U.S. Supreme Court Decides Substantive Standard for FAPE to Special Education Students
By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.
For many months now, those involved in the world of special education have been patiently awaiting the issuance of one of the most important legal decisions in special education in the past 35 years, since the seminal Rowley decision was handed down in 1982. On March 22, 2017, the United States Supreme Court decided the case of Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), in which it confronted the difficult issue of the appropriate substantive standard for determining whether special education students have been provided with sufficient educational benefits to meet the requirement of providing a “free and appropriate public education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has long provided that each eligible student is entitled to a FAPE through an individualized education program (“IEP”), developed in accordance with the Act’s procedures, that sets forth special education and related services tailored to meet the unique needs of the particular child.
Writing for a unanimous Court, Chief Justice John Roberts addressed the question of “how much benefit” is required to satisfy FAPE, but the opinion provided scant clarification concerning the new standard for students whose disabilities do not permit them to be educated in a general education setting. The Court held: “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.” (emphasis added).
In so doing, the Court rejected the Tenth Circuit’s interpretation of the Rowley decision that called for “some educational benefit” and interpreted the standard as “merely more than de minimus” educational benefit. The Court declined to establish an inflexible “bright-line” standard, but characterized its articulation as “markedly more demanding” that the “more than de minimus” test. At the same time, the justices also rejected the high standard advocated by the parents in the case – that an IEP must aim to provide “opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”
In offering further clarification of the standard, the Court focused in part on the IDEA’s mandate to educate children with special needs in the general education classroom whenever possible. The Court clarified that, “for a child fully integrated into the regular classroom, an IEP typically should . . . be ‘reasonably calculated to enable the child to achieve passing marks and advance from grade to grade’” and would “typically” mean providing instruction reasonably calculated to permit advancement through the general curriculum.
For more severely disabled children for whom this is not a reasonable prospect, the Court offered only limited guidance. The Court stated that, while the “IEP need not aim for grade-level advancement,” the program proposed for the child “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 education classroom. The goals may differ, but every child should have the chance to meet challenging objectives.”
The Court acknowledged that the “reasonably calculated” component recognizes that crafting an appropriate educational program requires a prospective judgment by school officials. Although it crafted its standard to intentionally focus on student progress, the Court observed that “the IDEA cannot and does not promise ‘any particular educational outcome.’” It added: “No law could do that – for any child.” While deference should continue to be afforded school officials where their decisions are based on the exercise of educational judgment and expertise, a “reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”
By its own admission, the Court acknowledged that its description is “a general standard, not a formula,” and should not be interpreted as an inflexible rule. Up until now, the operative standard in New Jersey and Pennsylvania, as articulated by the Third Circuit, was that an IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits in light of his or her intellectual potential.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010). In Endrew F., the Supreme Court has inserted consideration of “the child’s circumstances” into the equation of determining the level of educational benefit required to be offered, while offering little insight into the meaning of that phrase. This element of the standard will no doubt be filled in through subsequent decisions of the lower federal courts.
While some might characterize the ruling as a “wash” in that the Court both declined to adopt the high bar urged by the parents of providing “substantially equal opportunities,” but also refused to accept the low bar of the Tenth Circuit’s “merely more than de minimus” standard, it is important not to equate the two. In adopting a standard which it characterized as “markedly more demanding” than the “more than de minimus” reading of Rowley, the Court appears to have raised the bar at least somewhat from the prior level. It would appear that the “basic floor of educational opportunity” that must be made available to special education students under the IDEA may have been raised just a few feet.
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