KingSpry High Court to Revisit Standard of FAPE

Revisiting FAPE, High Court Could Significantly Lower the Standard of Required Educational Benefit

Posted on October 20th, 2016
by Dr. Kathleen Conn

On September 29, 2016 the U.S. Supreme Court agreed to hear the case of Endrew F. v. Douglas County School District RE-1.

The Tenth Circuit Court of Appeals had ruled in favor of the school district that Endrew F.’s Individualized Educational Plan (IEP) was designed to provide the autistic youngster with a free appropriate public education (FAPE), affirming the decisions of the Hearing Officer and the district court. Endrew’s parents disagreed and unilaterally placed their son in a private school, and were suing the district for reimbursement of the private school tuition. The question presented to the High Court involved the substantive and functional meaning of the phrase FAPE as it had been used in the Individuals with Disabilities Education Act (IDEA).

The question of what constitutes a FAPE has been widely argued in the various Circuit Courts of Appeals since the High Court’s 1982 decision in Hendrick Hudson School District Board of Education v. Rowley. The Rowley Court was called to decide what level of special education and related services would constitute a FAPE for the hearing impaired plaintiff Amy Rowley.

By all accounts, Amy was a bright happy and talented child who read lips very well and succeeded in passing from grade to grade in her elementary school. However, her parents argued that because of her handicap, Amy was not performing up to her maximum potential and that, to receive a FAPE commensurate with her ability, she needed the services of a qualified sign language interpreter in all her classes.

The district court and Court of Appeals had ruled for the parents, but the Supreme Court reversed. Calling the definition of FAPE in the IDEA statute “cryptic rather than . . . comprehensive,” the Rowley Court looked to the legislative intent and history of IDEA.

Noting that IDEA was passed when it became apparent that millions of handicapped children were not receiving any public education, and others were receiving inappropriate educational instruction, the Court stated that, “Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access [to public education] meaningful.”

The Court also stated that, “Certainly the language of the statute contains no requirement . . . that States maximize the potential of handicapped children . . . .” The Rowley court found no Congressional intent to achieve strict equality of opportunity or services between handicapped and non-handicapped children.

The decision of the High Court was 6-3, with Justice White writing a dissent, in which Justices Brennan and Marshall joined, also based on Congressional intent and legislative history.

Quoting the Senate Report and other parts of the legislative record, the dissenters argued that the statute itself promised a “full educational opportunity to all handicapped children” and that IDEA’s legislative history supported the conclusion that the Act’s intent was to give handicapped children the same educational opportunity as that given to non-handicapped children. The debate had begun.

The August 2016 Brief for the United States as amicus curiae states that the question presented to the Court is “whether the ‘educational benefit’ provided by a school district must be ‘merely . . . more than de minimis’ in order to satisfy the FAPE requirement.” The Brief strongly urged the Court to grant certiorari to the Endrew F. case to resolve the glaring inconsistencies regarding FAPE requirements in the various Circuit Courts of Appeals.

The Endrew F. district court and the Tenth Circuit court had relied on Rowley to hold that FAPE required only that the IEP provide “some educational benefit” for the handicapped child, i.e., merely more than de minimis. Stressing the language of Rowley that guaranteeing access of a handicapped child to public education must be meaningful access, the Brief noted that not only the Tenth Circuit, but also the Second, Fourth, Seventh, Eighth and Eleventh Circuits Courts of Appeals, had based their interpretation of the FAPE requirement on the “merely more than de minimis” standard.

While noting that the First and Fifth Circuits have stated that FAPE requires more than a de minimis or trivial benefit, that is, a meaningful access, the Brief continued, pointing to the “more robust” standard adopted by the Third and Sixth Circuits. The U.S Brief noted that the Third Circuit, e.g., in Ridgewood Board of Education v. N.E., went so far as to hold that an IEP must provide “significant learning and meaningful benefit,” and that “the benefit must be gauged in relation to a child’s potential.”

The Sixth Circuit had agreed with the Third Circuit interpretation, stating in Deal v. Hamilton County Board of Education, that FAPE required more than a trivial educational benefit, and that the “benefit must be gauged in relation to a child’s potential.”

The U.S. Brief noted that, therefore, the split of authority in the Circuit Courts is not merely over the adjectives “some” and “meaningful,” but between the courts that (1) hold that the IDEA benefit needs to be simply more than trivial or de minimis, and the Courts (2) “that unambiguously reject that test in favor of a more robust standard.”

On the other hand, the Supplemental Brief for the Respondent, the Douglas County School District RE-1used many of the same Courts of Appeals decisions as authority as the U.S. Brief used, but came to the conclusion that the split among the Circuits was “shallow and undeveloped” and that the Tenth Circuit decision was correct. Noting first the extensive procedural requirements of IDEA, the Brief for Respondents states that the only substantive standard to which IDEA subjects the States is to provide educational access reasonably calculated to confer more than a de minimis educational benefit.

The Respondents’ Brief criticizes the Third Circuit interpretation of the FAPE requirement as failing to be outcome-determinative because the Third Circuit has never clearly explained what distinguishes “meaningful” from “more than de minimis.”

Arguing federalism, the Respondents focus on the access question, and that Congress did not intend IDEA to usurp the power of the States over education. The Respondents note that since IDEA was passed pursuant to Congressional spending power, States cannot knowingly accept unclear conditions, and that, “It is hard to imagine how States can be expected to divine a standard that not even the Federal Government can spell out.”

Bottom Line for Schools

Clearly, the battle lines are drawn. The Court has granted certiorari to Endrew F., and some observers opine that the Court will handle the case early on in its term. The High Court will certainly be busy with education matters this coming term; the Court has also signaled it may take on the transgender access to school bathrooms and single-sex facilities.

It is hard to speculate how the Court will rule in either case. Both issues are highly fact-intensive, and setting uniform legal rules in fact-based scenarios often leads to further litigation.  A change in the standard for FAPE in the Third Circuit from “meaningful educational benefit” to the Tenth Circuit’s “some educational benefit” would certainly seem to make challenges to FAPE more difficult for parents.  Educators will be closely watching the Court this term!

If you should have any questions, please contact your legal counsel or an attorney at KingSpry.

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.