The Supreme Court and Special Education

Board of Education of the Hendrick Hudson Central School District v. Rowley (1982)

This case involved Amy Rowley, a deaf student attending Furnace Woods school in Peekskill, New York. The year before Amy’s attendance at Furnace Woods, an IEP meeting was held between her parents and school officials to determine future placement and special education services. The IEP planning team decided to place Amy in the regular kindergarten class to determine what supplemental services she might need. Some of her teachers learned sign language, Amy used an FM hearing aid, received instruction from a tutor for the deaf for 1 hour each day, and speech therapy for 3 hours each week. Additionally, a teletype machine was placed in the school office so that Amy could communicate with her parents, who were also deaf. Amy’s parents also requested that she receive the services of a sign language interpreter in her class. The IEP team decided to place an interpreter in her class for the last few weeks of school. The experiment, however, was determined to be a failure and the interpreter was removed from the classroom. Amy successfully completed her kindergarten year. When the IEP meeting was held before Amy entered first grade, her parents again requested a sign language interpreter. The school district refused. Amy’s parents requested a due process hearing. The school district won at the due process hearing but lost in the U.S. District Court and U.S. Court of Appeals for the Second Circuit.

The school district appealed to the Supreme Court which issued its decision on June 28, 1982. The High Court ruled that Amy did not require the services of an interpreter to receive FAPE because her IEP provided her educational benefit as shown by Amy’s progress in getting passing grades and being promoted from grade to grade. In the majority opinion, Chief Justice William Rehnquist wrote,

We hold that it satisfies [the FAPE] requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP. (Rowley, 1982, p. 204)

Finally, the Court established a two-step test to be used by courts in FAPE cases. First, had the state complied with the procedures set forth in the act? And second, was the IEP developed through the act’s procedures reasonably calculated to enable the child to receive educational benefits (Rowley, 1982, p. 207)? When the Court applied the first part of the test, the justices found that school personnel at Furnace Woods had complied with the procedures of the law. Unfortunately, because Amy was academically able and very bright, she had an IQ of 125, the justices never had to grapple with the second part of the test (i.e., the amount of educational benefit question). Clearly, she was doing very well in school, so the High Court held that her IEP was reasonably calculated to provide her educational benefit. Over the years, the educational benefit part of the Rowley FAPE test had proven difficult for many courts to apply, which resulted in decisions that required school districts to provide anywhere from trivial amounts of educational benefit to meaningful educational benefit to confer a FAPE. The issue was again addressed by the Supreme Court 35 years after the Rowley decision.

Endrew F. v. Douglas County School District (2017)

Endrew F. was diagnosed with autism and attention-deficit/hyperactivity disorder when he was a young child. From preschool through fourth grade, he attended Douglas County School district and received special education services. Each year, Endrew was provided an IEP that addressed his educational and functional needs. By fourth grade, however, Endrew’s parents became dissatisfied with the services provided the school district because it seemed to them that Endrew’s academic and functional progress had stalled. Although he showed some strengths, he still exhibited behaviors that would inhibit his learning within the classroom and he was doing poorly academically. When Endrew was in fourth grade his parents pulled him from the Douglas County School District and placed him in a private school. While at the private school Endrew progressed academically and behaviorally. His parents wanted Endrew to attend public school so they had a meeting in the Douglas County School District to draft his fifth grade IEP. When the proposed IEP for his fifth-grade year was presented to Endrew’s parents it continued many of the same goals of the previous IEP and provided limited new behavioral programming. Frustrated, Endrew’s parents again removed him from the public school and placed him back in the same private school. They also requested a due process hearing alleging that the school district had failed to provide Endrew with a FAPE. They requested tuition reimbursement from the school district. The hearing officer and subsequently the U.S. District Court for the state of Colorado and the U.S. Court of Appeals for the Tenth Circuit ruled in favor of the school district. They ruled in the district’s favor because the Tenth Circuit, encompassing the states of Colorado, Kansas, New Mexico, Oklahoma, Wyoming, and Utah, used a very low standard of the amount of educational benefit that had to be conferred for school districts to provide a FAPE. In fact, the circuit court required that educational benefit provided had to be “merely more than de minimis” to confer FAPE (Endrew, 2017, p. 14). Because the hearing officer and the courts found that Endrew had at least made some small amount of progress while in the Douglas County School District, therefore, they determined that he had been provided with a FAPE. The parents filed an appeal with the U.S. Supreme Court. The question that Endrew’s parents asked the Court to answer concerned the amount of educational benefit that a school district had to provide to be in compliance with the FAPE mandate of the IDEA.

On March 22, 2017, the Supreme Court unanimously ruled that the Douglas County School District had failed to provide Endrew with a FAPE. The court rejected the low educational benefit standard of the Tenth Circuit and held that for a school to meet its FAPE obligation under the IDEA, the district must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (Endrew, 2017). As Chief Justice John Roberts wrote in the Endrew decision, “A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act. . . . The IDEA demands more” (Endrew, 2017, p. 11).

In this case, the Court preserved the Rowley test although they clarified the second part of the test involving educational benefit. Finding little significance in the language in Rowley requiring schools to provide an education designed to confer some educational benefit, the Endrew decision clarified that the educational benefit standard was academic and functional progress. Endrew, therefore, served to clarify and extend the Rowley decision.

Implications of Rowley and Endrew for Special Educators

The Supreme Court’s rulings in the Rowley and Endrew cases have created a standard for special educators to follow in order to provide a student with disabilities a FAPE under the IDEA. First, school personnel need to adhere to the procedural requirements of the IDEA and violations of certain procedural requirements of the law could result in a FAPE violation. Second, a student’s IEP team must develop an IEP calculated to enable a student to make academic and/or functional progress that is appropriate in light of the student’s capabilities. This standard means that IEP teams need to focus on the elements of the IEP that will enable a student to make progress. IEP teams must ensure that they (a) conduct relevant and complete assessments; (b) develop ambitious, challenging, and measurable goals; (c) adopt data-based progress monitoring systems; and (d) collect and react to the data collected (Yell & Bateman, 2018).

Irving Independent School District v. Tatro (1984)

The parents of 8-year-old Amber Tatro, a student diagnosed with spina bifida, an orthopedic impairment, maintained that Amber’s IEP should include a provision for school personnel to administer catheterization every 3 to 4 hours to avoid injury to her kidneys. Amber also had a speech impairment as well as a neurogenic bladder, a condition that required that Amber be catheterized every 3 to 4 hours using a procedure called clean intermittent catheterization (CIC). This service was a simple procedure that could be performed by a layperson with less than an hour’s training. Amber’s parents requested that the CIC procedure be included in Amber’s IEP. School personnel, however, would not provide the CIC as a related service, because they determined it was a medical service not required under the IDEA (then titled the Education for All Handicapped Children Act, or EAHCA).

Amber’s parents unsuccessfully pursued a due process hearing to have the school train personnel to provide CIC as a related service. The parents then brought suit in the U.S. District Court; the court ruled in favor of the school district, holding that CIC was not required by the law because it did not serve an educational function. The parents filed an appeal with the U.S. Court of Appeals for the Fifth Circuit, which reversed the lower court’s ruling finding that CIC was a related service under the law because Amber could not attend school without it and remanded the decision back to the district court. In the new ruling, the district court held that because CIC didn’t require a medical doctor, it was a related service under the law. The Irving Independent School District appealed to the U.S. Supreme Court. The High Court decided to hear the case, which was its second special education case. The primary question the Court was asked to answer was whether the EAHCA required the school district to provide CIC services to Amber.

Chief Justice Warren Burger delivered the opinion for the Court. Justice Burger noted that CIC was a necessary service because without it Amber could not benefit from her special education services. Moreover, the Court held that CIC was not a medical service. According to the Court,

A service that enables a handicapped child to remain at school during the day is an important means of providing the child with the meaningful access to education that Congress envisioned. Services like CIC that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter, or exit the school. (Irving Independent School District v. Tatro, 1984, p. 886)

The Supreme Court adopted a bright-line test that lower courts would follow in making related service decisions. If a physician is needed to provide the health care service, the school district is not responsible for providing it. If a nonphysician is able to provide the service, even if they are medical in nature, the school district is responsible for providing the service.

Cedar Rapids Community School District v. Garret F. (1999)

When Garret F. was 4 years old, he was paralyzed in a motorcycle accident. As a result of the accident he was a quadriplegic and ventilator dependent. Garret received special education services under the IDEA and required a substantial amount of complex services delivered by a full-time nurse during the school day, including catheterization, tracheotomy sanctioning as needed, food and drink on a regular schedule, repositioning, ventilator setting checks, and observation for respiratory distress. From kindergarten through fourth grade, Garret’s parents provided a licensed practical nurse at school who would perform these services using insurance and the settlement from the accident. Eventually the parents requested that the school assume financial responsibility for Garret’s care during the school day. The school district refused because they didn’t believe that one-to-one constant nursing care for the full day was a medical service and was not required by the IDEA. Garret’s parents filed for a due process hearing requesting that the school pay for the needed nursing services. The administrative law judge ruled against the school district and orders that the district pay for a full-time nurse and other services that Garret required.

The school district appealed to the U.S. District Court, which upheld the ruling of the administrative law judge against the school district. The school district filed an appeal with the U.S. District Court for the Eighth Circuit, which affirmed the lower court’s ruling in favor of Garret. Justice John Paul Stevens, writing for a 7 to 2 majority, upheld the rulings against the school district. Justice Stevens noted that the school district officials had not argued against any of the services, rather they believed the characteristics of Garret’s continuous daylong nursing care services were not required under the IDEA because they were a medical service. According to Justice Stevens majority opinion,

The District offers no explanation why these characteristics make one service any more “medical” than another. The continuous character of certain services associated with Garret’s ventilator dependency has no apparent relationship to “medical” services, much less a relationship of equivalence. Continuous services may be more costly and may require additional school personnel, but they are not thereby more “medical.” Whatever its imperfections, a rule that limits the medical services exemption to physician services is unquestionably a reasonable and generally workable interpretation of the [IDEA]. . . . It is undisputed that the services at issue must be provided if Garret is to remain in school. Under the statute, our precedent, and the purposes of the IDEA, the District must fund such “related services” in order to help guarantee that students like Garret are integrated into the public schools. (Cedar Rapids Community School District v. Garret F., 1999, p. 834)

Implications of Tatro and Garret F. for Special Educators

In Irving Independent School District v. Tatro (1984) and Cedar Rapids Community School District v. Garret F. (1999) the U.S. Supreme Court adopted in two important cases regarding related services. According to these rulings, when related services are needed to provide eligible students with disabilities with access to an appropriate education, such services must be provided at school district expense. When a student’s IEP team must consider what related services he or she needs to benefit from special education, these services should be included in the student’s IEP. According to the U.S. Supreme Court’s bright line test, the only limit to related services are that those services that may not be provided by a licensed medical doctor. A bright line test is a clear and objective test that leaves little room for interpretation.

Tuition Reimbursement

When parents decide that they need to pull their child from a public school and place him or her in a private school to receive an education appropriate to their child’s needs, they are incurring tuition expenses for the private school placement. The notion behind tuition reimbursement is that a student’s parents will receive compensation for the costs of unilaterally placing their child in a private school because the public school failed to provide an appropriate education. Thus, tuition reimbursement is not a monetary award in the traditional sense; rather, it is viewed by the courts as a reimbursement by the school district to the parents for the appropriate education that should have been provided initially (Yell, 2019). The U.S. Supreme Court has directly addressed tuition reimbursement in three cases: Burlington School Committee v. Massachusetts Department of Education (1985), Florence County School District Four (1993), and Forest Grove School District v. T.A. (2009).

Burlington School Committee v. Massachusetts Department of Education (1985)

Michael Panico, a student attending Burlington Public Schools, experienced serious learning problems in school, which ultimately resulted in him being identified as a child with a learning disability under the law and entitled to FAPE. Michael continued to experience problems and ultimately the parents rejected a proposed IEP that called for highly structured class of six children with special academic and social needs, located at another public school. Michael’s father, acting in accordance with a specialist’s recommendation, decided to place his son in a state-approved private school for special education students. Additionally, he filed for a due process hearing. The hearing office found in favor of Michael and ordered the school district to pay for Michael’s tuition and transportation to the private school. The school district appealed to the U.S. District Court, which affirmed the hearing officer’s finding, and then to the U.S. Court of Appeals for the First Circuit. The circuit court ruled in favor of the school district and remanded the case to he heard by the district court. The district court judge found that the school district was not required to pay for Michael’s private school tuition because the school had offered Michael a FAPE. The case eventually reached the U.S. Supreme Court after 6 years of litigation. The High Court considered only whether a court could order reimbursement to a parent who had unilaterally moved their child to a private school placement. The Supreme Court ruled that lower courts could order public schools to reimburse parents for the costs associated with private school placement if the Panicos prevailed. According to the High Court,

It would be a hollow victory to have a court tell [the parents] several years later that they were right but that [they could not] be reimbursed. . . . If that were the case, the child’s right to a free appropriate public education, the parents’ right to participate fully in developing a proper IEP, and all of the procedural safeguards would be less than complete. (Burlington School Committee v. Massachusetts Department of Education, 1985, p. 370)

Thus, if a school district fails to provide a student with a FAPE and the student’s parents unilaterally place him or her in a private school, the parents may be entitled to tuition reimbursement if the private placement is proper. The High Court did not define “a proper placement.” If parents unilaterally remove their child to a private school, however, they do so at their own financial risk because if a court determines the public school’s IEP was appropriate and provided a FAPE, the parents would not be reimbursed.

Florence County School District Four v. Carter (1993)

Shannon Carter was a student with a specific learning disability. Although she had struggled with reading and math for most of her school career, she was not formally declared eligible under IDEA until she was in ninth grade. The IEP that was developed for Shannon provided that she would stay in regular classes except for three periods of instruction by an itinerant teacher. She also had reading and mathematics goals that called for 4 months’ progress for the entire school year. Shannon’s parents were dissatisfied with the IEP and requested a due process hearing alleging that the school did not provide a FAPE. A hearing officer and then the state review board ruled in favor of the school district. At this point the parents removed Shannon from Florence County Four and put her in a private school for students with learning problems. She stayed at the private school until she graduated. Shannon’s parents filed a suit in the federal district court. The judge ruled the Florence Four School District had failed to provide Shannon with a FAPE and ordered them to pay for her private school tuition. The school district appealed, alleging the private school was inappropriate because it was not a state-approved school and did not meet all the requirements of the IDEA. The circuit court upheld the decision of the district court, thus requiring the school district to reimburse Shannon for tuition at the private school. The school district appealed to the U.S. Supreme Court.

The question the Court was asked to answer was whether or not a court reimburse parents who removed their child with disabilities from a public school and placed him or her in a private school that was not state approved per IDEA provisions? In the majority opinion, written by Justice Sandra Day O’Connor, the Supreme Court unanimously held that a student’s parents could unilaterally remove their child from the public school that does not provide an appropriate education under the IDEA and enroll him or her in a private school, as long as the private school offered a proper or good education. The High Court further held that the private school did not need to meet the specific requirements of the IDEA because the law’s requirements were not intended to apply to parental placements.

According to Justice O’Connor’s opinion,

[The IDEA] requires that the education be “provided at public expense, under public supervision and direction.” Similarly, [the law] requires schools to provide an IEP, which must be designed by “a representative of the local educational agency,” and must be “establish[ed],” “revise[d],” and “review[ed]” by the [school district]. These requirements do not make sense in the context of a parental placement. Nor do we believe that reimbursement is necessarily barred by a private school’s failure to meet state education standards . . . to read [these requirements] as applying to parental placements would effectively eliminate the right of unilateral withdrawal recognized in Burlington, and would defeat IDEA’s purpose of ensuring that children with disabilities receive an education that is both appropriate and free. (Florence County Four v. Carter, 1993, p. 21)

Forest Grove School District v. T.A. (2009)

T.A. attended Forest Grove school district from kindergarten through winter of his junior year. Though teacher reports pointed to T.A.’s inattention and assignment completion, these behaviors increased after he entered high school. After problems in his ninth grade year, T.A. was evaluated by a school psychologist. The psychologist concluded that T.A. did not meet requirements for learning disabilities or health impairments, including attention-deficit/hyperactivity disorder (ADHD). T.A. completed his sophomore year, but his problems worsened during his junior year. The parents sought legal advice due to T.A.’s poor performance in high school. In March 2003, T.A. was diagnosed, by a private psychologist hired by the parents, with ADHD and a number of disabilities related to learning and memory. The parents enrolled him in a private school with supports for his disabilities. In their suit, the parents alleged that the school district failed to meet its obligations under IDEA in not identifying T.A. as a student eligible for special education services and filed for a due process hearing alleging that the school district failed to provide FAPE per IDEA provisions. The due process hearing officer determined the Forest Grove School District had failed to provide T.A. with a FAPE and ordered the school district to reimburse T.A. for the private school tuition.

The school district appealed to the U.S. District Court, alleging that reimbursement was not appropriate because T.A. was unilaterally withdrawn from school and had never received special education services when he was enrolled in the public school. The district court overturned the ruling. On appeal the district court ruling was overturned and the school district was ordered to reimburse T.A. for the private school tuition. The school district appealed to the U.S. Supreme Court. The question addressed by the High Court was whether the IDEA prohibits courts to order private school reimbursement if a student has not previously received special education under the law. Justice John Paul Stevens wrote the opinion for the 6 to 3 majority in which the Court ruled that the IDEA did not bar private school reimbursement in cases in which a student had not received special education services from the public school. Additionally, the Court found,

The [Forest Grove School] District’s position similarly conflicts with the IDEA’s “child find” requirement. . . . A reading of the [IDEA] that leaves parents without an adequate remedy when a school district unreasonably failed to identify a child with a disability would not comport with Congress’ acknowledgement of the paramount importance of properly identifying each child with a disability. (Forest Grove School District v. T.A., 2009, p. 2498)

Implications of Burlington, Carter, and Forest Grove for Special Educators

In Burlington School Committee v. Massachusetts Department of Education (1985), the U.S. Supreme Court ruled that parents could retroactively collect tuition reimbursement if the following two conditions were met: (a) a school failed to offer their child a FAPE because his or her IEP was inappropriate and (b) the private school placement was proper. The High Court’s ruling in Florence County Four v. Carter (1993) added that reimbursement for a unilateral school placement is not barred because the private school chosen by a student’s parents was not on a state approved list. In Forest Grove School District v. T.A. (2009), the Court ruled that a school district may be required to reimburse parents for private school tuition even in situations in which the child had not been identified as being eligible for services under the IDEA. Special education administrators and teacher, therefore, should recognize that if they fail in their duty to provide FAPE or in fulfilling the IDEA’s child find duties, the school district may be liable for reimbursing the parents for private school tuition.