Thursday, March 23, 2017

Supreme Court Requires Opportunity for Special Education Students to Make Progress, Not Just Receive Minimal Benefits by Mark Weber

On March 22, the Supreme Court decided Endrew F. v. Douglas County School District RE-1. The Court overturned a lower court decision that had applied a “merely more than de minimis” test to the duty to provide appropriate education to children with disabilities in public schools. The case involved a child with autism whose parents placed him in a private school because they were dissatisfied with the progress he was making under his fourth grade individualized education program (IEP) and thought he was unlikely to achieve much more under a similar IEP proposed for fifth grade. He continued to have severe behavior problems in his public school setting, including screaming in class, climbing over furniture and classmates, and running away, and manifested extreme fear of commonplace aspects of his environment. His parents believed his academic progress had stalled. In the private school, he made rapid progress with a behavioral intervention plan, and the improved behavior allowed him to make academic gains. His parents sought tuition reimbursement, as permitted under the Individuals with Disabilities Education Act (IDEA), which requires that states receiving federal funds for special education guarantee each child with a disability a free, appropriate public education. The administrative law judge, the district court, and the Tenth Circuit all ruled against the parents. The Tenth Circuit interpreted the Supreme Court’s sole case on the appropriate education standard, Board of Education v. Rowley, 458 U.S. 176 (1982), to require simply that the child be offered some educational benefit, interpreted as merely more than de minimis.

The Supreme Court vacated and remanded. In a unanimous opinion by Chief Justice Roberts, the Court read Rowley as steering a middle course between no enforceable appropriate education standard at all and the standard endorsed by the lower courts in that case, an education affording the child an opportunity to achieve her full potential commensurate with the opportunity provided children without disabilities. The Endrew Court stressed Rowley’s language requiring a substantively adequate education as well its proviso that its analysis was limited to the facts of that case and did not establish a universal test. Endrew said that Rowley pointed to a rule that the school has to offer an IEP reasonably calculated to enable the child to make progress in light of the child’s circumstances. Though this focuses on the reasonable, not the ideal, the standard keys into student progress; moreover, the program must be individualized to afford progress given the child’s unique needs. The Court reaffirmed Rowley's conclusion that for a child being educated in the general education classroom, passing marks and advancement from grade to grade through the general curriculum will ordinarily satisfy the IDEA standard (though the Court cautioned in a footnote that “This guidance should not be interpreted as an inflexible rule,” to be applied automatically). But it rejected the standard of the Tenth Circuit and courts like it that for children not in the regular classroom, offering merely de minimis progress is enough.

The Court rejected the parents’ position that in light of amendments to IDEA since Rowley, children are entitled to an education that affords opportunities to attain self-sufficiency and contribute to society substantially equal to opportunities afforded children without disabilities. The Court did not see the amendments to the Act over the years as adopting the proportional maximization standard that Rowley rejected. The Court also cited a need for deference to school authorities’ educational judgment. Nevertheless, parents, their advocates, and many other observers are likely to be pleased that the Court has rejected the low standard applied by the Tenth Circuit and many, many other courts and clarified that the law imposes a more demanding standard oriented towards the child’s progress and the child’s individual needs.

The decision is found at

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