need to say anything more particular, since the (Rowley) case before it involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits. See id., at 202, 209–210. The Court’s principal concern was to correct what it viewed as the surprising rulings below: that the IDEA effectively empowers judges to elaborate federal common law of public education, and that a child performing better than most in her class had been denied a FAPE.

The Court was not concerned with precisely articu­lating a governing standard for closer cases. See id., at 202. And the statement that the Act did not “guarantee any particular level of education” simply reflects the unob­jectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id., at 192 (internal quotation marks omitted). No law could do that—for any child.

While Rowley declined to articulate an overarching standard to evaluate the adequacy of the education pro­vided under the Act, the decision and the statutory lan­guage point to a general approach: 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 “reasonably calculated” qualification reflects a recognition that crafting an appropriate program of educa­tion requires a prospective judgment by school officials. Id., at 207. . . Any review of an IEP must appreciate that the question is whether the IEP is reason­able, not whether the court regards it as ideal. Id., at 206–207.

The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. See §§1414(d)(1)(A)(i)(I)–(IV). This reflects the broad purpose of the IDEA, an “ambitious” piece of legislation enacted “in response to Congress’ perception that a major­ity of handicapped children in the United States ‘were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to “drop out.”’” Rowley, 458 U. S., at 179 (quoting H. R. Rep. No. 94–332, p. 2 (1975)).

A substan­tive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagna­tion that prompted Congress to act. . .

The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “[i]ndividualized education program.” §§1401(29), (14). . . As we observed in Rowley, the IDEA “requires participating States to educate a wide spectrum of handicapped children,” and “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” 458 U. S., at 202.

Rowley sheds light on what appropriate progress will look like in many cases. . . Accordingly, for a child fully integrated in the regular classroom, an IEP typically should, as Rowley put it, be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id., at 203–204. . .

Rowley had no need to provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level. That case concerned a young girl who was progressing smoothly through the regular curriculum. If that is not a reason­able prospect for a child, his 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 classroom. The goals may differ, but every child should have the chance to meet challenging objectives.

Of course, this describes a general standard, not a for­mula. But whatever else can be said about it, this stand­ard is markedly more demanding than the “merely more than de minimis” test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.

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. For 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.’” Rowley, 458 U. S., at 179. The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

Endrew’s parents argue that the Act goes even further. In their view, a 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.” Brief for Petitioner 40. But the majority rejected any such standard in clear terms. Id., at 198 (“The requirement that States provide ‘equal’ educational opportunities would . . . seem to present an entirely unworkable standard requiring impossible measurements and comparisons”).

Mindful that Congress (despite several intervening amendments to the IDEA) has not materially changed the statutory defi­nition of a FAPE since Rowley was decided, we decline to interpret the FAPE provision in a manner so plainly at odds with the Court’s analysis in that case. Compare §1401(18) (1976 ed.) with §1401(9) (2012 ed.).

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.” Rowley, 458 U. S., at 206.

At the same time, deference is based on the application of expertise and the exercise of judgment by school author­ities. The Act vests these officials with responsibility for decisions of critical importance to the life of a disabled child.

The judgment of the United States Court of Appeals for the Tenth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

So, What does this all Mean?

Conservatively, this decision means that the Court recognized that:

• In this case—given Endrew’s specific disability and needs—and in future cases, the lower court’s de minimus criterion for FAPE was not appropriate.

Indeed, the Court said that, “The goals may differ, but every child should have the chance to meet challenging objectives. Of course, this describes a general standard, not a for­mula. But whatever else can be said about it, this stand­ard is markedly more demanding than the “merely more than de minimis” test applied by the Tenth Circuit.                                                                                                          

This will be the Court’s primary legacy from this Case.

• FAPE must be determined in the context of how a student’s disability impacts the services and supports needed in an IEP (“in light of a child’s circumstances”).
• SWDs are not guaranteed to make educational progress.

If, as with Amy, they are educated in a regular classroom, they are “guaranteed” a (reasonable, not ideal) “IEP that is “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”

If, as with Endrew, a regular classroom education is not reasonable, the “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 classroom. The goals may differ, but every child should have the chance to meet challenging objectives.”

This language (especially the words, “appropriately ambitious”) will be another legacy from this Case.

•  The Court’s language (immediately above) is a “general standard, not a formula.”

Having considered only two cases, involving two different disabilities (of the 13 specified in IDEA), and two different intensity levels of individualized educational need, the Court does not believe it appropriate (or even possible) to identify set decision rules relative to district’s provision of FAPE.

• It affords “deference” to the expertise and judgement of the professionals in a school district—albeit in a partnership with the Parents—when writing an IEP, and it “vests these officials with responsibility for decisions of critical importance to the life of a disabled child.”

In fact, the ruling requotes Rowley’s warning to other courts to not mistake the Court’s decision to not provide decision rules on FAPE as “an invitation . . . to substitute their own notions of sound educational policy for those of the school authorities which they review.”

• IDEA’s provision of FAPE did not include “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.”

More broadly, two additional implications are suggested from the Case and ruling:

• When SWD cannot be fully educated in a general education classroom, the criterion for progress of “achiev(ing) passing marks and advance(ing) from grade to grade” may need to be adapted.
• When disability-related social, emotional, and behavioral concerns are present, the IEP needs to include (IDEA says “consider”) the (positive behavioral) interventions and supports—based on functional behavioral assessments—needed by the student to make “appropriate progress.”

Where Does the Story End?

Endrew is now 17 years old (remember, the Case began when he was in 4th to 5th grade).

While the Supreme Court found unanimously for the Parents, it remains to be seen (as the Court remanded the case back to the lower court “for further proceedings consistent with this opinion”) as to whether the school district will be ordered to pay for Endrew’s private schooling.

Relative to the principles involved in the Case, it is unlikely that we will see another FAPE case in the Supreme Court—perhaps, for another 35 years.

And yet, we do not know what the Court means by an “appropriately ambitious” educational program, or “progress appropriate in light of the child’s circumstances.” At the same time, some “boundaries” have been set, and some criteria to not use, relative to FAPE, are more clear.

Thus, we are “back in the classroom” . . . hoping that districts and schools have (a) good working relationships with parents and their SWDs; (b) the fully credentialed and trained personnel demonstrating the required professionalism; (c) the knowledge, skills, and resources to appropriately serve all of their different SWDs; and (d) the motivation and persistence to provide the services, supports, programs, and interventions required by IDEA and due to their students—as defined by the law, and clarified by the courts.

In my mind, while I do not question the professionalism of my colleagues, I AM concerned about their knowledge and skills on behalf of our students.

This is based on over 20 years as a Professor in two highly-ranked Colleges of Education, my 35+ years of consulting with schools in long-term relationships, the fact that our country has a serious shortage of special educators (such that districts are filling these positions with untrained, uncertified educators), my work as an expert witness on countless cases in state and federal court, and my concerns (shared in many previous Blogs) with the guidance coming from our federal and state Office of Special Education in our Departments of Education.

But, I will leave some of these concerns for the next two Blogs.

Summary

Clearly, the Endrew decision is a critical one. . . for approximately 12% to 15% of the students with disabilities in our schools, as well as for all educators . . . given that most of our SWDs are taught, at some point each day, in our general education classrooms.

Moreover, as in the title to this Blog, with the Endrew decision, our responsibilities to our SWDs just got easier . . . and harder.

We now have a more definitively sense of what FAPE needs to be, while many districts and schools still do not understand and/or have the multi-tiered systems of support (as required by the Elementary and Secondary Education Act) to truly provide FAPE.

I will try to assist with the “harder side” of this decision in the next two Blogs:

• In Part II of this Blog (in two weeks): We will discuss a service and support blueprint for academically struggling students and SWDs that can help schools organize their academic multi-tiered, “FAPE-proof” system.
• Finally, in Part III (in four weeks): We will discuss a service and support blueprint for behaviorally challenging students and SWDs that can help schools organize their social, emotional, behavioral multi-tiered, “FAPE-proof” system.

Meanwhile, I hope that the “microanalysis” of the recent Supreme Court Endrew decision has been illuminating for you. It is always interesting (and important) to read these decisions (as well as state and federal laws) in their original text. Only then are we able to see the inner connections and nuances that help us move the decisions into the informed and effective practice.

As always, I look forward to your comments. . . whether online or via e-mail (knoffprojectachieve@earthlink.net).

Remember: If I can help you in any area of the school and schooling process, I am always happy to provide a free one-hour consultation conference call to help you clarify your needs and directions on behalf of your students.

Best,
Howie