On March 22, 2017, Chief Justice Roberts announced the High Court’s decision in Endrew F. v. Douglas County School District RE-1.
In Endrew F., the High Court attempted to define what constitutes a “free appropriate public education” (FAPE) in the Individuals with Disabilities Act (IDEA). Commentators have lauded the decision as mandating that Individualized Education Programs (IEPs) do not deliver FAPE unless the IEP allows the student with a disability to make “meaningful progress.” Another commentator expressed the opinion that if Endrew F. has any substantive impact, the decision will be a financial disaster for school districts. Unfortunately for both parents and school districts, lower courts are free to interpret Endrew F. as they see fit. What is the actual message of the Endrew F. decision and how can school districts afford that message?
A word search of the Endrew F. decision indicates that the term “progress” appears forty-five times. In none of those appearances is the word “progress” preceded by the word “meaningful.” On the contrary, the word “meaningful” appears only once in the opinion, and the adverb “meaningfully” also appears only once. In both cases, the majority opinion was describing the feelings expressed by Endrew’s parents, who alleged in their arguments that their son was not making “meaningful progress,” nor was he “progressing meaningfully” under his current IEP in his home school.
The Endrew F. majority did not rule that a special education student must make meaningful progress in order to have received a FAPE. Throughout the decision, what the majority actually required was that the student’s progress must be “appropriate in light of the child’s circumstances.” Of course, defining “free appropriate public education” in terms of the word “appropriate” is a circular definition and essentially unhelpful.
In addition, the High Court’s ruling makes no mention of how school districts will deal with the costs involved with delivering services “appropriate in light of the child’s circumstances.”
At the present time, schools are being asked to provide FAPE for increasing numbers of children with severe impediments to academic and functional learning, such as autism and severe (and possibly multiple) physical and emotional handicaps.
The costs of providing FAPE for these severely disabled children are not adequately reimbursed by the federal government under IDEA. The federal government never made good on its promise to provide 40% of special education expenditures to school districts. At the present time, the federal government covers only approximately 16% of the costs of providing special education services under IDEA. Conflict resolution costs for districts have reached $90 million dollars per year, much of that expenditure occasioned by special education disagreements.
These costs come at a time when school budgets are already tight. Between 2008 and 2014, thirty-five states decreased per pupil funding. This negatively impacts all children, special education and regular education students.
What special education in America’s public schools and what IDEA and IDEA-like statutes need is a kind of “tort reform” provision, a limit on reimbursement for tuition and other services for any child with any disabling condition. For example, for a child on the autism spectrum who is privately placed in a special school for autistic students, perhaps a school that provides Applied Behavior Analysis (ABA) therapy, costs for tuition may rise above $50,000 per year.
When parents assert that unilateral private placement was necessary because their child’s public school IEP was inadequate or inappropriate, they sue the school district to reimburse them for tuition. A “disabilities reimbursement reform” could statutorily cap reimbursement due to the parents at a given percentage of the tuition at any unilateral private placement the court agrees is necessary and appropriate. For different disabilities, the cap could be a different percentage of the tuition cost. A disability reimbursement scheme might also be based on parent income, as is the school lunch program.
Such a reimbursement cap may even discourage parents from bringing suits for tuition reimbursement, and may encourage parents to cooperate more fully with the school district’s special education team. A disabilities reimbursement cap would enable a school district to control its budget more effectively. Each state could establish different percentage caps, each depending on the average cost of per pupil regular education placement. Parents of any child with a disability would have to pay their share of the cost of unilateral private placement.
Bottom Line for Schools
The High Court in Endrew F. did make clear that an IEP that provides only “merely more than de minimis” benefit does not amount to a FAPE. Courts of Appeals that have established the “merely more than de minimis” standard will have to disavow that standard. However, FAPE does not require an IEP that provides an educational program equal to that of non-disabled peers. The two limits encompass a significant spectrum of individual circumstances, disabilities, and possibilities for appropriately ambitious goals for students. If lower courts interpret Endrew F. more liberally in fear of falling short of a misinterpreted standard enunciated there, costs for school districts could swamp their budgets for regular education students. A solution is needed.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.
