On March 22, 2017, the Supreme Court ruled in the case of Endrew F. v. Douglas County School District, for the first time since Rowley, on what a Free Appropriate Public Education (FAPE) under the IDEA requires. In Endrew F. , the Court held that to offer a FAPE, “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Background In the Case
In Endrew F., a student with autism was attending his home school district from preschool through fourth grade and was provided an IEP each year. The parents took the position that the student’s progress was slow and essentially stalled by fourth grade. As a result, the parents withdrew their child from public school and sent him to a specialized private school, where he made significant progress both behaviorally and academically. Parents filed for due process and sought tuition reimbursement for the private school.
In the due process hearing and the court appeals that followed, the first question to be reviewed was whether the IEP and programming offered by the district was appropriate under the IDEA. The lower courts, finding that the IEP offered was similar to those offered in the past which “did not reveal immense educational growth”, but “were sufficient to show a pattern of, at the least, minimal progress”, held that the IEP offered was appropriate.
On appeal, the Supreme Court was tasked with determining what standard applies to ruling on whether a FAPE was offered or not. In order to understand the potential impact of Endrew F., it is important to note that the various Courts of Appeals have reached different conclusions as to what a FAPE requires. The Tenth Circuit, which heard the Endrew F. case, has held for many years the FAPE standard means, “that a child’s IEP is adequate so long as it is calculated to confer ‘an educational benefit [that is] merely … more than de minimis.’”
However, the Third Circuit, which includes Pennsylvania, has explained and long held that “at a minimum, ‘[t]he IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.’ ” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010).
What the Supreme Court Said
The Court found that the FAPE standard requires a school to offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court further explained that “the question is whether an IEP is reasonable, not whether the court regards it as ideal.” (emphasis supplied). The Court goes on to explain that generally, “a FAPE will involve integration in the regular educational classroom and individualized special education calculated to achieve advancement from grade to grade”, a standard which appears lower than what has typically been used in Pennsylvania. However, the Court does caution in a footnote that passing classes may not always prove that a FAPE was provided.
The Court goes on to reject the more than de minimis standard applied by the Tenth Circuit as insufficient. However, the Court also rejected the standard proposed by the parent in Endrew F. of “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.’” Finally, the Court notes that the application of this standard need to be done on a case by case basis, but notes that some level of deference should be given to school officials.
As a result, for much of the country, which has been using the standard articulated by the Tenth Circuit, the bar has been set higher for what is required as part of a FAPE. However, is other parts of the country, specifically in Pennsylvania, the bar has not been set higher and possibly could be lower given that showing passage from grade to grade may be a showing of a provision of a FAPE, an approach that to date has seen some resistance here, and the change from meaningful to appropriate in terms of the level of progress that must be anticipated in developing the IEP.
Bottom Line for Schools
While the true impact of the Court’s decision in Endrew F. will not be known until the Courts and Hearing Officers start applying the same, at the very least the decision does not expand what a FAPE requires in Pennsylvania and arguably the decision may, as outlined above, lower what level progress will be required to show that a FAPE was provided to a student.
If you should have any questions, please contact an attorney from KingSpry’s Education Law Practice group or your legal counsel.
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.