Third Circuit finds Endrew F. Does Not Change FAPE Standard | KingSpry

Third Circuit finds Endrew F. Does Not Change FAPE Standard, Offers Other Instructive Guidance to School Entities

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Posted on October 18th, 2018
by Timothy E. Gilsbach

The Third Circuit Court of Appeals has held in the case of K.D. v. Downingtown Area School District, No. 17-3065 (3d Cir., Sept. 18, 2018), that the standard for a FAPE provided by the Supreme Court in Endrew F., heralded as heightening the FAPE standard by some, is in fact the same FAPE standard applied by the Third Circuit for quite some time, meaning school entities obligations in the Third Circuit remain unchanged under Endrew F.

In addition, the Court provides some helpful guidance to school entities in meeting their FAPE obligations.

Background in the Case

In K.D., parents filed for due process asserting that their child had been denied a FAPE and sought compensatory education and tuition reimbursement.

The evidence in this case showed that the student made some progress over the school years at issue and that when new concerns arose, the district reviewed and changed its approach.  The hearing officer applied pre-Endrew F. case law to find that the district had provided the student with a FAPE. Further, the hearing officer found that the school district had provided a clear explanation of why it provided the programs that it did to the student and why they believed the programs offered would meet the student’s needs.

On appeal to the district court, it was held that Endrew F. was essentially the same standard as the Third Circuit Court of Appeals had applied to determine if a FAPE had been provided and found that a FAPE was provided in this case.  The parents appealed to the Third Circuit Court of Appeals, which agreed with the lower court and the hearing officer.


The Third Circuit explains, as our office predicted, that the standard articulated by the Supreme Court in Endrew F. for what is required for a FAPE, namely “an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”, mirrors the Third Circuit’s prior cases finding a FAPE requires a program “reasonable calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential and individual abilities.”

Next, the Third Circuit finds that the programming offer to this student was a FAPE noting that there is a reasonableness standard that must be expected in terms of progress and that for a child who is not fully integrated or mainstreamed, depending upon the Student’s needs, fragmented progress or progress that does not close the gap between the student’s functioning with his or her typical peers may not be required, although schools should be cautioned that this is likely to be a case by case assessment.  In addition, the Third Circuit noted “[w]hen schools use their expertise to address each child’s distinct educational needs, we must give their judgments appropriate deference.”

Finally, the Third Circuit finds that the school district acted appropriately in that when progress was less than expected or concerns were met, the IEP team met and revised its approach.

Bottom Line for Schools

The K.D. case repeats what has already been said by the lower courts and undercuts any suggestion that the Endrew F. case heighted the FAPE standard in the Third Circuit.

As a result, school entities should continue to develop programs that will allow students to make meaningful progress.  In addition, this standard of progress must be based upon what is reasonable for the student given his or her abilities, but should be able to provide a rational explanation of why the selected approach has been chosen and why the school believes this would be appropriate.

Lastly, where there are concerns or progress is not what is hoped for school entities are well advised to go back to the drawing board and determine if a change to something else is appropriate, but should ensure that it is able to explain why the new proposed program is likely to be successful when the old one was not.        

If your school has a question, please contact your legal counsel or one of the attorneys at KingSpry.


This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.