Endrew F. v. Douglas County School District (2017): Implications for Educating Students With Emotional and Behavioral Disorders

Behavior Problems and FAPE

When Congress reauthorized the IDEA in 2004, language was added regarding the importance of IEP teams assessing, programming, and monitoring a student’s functional needs. It did so in the following ways. First, when conducting the evaluation of a student’s needs, evaluators were directed to “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information” (IDEA, 20 U.S.C. § 1414 [b][2][A]). Accordingly, an assessment should examine any functional needs that a student may have. Second, the initial section of the IEP, which was formerly the Present Levels of Performance, was renamed the “Present Levels of Academic Achievement and Functional Performance” (PLAAFP; IDEA, 20 U.S.C. § 1414 [d][1][A][i][I]). In effect, the PLAAFP statement creates a baseline by which a student’s IEP team designs the student’s educational program and measures his or her progress. Third, the measurable annual goals now included “academic and functional goals” (IDEA, 20 U.S.C. § 1414 [d][1][A][i][IV]). The measurable annual goals are a student’s IEP team’s estimation of the academic and functional progress the student will make in 1 year, and are also a means by which the team can determine the amount of progress the student has made during the year. Consequently, the change in the IDEA’s language emphasizes the importance of assessing, programming, and monitoring a student’s functional needs.

Although Congress did not explicitly define the term “functional” in the IDEA, officials in the U.S. Department of Education noted that the term was

generally used to refer to skills or activities that are not considered academic or related to a child’s academic achievement. Instead, “functional” is often used in the context of routine activities of everyday living . . . the range of functional skills is as varied as the individual needs of children with disabilities. (Federal Register, 46661, 2006)

Thus, the term functional includes behavior excesses and deficits, which must be addressed in a student’s IEP if they interfere with a student’s independence and functioning. In addition, the IDEA requires that if a student’s behavior “impedes the child’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports . . . to address that behavior” (IDEA, 20 U.S.C. § 1414 [d][3][B][i]).

Clearly, if a student has serious behavior problems that interfere with his or her functioning, those problems must be assessed, programmed for, and monitored to provide FAPE. These important issues were directly addressed in the U.S. Supreme Court’s ruling in Endrew. Before examining the Supreme Court’s decision, however, I provide brief background information on events that led to this seminal ruling.

The Circuit Courts Disagree on Educational Benefit

Although the Supreme Court’s Rowley test seemed to clarify the procedural and substantive aspects of FAPE, courts struggled in applying the substantive component of the test in FAPE cases. Specifically, courts had difficulty determining what exactly constituted educational benefit for students with disabilities that would be sufficient for a court to determine that a school district had provided a FAPE. The U.S. Circuit Courts of Appeals, the level of court immediately below the U.S. Supreme Court, for the various circuits were divided on the issue of educational benefit. Although all the circuit courts had agreed with the overall Rowley standard that an IEP must be reasonably calculated to provide educational benefit, the courts differed on the amount of educational benefit that would satisfy the High Court’s FAPE requirement.

At least six circuit courts of appeals, the second, fourth, seventh, eighth, tenth, and eleventh circuit courts, had adopted some variation of a some or de minimis degree of educational benefit as being sufficient to confer a FAPE. The de minimis standard required that the educational benefit provided by a school district had only to be of minimal importance or just barely more than trivial (Yell & Bateman, 2017). Two other circuit courts, the third and the sixth, adopted a meaningful benefit standard, which was notably higher than the de minimis standard. The first and fifth circuits held that the FAPE standards required more than simply a trivial or de minimis educational benefit while noting that access had to be meaningful. Nonetheless, it seemed that in prior rulings, neither circuit court required much more than the lower standard to satisfy the FAPE requirement. The U.S. Court of Appeals for the Ninth Circuit was internally divided with the panels disagreeing with each other over the correct educational benefit standard. The U.S. Solicitor General (2016) called this split among the courts “an entrenched and acknowledged circuit conflict” (p. 8). This split made it more likely that the U.S. Supreme Court would eventually hear another FAPE case to interpret the educational benefit standard set in Rowley. This opportunity presented itself in an appeal of the U.S. Court of Appeals for the Tenth Circuit Court’s ruling in Endrew F. v Douglas County School District (2015). Because this case involved the definition of FAPE and the plaintiff was a student in special education who exhibited serious behavior problems, the decision has important implications for the field of special education for students with EBD.

Due Process Hearing and Lower Courts

The case involved Drew, a student in the fourth grade in the Douglas County School District in Colorado. Drew was a student with an autism spectrum disorder and attention deficit hyperactivity disorder, who was in a special education program throughout his early school years. When Drew was in fourth grade, his parents rejected his IEP because Drew had failed to progress academically and his behaviors had worsened. Unfortunately, his IEP had not been substantially changed from previous IEPs; many of his goals from old IEPs had simply been carried over to his new IEP. Frustrated with Drew’s IEP, his parents placed him in a private school, the Firefly Autism House. They noticed a dramatic difference in his behavior and achievement while he was enrolled in the private school. Nonetheless, they wanted their son to be educated in a public school, so they approached the Douglas County School District about re-enrolling Drew in his home school and developing a new IEP based on his successful academic and behavioral programming at the Firefly Autism House. Unfortunately, Drew’s parents believed the IEP that Drew’s IEP team developed was not an improvement over the previous IEP they had rejected. Therefore, Drew’s parents placed him back at the Firefly Autism House and filed for a due process hearing in which they asserted that because the Douglas County School District had failed to provide Drew with a FAPE, the district should be responsible for reimbursing them for tuition and related expenses.

An administrative law judge (ALJ), using the low educational benefit standard of the Tenth Circuit Court, which has jurisdiction over the state of Colorado, found that the Douglas County School District had provided Drew with a FAPE and denied the request for tuition reimbursement. Drew’s parents appealed to the U.S. District Court for the District of Colorado, which also ruled for the school district. The student’s parents then filed an appeal with the U.S. Court of Appeals for the Tenth Circuit, alleging that the school district had committed procedural and substantive violations of the IDEA. Among the reasons the parents believed that the Douglas County School District failed to provide a FAPE to Drew were that school personnel failed to (a) conduct a proper assessment of Drew’s problem behavior and (b) consider Drew’s escalating problem behavior when fashioning his IEP. In fact, it was Drew’s increasing problem behaviors that convinced his parents that the private school setting was necessary.

The U.S. Court of Appeals for the Tenth Circuit, also using the low standard of educational benefit, found that the ALJ and District Court had correctly ruled for the school district and upheld the ALJ and District Court’s decisions. According to the circuit court, despite the case being “without question a close call” (Endrew 2017, p. 23), the low educational benefit standard, which the circuit court described as being “merely be more than de minimis” (Endrew, 2017, p. 17), led to a finding that the Douglas County School District had provided a FAPE to Drew.

With respect to Drew’s parents’ contention that the school district had not assessed or programmed appropriately for Drew’s escalating problem behavior, the circuit court held that

even though the record establishes that Drew is “a child whose behavior impedes the child’s learning or that of others” all that was required by the (IDEA) is that the District “consider” behavioral interventions. The record is filled with examples of the District’s consideration of Drew’s behavioral issues. Thus, the District complied with federal law. (Endrew, 2015, p. 15)

The circuit court cited Zirkel (2011a), who wrote that the pertinent terms in the IDEA sections on the use of behavioral intervention are “to consider” not “to develop or implement” (Endrew, 2015, p. 186) behavioral interventions.

Drew’s parents, undaunted by successive losses at every stage of the adjudicative process, filed an appeal (called a petition for certiorari) with the U.S. Supreme Court. The High Court agreed to hear the case, and oral arguments were held on January 11, 2017.

The U.S. Supreme Court’s Decision in Endrew F. v. Douglas County School District (2017)

On March 22, 2017, the Supreme Court announced its decision in the Endrew case. In a 16-page opinion written for a unanimous Court, Chief Justice John Roberts decisively rejected the low standard of educational benefit.

When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time they were old enough to drop out.” The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. (Endrew, 2017, p. 14)

Chief Justice Roberts also addressed the importance of IEP teams addressing students’ academic and functional needs as follows: “An IEP must aim to enable the child to make progress; the essential function of an IEP is to set out a plan for pursuing academic and functional progress” (Endrew, 2017, p. 11).

The decision altered the Rowley test that hearing officers and judges need to apply in FAPE cases. The new standard, which may correctly be called the Rowley/Endrew test, still includes the procedural test from Rowley; that is, did the school district adhere to the procedural requirements? The second part of the test, however, is the new Endrew test: Was the IEP reasonably calculated to enable a student to make progress appropriate in light of his or her circumstances? The Endrew educational benefit standard is clearly higher than the previous standard adopted by the Rowley Court. As Justice Roberts wrote, “A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act (in 1975)” (Endrew, 2017, p. 11).

After announcing the new standard, the Supreme Court sent the case back to the Tenth Circuit Court to reconsider its ruling in light of the new higher standard for educational benefit (a process called remanding). On August 2, 2017, the Tenth Circuit Court remanded the case to the U.S. District Court for the District of Colorado, the first court to rule on Endrew, to reconsider its ruling in light of the Supreme Court’s higher educational benefit standard.

The Final Chapter of Endrew F. v. Douglas County School District (2017)

On February 12, 2018, the judge for the U.S. District Court for the District of Colorado, Lewis Babcock, issued his decision in the remand of the Endrew case. The judge reversed his original decision, ruling in favor of Drew and his parents. Judge Babcock ruled that the Douglas County School District had failed in its duty to provide a FAPE. The judge’s focus on the school district’s failure to address Drew’s problem behaviors is instructive in its application of the new FAPE standard to address behavior problems in student’s IEPs.

Judge Babcock noted that the issue before him was to determine if Drew’s IEPs were reasonably calculated to enable him to make progress appropriate in light of his circumstances. To make his determination, Judge Babcock paid particular attention to the behavioral aspects of Drew’s IEPs, noting that the Douglas County School District had failed to (a) assess Drew’s problem behaviors, (b) implement positive behavior supports and strategies, or (c) develop an appropriate behavior intervention plan (BIP). The judge held that these school district failures led to an educational program that did not “address (Endrew’s) maladaptive behaviors” and that Endrew’s “increasingly disruptive behaviors were impacting his ability to meet his educational goals” (Endrew, 2018, p. 16).

Judge Babcock ordered the Douglas County School District to reimburse Drew’s parents for tuition and related expenses that were incurred when they removed Drew from the Douglas County School District and placed him in a private school at their own expense. The judge also ordered the Douglas County School District to pay Drew’s parents court costs and attorneys’ fees, which amounted to US$1.32 million dollars (Schimke, 2018). Thus, the case of Endrew F. v. Douglas County School District, which took 7 years from the due process hearing to the final decision in the District Court of Colorado, was over.

Adhere to the Procedural and Substantive Requirements of the IDEA

The Rowley and Endrew rulings divided the IDEA’s FAPE mandate into two specific types of requirements: the procedural and substantive. The procedural aspect of FAPE, which is Part 1 of the Rowley test, requires that the school district personnel adhere to the process-based obligations in the IDEA such as ensuring that (a) students’ parents are meaningfully involved in the development of their child’s IEP, (b) the appropriate team members are included in the IEP team, (c) all necessary components are included in the student’s IEP, and (d) students’ IEPs and placements are not predetermined (Yell, Katsiyannis, Ennis, & Losinski, 2013). In the Individuals With Disabilities Education Improvement Act (IDEIA) of 2004, Congress required that hearing officers determine if a school district has provided FAPE primarily on substantive grounds unless the procedural violations committed by school personnel (a) impede a student’s rights to a FAPE, (b) deprive a student of educational benefits, or (c) hinder a student’s parents’ involvement in the special education decision-making progress (IDEA, 20 U.S.C. § 1415[f][3][E]). In addition, when school district personnel commit multiple procedural errors, even when the errors do not include the most serious errors listed above, the combination of errors may lead to a denial of FAPE (see In re student with a disability, 2018). Thus, adhering to the procedural obligations is very important because a failure to observe these requirements can, in and of themselves, lead to a denial of FAPE (Weatherly & Yell, 2017).

The substantive part of FAPE, which is the new Endrew standard, requires that school district personnel craft an IEP that is reasonably calculated to enable a student to make progress appropriate in light of his or her circumstances. According to Zirkel (2017), “the substantive side (of FAPE) focuses the adequacy of the IEP in terms of its likely or actual results” (p. 174). Substantive requirements involve the programming and services in an IEP, such as the measurable annual goals, special education services, and procedures for monitoring progress, and ensuring that these components of an IEP are relevant, meaningful, and implemented as written. It is also important that the IEP team addresses how a student’s progress toward his or her annual goals will be monitored, how and with what frequency a student’s progress will be reported to his or her parents, and how the IEP team will respond if the student fails to progress. To ensure that a team can evaluate a student’s progress, the PLAAFP statement must become a baseline by which the team develops the student’s measurable annual goals, and then monitors progress toward achieving those goals (Yell et al., 2016).

Address Behavioral Problems of Students With Disabilities in Their IEPs

In 2018, the U.S. Department of Education (2017) released a question-and-answer document on the Supreme Court’s decision in Endrew including 20 questions and answers. In answering Question Number 16 (“Must IEPs address the use of positive behavioral interventions and supports?”), officials in the Department confirmed that “IEP teams must consider and, if necessary to provide FAPE, include appropriate behavioral goals and objectives and other appropriate services and supports in the IEPs of children whose behavior impedes their own learning or the learning of their peers” (U.S. Department of Education, 2017, Question 16).

The Endrew decision also clarifies the need for IEP teams to ensure that educational programs for IDEA-eligible students with behavior problems confer a FAPE, which will require that programs must aim to ensure that a student makes progress academically and behaviorally. Furthermore, IEP teams must conduct assessments that address all of a students’ academic and behavioral needs irrespective of the category in which the student may be placed. An example of what may happen when IEP teams fail to address behavioral issues is clear from Judge Babcock’s decision when the Supreme Court remanded the Endrew case back to the district for a ruling in light of the Court’s higher educational benefit standard. The judge addressed this failure by the Douglas County School District in his opinion when he wrote, “The District’s inability to properly address Petitioner’s behaviors that, in turn, negatively impacted his ability to make progress on his educational and functional goals, also cuts against the reasonableness of (Endrew’s) IEP” (Endrew, 2018, p. 17). A judge in the U.S. District Court for the Southern District of West Virginia aptly summed up the importance of behavioral programs in providing a FAPE as follows: “educational benefit must embrace more than academic subjects . . . the court must examine the IEP to determine whether it is reasonably calculated to provide benefit in academic areas and non-traditional areas critical to the child’s education” (Board of Education of Kanawha v. Michael M., 2000, p. 612).

If an assessment reveals a behavioral need or needs (i.e., a student’s behavior negatively affects his or her learning, or the learning of others), it is not enough to merely consider behavioral interventions. When a need is identified, a program of positive behavior interventions and supports to address the behavior must be developed and implemented. Such a program will necessarily include measurable annual goals and, if required, short-term objectives that address those behavioral needs. Moreover, the goals must be challenging, appropriately ambitious, and measurable. To assist a student to achieve his or her goals, the IEP team must craft a program of “special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable” (IDEA, 20 U.S.C. § 1414 [d][1][A][i][IV]). According to the U.S. Department of Education in a 2016 policy letter,

The failure to consider and provide for needed behavioral supports through the IEP process is likely to result in a child not receiving a meaningful educational benefit and FAPE . . . While such determinations are necessarily individualized, this guidance is intended to focus attention on the need to consider and include evidence-based behavioral supports in IEPs. (U.S. Department of Education, Office of Special Education and Rehabilitative Services, 2016)

Ensure That Students’ IEPs Are Implemented as Written

Students’ IEPs can be procedurally correct and be reasonably calculated to enable a student to make academic and functional progress and still deny the student a FAPE, if the IEP is not implemented as written. Zirkel (2017) referred to a school district failing to implement a student’s IEP as the third dimension of FAPE (the procedural and substantive being the first two dimensions). Although the IDEA does not address IEP implementation, a few courts have examined failure to implement IEPs, and these cases have ruled that when a school district fails to implement important parts of a student’s IEP, this error can lead to a denial of FAPE (Bateman, 2017; Zirkel, 2017). School district officials should consider the following pronouncement by the U.S. Court of Appeals for the Ninth Circuit as excellent advice regarding IEP implementation issues: “An IEP, like a contract . . . embodies a binding commitment and provides notice to both parties as to what services will be provided to the student during the period covered by the IEP” (M.C. v. Antelope Valley Union High School District, 2017, p. 1201).

Defining FAPE

Perhaps most importantly, I believe Congress needs to revise the definition of FAPE, which has remained unchanged since the original passage of the EAHCA in 1975. Although the definition of FAPE has not changed, both the IDEA Amendments of 1997 and the IDEIA of 2004 seemed to elevate the FAPE standards of the IDEA (Blau, 2007; Eyer, 1998; Huefner, 2008; Johnson, 2003). Indeed, in the 2004 reauthorization of the IDEA, Congress emphasized that “improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities” (IDEA, 20 U.S.C. § 1400[c][1]). As Huefner (2008) noted following the reauthorization of the IDEA in 2004,

The purpose of IDEA is no longer to provide a “basic floor of opportunity.” The expectation of academic and functional progress calls for more than a floor. Although IDEA does not expect, let alone guarantee any certain standard of achievement, it expects meaningful or substantive progress both toward general curriculum goals and the student’s unique educational goals (such as social/behavioral, physical, functional, and developmental goals) resulting from the disability. (p. 378)

Unfortunately, courts have not always viewed FAPE in accordance with the seeming elevated standard in the amendments of 1997 and 2004. In fact, courts have sometimes used Congress’s failure to change the definition as reasoning for determining school districts had provided a FAPE. For example, in the Endrew ruling in 2015, the U.S. Court of Appeals for the Tenth Circuit noted that “Congress has maintained the same statutory definition of a FAPE from its initial inception in the EHA (Education of the Handicapped Act of 1970) and in each subsequent amendments to the Act” (e.g., the IDEA of 1997, the IDEA Amendments, the IDEIA of 2004; Endrew, 2015, p. 1349). The court seemed to view FAPE in the same way as the Supreme Court did in Rowley (1982), when Chief Justice Rehnquist wrote that in the original definition of FAPE, Congress’s aim had been to set “a basic floor of opportunity” (Rowley, 1982, p. 200) and that “by passing the Act, Congress sought primarily to make public education available to handicapped children” (Rowley, 1982, p. 192). Even Chief Justice Roberts wrote in the Endrew ruling that the High Court was “mindful that Congress (despite several intervening amendments to the IDEA) has not materially changed the statutory definition of FAPE” (Endrew, 2017, p. 15).

In the next reauthorization of the IDEA, Congress should amend the definition of FAPE to elevate the educational benefit standard to that adopted in Endrew. For example, the definition of FAPE could be changed as follows: A FAPE consists of special education and related services that (a) have been provided at public expense, under public supervision and direction, and without charge; (b) meet the standards of the State educational agency; (c) include an appropriate preschool, elementary, or secondary school education in the State involved; and (d) are provided in conformity with the IEP, which is collaboratively developed to enable a student to make progress appropriate in light of his or her circumstances and is implemented as written. The final clause, written in italics, would be the only difference from the current definition but would incorporate the new Endrew educational benefit standard into the statute.

Clarifying the Behavioral Standard

When Drew’s parents brought an action in the U.S. District Court, they asserted that the Douglas County School District had committed procedural and substantive violations of the IDEA, including failing to adequately address Drew’s escalating behavior problems. The U.S. Court of Appeals pointed out that the IDEA “requirement is merely to consider the use of (positive behavioral) interventions” (Endrew, 2015, p. 1342).

The IDEA includes the following requirement regarding the use of behavioral interventions: “in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” (IDEA, 20 U.S.C. 1414[d][3][B][i]). Zirkel (2011a) noted that “the operant verb (in this section of the IDEA) was ‘to consider’ not ‘to develop or implement’” (p. 186). Of course, it is far easier to meet the lenient standard of “consider” than it is to meet a more stringent standard such as “develop” or “implement.”

Because courts must consider statutory language when ruling whether laws have been followed, it is important that Congress addresses this problem in the next reauthorization. I suggest that Congress adopt a definition similar to that used in the Office of Special Education and Rehabilitative Services’ Dear Colleague Letter of August 1, 2016, which I have updated slightly to reflect the ruling in the Endrew decision (see U.S. Department of Education, Office of Special Education and Rehabilitative Services, 2016): To ensure that each student receives an education that allows him or her to make progress appropriate in light of the student’s circumstances, the IEP team must consider the needs for positive behavioral interventions and supports for students with disabilities whose behavior impedes their learning or that of other, and, when determined necessary to ensure FAPE, include or revise needed behavioral supports in the student’s IEP.

Reframing the FBA Requirement

In the Endrew case, the parents contended that the Douglas County School District violated the IDEA by failing to conduct an FBA, which they believed was necessary to appropriately assess their son’s needs. Both the U.S. District Court and the U.S. Court of Appeals noted, however, that an FBA was only required when disciplinary actions changed a student’s placement and that even if Drew’s placement had been changed, which it had not, the IDEA did not include any substantive standard regarding FBAs.

Conducting an FBA, and using the results of the FBA as part of a comprehensive assessment, to guide the development of IEPs and BIPs for students with behavioral problems is certainly a best educational practice (Gage, Lewis, & Stichter, 2012; Horner & Yell, 2017; Kern, Hilt, & Gresham, 2004; Landrum & Tankersley, 2013). Unfortunately, it is only a mandate under the IDEA in a reactive sense. That is, an FBA is required by the federal law when (a) students with disabilities are disciplined in a manner that changes their placement (IDEA Regulations, 34 C.F.R. § 300.530[d][ii]) and (b) students’ parents and relevant IEP team members determine that a student’s behavior, which led to a change of placement, was a manifestation of the student’s disability (IDEA Regulations, 34 C.F.R. § 300.530[f][1][i]). Although the law does not mandate the use of best practices, using best practices will certainly meet the substantive requirements of the law and will likely lead to improved student outcomes.

FBAs are powerful tools when they are used to improve the effectiveness and efficiency of students’ IEPs and BIPs, thus improving academic and social outcomes for students (Lane, Umbreit, & Beebe-Frankenberger, 1999; Payne, Scott, & Conroy, 2007). To relegate the use of FBAs to solely disciplinary situations, as currently required by the IDEA, is a misuse of this technology. Some state laws and regulations go beyond the IDEA and require that school-based personnel conduct FBAs for students with disabilities whose behaviors impede their learning (see Zirkel, 2011b, and von Ravensburg & Blakely, 2015, for an analysis of state laws on FBAs). The majority of states, however, do not go beyond the IDEA’s FBA requirements in laws and regulations. I believe that state laws and regulations that require more than the IDEA’s FBA language offer a model that should inform the next IDEA reauthorization process. For example, in regulations regarding assessments of students with disabilities, New York State requires that school districts conduct “appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others” (N.Y. Comp. Codes R. & Regs. Title 8 § 200.4[B][1][v]). I suggest that Congress adopt a similar definition that clarifies that the FBA is to be used by a student’s IEP team to develop his or her IEP or BIP. Language such as the following should be included in the section defining the assessments and evaluations that are used in IEP development: A functional behavioral assessment shall be conducted with students whose behaviors impede their learning or the learning of others to guide the implementation and development of students’ individualized education program or behavior intervention plan. Moreover, this language regarding FBAs should not only appear in the IDEA’s section on discipline (i.e., IDEA, 20 U.S.C. § 1415, et seq.) but also in sections on evaluations and IEPs (i.e., IDEA, 20 U.S.C. § 1414, et seq.).

Advocacy for the educational rights of students with disabilities has resulted in many victories, including the enactment of the EAHCA in 1975. To enhance the effectiveness of the Endrew decision, I believe advocates for students with EBD, and all students with disabilities, need to work for improvements in the IDEA and its implementing regulations.