Endrew F. v. Douglas County School District (2017): The U.S. Supreme Court and Special Education

Abstract

On March 22, 2017, the U.S. Supreme Court announced its decision in Endrew F. v. Douglas County School District. This case addressed the question how much educational benefit are public schools required to provide to students with disabilities under the Individuals With Disabilities Education Act (IDEA) to confer a free appropriate public education (FAPE). The purpose of this legal update is to provide a brief overview of court developments regarding FAPE, summarize Endrew, and provide implications for practice.

Keywords

law legal policy

The foundation of the Individuals With Disabilities Education Act (IDEA, 1990) is that all eligible students with disabilities receive a free appropriate public education (FAPE). The IDEA defined FAPE as special education and related services that are of no cost to a student’s parents, meet state educational standards, include an appropriate preschool, elementary, or secondary education, and are provided in conformity with a student’s individualized education program (IEP; IDEA, 20 U.S.C. § l401(a)(9)). Consequently, what qualifies as an appropriate education for one student may be different from what qualifies as an appropriate education provided to another student.

In 2017, the U.S. Supreme Court in Endrew F. v. Douglas County School District (hereafter Endrew) ruled that schools have an obligation to “enable a child to make progress appropriate in light of the child’s circumstances.” In doing so, the Court rejected the ruling by the Tenth Circuit that a child’s IEP is intended to provide “merely more than de minimis” benefits. The purpose of this legal update is to provide a brief overview of court developments over the years regarding FAPE, summarize Endrew, and provide implications for practice.

Litigation and Free Appropriate Public Education

Since 1982, the standard established in Board of Education of the Hendrick Hudson School District v. Rowley (hereafter Rowley) has been used as a guide by hearing officers and courts to determine whether a child was receiving a FAPE. Specifically, Rowley established the following two-step process to determine if a FAPE had been provided: (a) whether the student’s IEP was developed according to the procedural requirements of the law and (b) whether the IEP was reasonably calculated to provide educational benefit.

Over the years, courts have been required to apply the two-part Rowley test when determining FAPE in specific cases. Courts have not had problems when determining the first part of the Rowley test, the procedural requirements. Part two of the Rowley test, involving the IEP reasonably calculating an educational benefit, has proven to be much more difficult. The primary problem lay in determining what constitutes educational benefit for a particular student. Two different standards have emerged from the U.S. Courts of Appeals regarding educational benefit. The courts of appeals for five circuits (i.e., Second, Fourth, Eighth, Tenth, and Eleventh) have adopted a “some educational benefit” standard, which requires schools to ensure that a child with a disability receives merely more than de minimis or merely more than trivial benefits. In contrast, three other circuits (i.e., Third, Fifth, and Sixth) have adopted a standard that calls for meaningful educational benefit.

Endrew F. v. Douglas County School District

On August 25, 2015, the U.S. Court of Appeals for the Tenth Circuit handed down its decision in Endrew. The case led to an appeal to the U.S. Supreme Court, setting the stage for Endrew to become the catalyst for the most important special education decision since the Rowley case.

Facts of the Case

Endrew F., referred to as Drew in the court’s opinion, was diagnosed with autism at the age of 2 and a year later he was diagnosed with attention-deficit/hyperactivity disorder. His disabilities affected his cognitive functioning, language and reading skills, and social and adaptive abilities. Drew attended Douglas County schools from preschool through fourth grade. During these years, the school district provided Drew with special education and related services as specified in his IEP.

Despite these services, Drew made minimum progress and continued having academic and behavioral challenges. As a result, Drew’s parents placed him in a private facility specializing in educating students with autism, and rejected the district’s IEP for fifth grade. Subsequently, parents filed for a due process hearing seeking tuition reimbursement based on denial of FAPE by the school district. Both the hearing officer and the district court, however, ruled in favor of the district, concluding that school district had provided Drew with a FAPE because the district had provided Drew with some educational benefit. His parents appealed to the U.S. Court of Appeals for the Tenth Circuit.

The Court of Appeals

In their appeal, Drew’s parents alleged that the school district had committed both procedural and substantive violations in developing Drew’s IEPs, thus violating both parts of the Rowley FAPE test. Regarding the procedural deficiencies, the parents alleged that the district failed to (a) report on Drew’s progress and (b) assess his behavior through the use of a functional behavior assessment (FBA). Regarding the substantive violations, Drew’s parents alleged that Drew’s lack of progress reporting toward his annual goals and objectives in the IEP limited their ability to participate in developing Drew’s education. The school district contended that progress reporting was sufficient for Drew’s parents to assess his progress and their involvement in his education did not suffer. The special education teacher maintained regular communication with the parents through the use of a traveling notebook, quarterly progress reports, and face-to-face meetings. They participated in IEP meetings and contributed information about Drew’s annual goals and objectives. The district conceded that its reporting measures for Drew’s progress could have been more robust, instead of actually providing information on Drew’s progress, the district merely provided general statements about his progress and whether or not his mastery of included goals would be reached, nevertheless the district contented that the reported was sufficient to provide a FAPE.

In addition, the parents challenged the district’s programming to address Drew’s problem behavior. Not only did the district fail to conduct a behavioral assessment before implementing a behavioral intervention plan (BIP), they also failed to develop an appropriate BIP. Some of Drew’s previous problem behaviors included hitting, screaming, running away from school, climbing over furniture and other students, and two episodes of removing his clothing and using the bathroom on the classroom floor. These behaviors negatively affected his ability to access the general education curriculum. The BIPs in question identified some of these behaviors and provided suggestions for reducing them; however, Drew’s problem behaviors escalated during his fourth-grade year to the degree that the district decided a new approach was needed. The district’s efforts to address these behaviors were too late in the parents’ opinion, for they had already enrolled Drew in the private setting by the time the district offered the help of an autism specialist and a behavior specialist. The school district recognized that when developing and revising a student’s IEP, the IDEA requires that the IEP team must “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)). The Tenth Circuit Court, however, noted that the operative term was consider the use of such interventions and not necessarily to implement them. Moreover, the district has considered Drew’s behavior problem, thus complying with the IDEA.

Regarding the substantive deficiencies, the parents argued the district court and administrative law judge (ALJ) (a) used the wrong legal standard to evaluate the substantive deficiencies of the IEP and (b) concluded incorrectly that the IEP Drew’s IEP was inadequate due to lack of measurable progress on IEP goals and (c) did not consider Drew’s escalating behavior problems. Drew’s parents also argued the school district’s proposed fifth-grade IEP did not provide FAPE because his fifth-grade IEP was similar to previous IEPs and the school district did not consider Drew’s escalating behaviors. For these reasons, Drew’s parents asserted that his IEP was not reasonably calculated to provide educational benefit.

The appellate court used this argument as an opportunity to clarify their position of “some educational benefit” over “meaningful educational benefit.” The parents were questioning their perception of inconsistent rulings in the Tenth Circuit about the previously ruled “the educational benefit mandated by IDEA must be merely more than de minimis.” In the case of Endrew (2014), the appellate court used the district court’s definition of “sufficient to show a pattern of, at the least, minimal progress” (p. 10).

The circuit judges believed that Drew had made some progress that met their “some educational benefit” threshold, Drew’s goals had changed to some extent—though many remained the same—and the district’s efforts in crafting a behavioral plan did not result in denial of FAPE. In their ruling, the three-judge panel from the U.S. Court of Appeals for the Tenth Circuit admitted this was a close case, but ultimately, the court ruled in favor of the school district, concluding that the violations alleged by the parents were unfounded. Because the school district had provided Drew with a FAPE, therefore, the district was not responsible to pay for the private school placement. The court did not endorse the school district’s lack of progress reporting for Drew’s academic progress, however, the court acknowledged that the lack of reporting did not equate to a denial of FAPE. Despite of these limitations, the court held the parents were afforded meaningful participation in developing the child’s IEP, the student was making minimal progress, and the proposed IEP was reasonably calculated to enable Drew to receive educational benefits. The degree of educational benefit may have been “merely more than de minimis” but, according to the Tenth Circuit, that was enough to satisfy the FAPE standard of the IDEA.

On December 15, 2016, Drew’s parents filed a Petition for a Writ of Certiorari with the U.S. Supreme Court asking them to resolve the split among circuits on the issue of educational benefit. In their petition, the parents described conflicting rulings from several circuits about the level of educational benefit required. The parents claimed that the intent of the IDEA is to provide a meaningful education, not “just-above-trivial” benefit. On September 29, 2016, the Supreme Court agreed to hear the case. The question they asked of the Supreme Court was “What is the level of educational benefit that school district’s must confer on children with disabilities to provide them with a free appropriate public education as guaranteed by the Individuals with Disabilities Education Act?” (Howe, 2017).

The U.S. Supreme Court

Thirty-five years after its first FAPE case in Rowley (1982), the Supreme Court heard oral arguments in Endrew on January 11, 2017. In the March 22, 2017, decision, Chief Justice John Roberts wrote the opinion for a unanimous court ruling to vacate the decisions of the U.S. Court of Appeals for the Tenth Circuit. The Endrew decision reinforced some aspects of the Rowley standard and increased the standard in others. The High Court reinforced the idea that the judicial system should avoid imposing their view of preferable educational methods upon the states or substituting their judgment for that of school officials. In its 1982 Rowley opinion, the Court noted that the role of the courts was to determine whether or not the IEP had been “reasonably calculated to enable the child to receive educational benefits.”

Differences in the Rowley and Endrew standards exist in the level of benefit afforded to students who receive special education services under IDEA. Under Rowley, “educational benefit” from special education and related services for a student with a disability did not include an express substantive standard. The U.S. Court of Appeals for the Tenth Circuit, and a number of other circuits, had interpreted this standard of educational benefit as being “merely more than de minimis” or just above trivial benefit. In Endrew, the Supreme Court soundly rejected the notion that “some benefit” is defined as any benefit above no benefit at all. Rather the Court found that the purpose of an IEP is to set a plan for advancements in a student’s academic and functional abilities. A student’s IEP must be “appropriately ambitious in light of his [the student’s] circumstances” and give the student “the chance to meet challenging objectives” (Endrew, 2017, p. 14). Chief Justice Roberts called the decision a general standard, rather than a formula for determining FAPE. However, this new standard is markedly more demanding than the merely de minimis test.” Regarding the degree of educational benefit, reviewing courts in future cases will be responsible to follow the Endrew standard and determine whether a school district developed an IEP that was “reasonably calculated to enable the child to make progress appropriate in light of his circumstances” (Endrew, 2017, p. 15–16).

The Supreme Court found the de minimis standard of educational benefit to be too low; nevertheless, the Court did not embrace Drew’s parents’ standard giving students with disabilities opportunities for an equal education and self-sufficiency. The standard of educational benefit that the court adopted called for an IEP to be reasonably calculated to enable the student to make progress appropriate in light of his or her circumstances. The Supreme Court remanded the case back to the Tenth Circuit Court to apply the new standard to the Endrew case.

Implications for Practice

To respond to the Endrew decision, IEP team members should, as always, adhere to effective practices by (a) addressing all the needs of an eligible student with disabilities when conducting assessments, (b) developing IEP that include measurable annual goals in academic and functional areas that are ambitious, though reasonable, (c) targeting a student’s special education and related services to improve a student’s achievement and functional performance, and (d) including measures for monitoring student progress (including who is responsible for monitoring, methods for monitoring student progress, and how often the academic and behavioral skills will be monitored) and providing this information be reported to a student’s parents. Although the Endrew decision does not mandate the use of best practices, a way to ensure that the Endrew educational benefit standard can be met is by using best practices.

Data-based decision making in the form of ongoing academic and behavioral progress monitoring should be conducted frequently and systematically and IEP teams should use the data to inform their instructional decisions. A research-based practice that school districts may use to increase the likelihood of meeting the Endrew standard is by having special education teachers use curriculum-based measurement. Curriculum-based measurement (CBM) consists of simple indictors of academic performance (e.g., oral reading fluency: reading aloud from a passage for one minute as a measure of reading) that can be used to provide a snapshot of an individual student’s overall academic performance and when these indicators are administered repeatedly over time, they can be used to monitor student progress (Fuchs, 2016). Moreover, using CBM is an educationally meaningful and legally sound way to develop and measure annual IEP goals (Yell & Busch, 2012). Whereas the use of CBM to document student progress and set annual IEP goals has increased over the past 30 years, teachers may need assistance to effectively link student performance to individualized instructional needs (den Bosch, Espin, Chung, & Saab, 2017).

It will take future decisions to determine exactly how courts will interpret the Endrew standard. Nonetheless, it is clear that the de minimis or trivial view of educational benefit has been overturned. Instead, when determining whether a school district has met the educational benefit standard of Endrew, and provided a student with FAPE, hearing officers and judges will need to determine if an IEP was reasonably calculated to enable to student to make progress appropriate in light of his or her circumstances.

Footnotes

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

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