Who Won Endrew F?

I got an email from a reporter last week asking a fascinating question: did parents or school districts win in the Endrew F decision by the US Supreme Court? You can read the entire high court decision here. Also our previous posts concerning the case are available here and here.

The reporter noted that it seems that parent groups are hailing the decision as a victory for them while at the same time school district groups are saying that they are already providing educational benefit at the level required by this decision. You can see the apparent discrepancy in this story by PBS on whether the decision is a game-changer for special ed.

So who won…well the answer is not very clear. I’m going to give you my analysis, but I’d love to hear your opinion as well. Who won and why?

For the parties to the actual case, the matter was remanded to the Tenth Circuit. This means that there will be further court proceedings before we know who prevailed in this case.

For purposes of special education law, however, the answer is a little foggy. School districts clearly won to the extent that the Supremes did not overturn Rowley. In fact the decision does not even mention the battle between some benefit vs. meaningful benefit that the earlier pleadings and argument seemed to involve. So Rowley is still good law.

On the other hand, parents clearly won to the extent that the high court required more benefit than the more than trivial or de minimis standard used by the Tenth Circuit Court of Appeals. To provide FAPE, a school district has to do better than that. The unanimous Supreme Court held that the standard is “markedly more demanding” than the standard used below.

However, school districts clearly won to the extent that the court rejected the potential maximizing standard that was previously rejected by Rowley. The Court refused to require an IEP that lead to self-sufficiency, academic success, and the ability to contribute to society. The Court rejected the argument that opportunity equal to that received by non-disabled students is necessary. In this regard, the Court mentioned that the Congress had amended IDEA a number of times since 1982 and yet never overruled Rowley so that it was good law still. Potential maximization arguments that had been rejected in Rowley continue to be rejected. So an IEP must be reasonable not ideal.

Nonetheless, parents clearly won to the extent that the court made FAPE turn on the individual circumstances of the child. The Court stated, “The goals may differ, but every child should have the chance to meet challenging objectives…” Rather than develop a bright line rule, the Court adopted an individualized fact specific approach.

OK so everybody won. Or at least you can see why they all believe that they won.

The real answer to the question will turn on how hearing officers and courts apply the new standard to actual fact patterns.  The new standard requires that an IEP must be reasonable given the unique circumstances of the child with a disability. In other words, the IEP must be reasonably calculated to enable a child to make progress in light of his own individual circumstances. Students fully integrated in general education classrooms will be expected to make passing grades and advance from grade to grade. Other special education students may not need to make grade level success to receive FAPE as the standard for them is somewhat lower. 

Hearing officers and courts will follow the Supreme Court’s instruction and apply the revised standard on a case by case basis. They will engage in a fact-specific analysis involving the unique circumstances of the child with a disability. To some extent, what is “reasonable” is in the eye of the beholder.

So how will hearing officers and courts apply the newly clarified FAPE standard? Stay tuned.


A Supreme Disappointment for Students with Disabilities

The Supreme Court held unanimously last week — in its most momentous ruling on special education in over three decades — that the standard for services owed to students with disabilities under federal law is higher than “merely more than de minimis.”

Lower courts had been divided, with some saying services must be “meaningful” or “significant,” and others saying “merely more than de minimis” — as in a step above trivial.

The Supreme Court decision to raise the bar was generally hailed as a victory for students with disabilities. But don’t believe it. Under the de minimis standard, there was almost nowhere to go but up, and the court went up only a very little. An 8-0 vote by a court that is usually sharply divided is a sign that the decision may lack clarity or bite.

Chief Justice John G. Roberts Jr., writing for the court, stated that the standard is whether the services are “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” That means more than de minimis, but how much more? The vague language was deliberate to allow, Chief Justice Roberts reasoned, “deference” to the expertise and judgment of school authorities.

But this reasoning is deeply flawed. The court does not understand the extent to which school systems nationwide fail to recognize that the great majority of students with disabilities are capable of achieving much higher levels of academic achievement than they do.

Low expectations are at the root of the failures of special education. Former U.S. Secretary of Education Arne Duncan concluded: “No belief is more damaging in education than the misperception that children with disabilities cannot really and shouldn’t be challenged to reach the same high standards as all children.”

Federal regulations specify that students who are not significantly cognitively disabled should receive services that enable them to meet state standards. This regulatory standard is based on research. The National Center on Educational Outcomes, the leading research organization on accountability for the achievement of students with disabilities has determined that “the vast majority of special education students (80-85 percent) can meet the same achievement standards as other students if they are given specially designed instruction, appropriate access, supports and accommodations as required [by federal law].”

Most educators don’t get it, and the Supreme Court didn’t either. The court decision did not preclude schools from providing services reasonably calculated to enable students to meet grade-level standards. But it simply left them too much room to continue their low expectations and lack of appropriate services.

It is now up to parents and advocates to pressure school systems to raise their expertise and judgment about the potential of students in special education. The expertise must particularly zero in on how to better teach reading. About 90 percent of all students with disabilities who do not have severe cognitive limitations are found eligible for special education because of big deficiencies in reading.


Supreme Court Decision in Endrew F. Focuses on Mainstreaming, Progress, and Designing IEPs to Meet Child’s ‘Unique Needs’

What a great day! On March 22, 2017, the U.S. Supreme Court issued another unanimous ruling in favor of children with special needs and their parents.

The Court emphasized that full inclusion is the primary standard, with the “child progressing smoothly through the regular curriculum.”

The Court held that “merely more than de minimis” progress is not enough. Chief Justice Roberts wrote, “…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.”

If a child is not fully included, school officials must look at the child’s unique needs before developing an IEP that is “pursuing academic and functional advancement.”

The decision in Endrew F. is a great victory for those who advocate children being fully integrated in regular education classrooms.

Per the statute – unique needs = specialized instruction.

Read Pete Wright’s analysis of the Supreme Court decision in Endrew v. Douglas County.

Return to Data Collection

What do you know about your child’s unique needs? You will get information about your child’s unique needs from test data that measures your child’s strengths, weaknesses, and educational needs.

How do you measure the educational benefit? You look at changes in the test data over time.

  • Are your child’s standard scores, percentile ranks going up over time or going down?
  • Is your child regressing? Is he being damaged by an inappropriate educational program?
  • Is your child making progress and showing educational benefit?

We hope that the decision in Endrew F. will lead to a return to data collection and analysis of the data over time, instead of relying on subjective perceptions about a child’s progress.

Schools used to rely on data and objective measures of progress, before the 1991 decision in Shannon Carter’s case. After Carter, school districts stopped using objective tests to measure progress and embraced subjective “teacher observations.”

This is a great day! In Endrew F., the Court focused on educational progress, growth, and developing IEPs to meet the child’s unique needs, while also re-emphasizing the goal of integration or inclusion in regular education.

Congratulations to Endrew F’s parents and their attorney, Jack Robinson, Esq. of Spies, Powers & Robinson, Denver, CO. This was such a long battle. You lost at every level, until the Supreme Court agreed to hear your case, then ruled in your favor.


Supreme Court Clarifies FAPE Standard

The United States Supreme Court issued a big decision on Wednesday. The high court clarified what FAPE means and how courts should apply the FAPE requirement.

The decision in Endrew F by Joseph F v. Douglas County School District RE-1, # 15-827,  580 U.S. (2017) vacates and remands a previous decision by the Tenth Circuit.

This was a unanimous decision, the second special education unanimous decision by the Supreme Court this year. Although this opinion clarifies how courts should apply the FAPE standard, the court’s decision does not overrule the seminal Rowley decision. Instead, it clarifies Rowley and explains how courts have not been correctly interpreting the decision.

(*)Original article published by Jim Gerl, http://specialeducationlawblog.blogspot.com/

General analysis

The new gold standard for FAPE is: to meet its obligations under IDEA, a school district must offer an IEP reasonably calculated to enable a child to make progress in light of the child’s circumstances. The court described this standard is a fact-intensive exercise. The question is what is reasonable not what is ideal.

The Supreme Court said today that the Rowley decision sheds light on what appropriate progress will look like in many cases- where a child is fully integrated in regular education classes that the IEP must be reasonably calculated to make progress and to make passing marks and advance from grade to grade. The court noted that the facts of Rowley fit this analysis. In footnote # 2, the court reiterated the language in Rowley that it was specifically declining to hold that every child advancing from grade to grade is automatically receiving FAPE. The Court also noted that the fact that the new standard is not a bright line is not in any way a suggestion that a court substitute its own notion of sound educational policy for that of professional educators.

But where a child is not fully integrated in regular education classes, the IEP need not aim for grade level advancement. Instead, the IEP must be appropriately ambitious in light of the child’s circumstances. The goals may differ, but every child should have the chance to meet challenging objectives.

The clarification, according to the Court, is a standard not a formula- but in any event it is “…markedly more demanding than the ‘merely more than de Minimis’ (minimal things) 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.”

The Supreme Court decision also flatly rejected the parent’s argument that FAPE requires  opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.  The court here noted that Congress has reauthorized IDEA a number of times without overruling the Rowley decision which had rejected a similar potential-maximizing FAPE standard, so it would not adopt the parent’s proposed FAPE standard.

The court stated: “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.”

For more information, you can read the entire supreme court decision here.


(*) This articles was edited by PRN to fit its many formats specifications and reader’s needs. Please, visit the original source if you would like to read the full original article.