Endrew F. V. Douglas County School District –9

Original Article

, Vol. XX, No. X, pp. 1 FAPE and the U.S. Supreme Court Mitchell L. Yell and David F. Bateman TEACHING Exceptional Children

TEACHING EXCEPTIONAL CHILDREN | MON/MON 2016 1 On March 22, 2017, the U.S. Supreme Rowley decision. Fourth, we present the followed when determining that a Court announced its decision in Endrew history of the Endrew F. case, the oral student had a disability, enforcing F. v. Douglas County School District. arguments before the Supreme Court, compulsory attendance laws, and This case—coming 35 years after the and the Court’s unanimous ruling in alleviating biases against certain Supreme Court’s first special education this case. Finally, we discuss students (Diana v. State Board of decision in Board of Education of the implications of this decision for special Education of California, 1970; Mills v. Hendrick Hudson Central School education. Board of Education of the District of District v. Rowley (1982)—addressed Columbia, 1972; Pennsylvania the question of how much educational Association for Retarded Children v. the The IDEA Definition of FAPE benefit public schools are required to Commonwealth of Pennsylvania, 1972). provide to students with disabilities As recently as the 1970s, it was legal In response, Congress passed and who are eligible for special education to prevent students with disabilities President Gerald Ford signed the services under the Individuals with from attending school (Johnson, EAHCA into law. This law, often Disabilities Education Act (2006) to 1986). The Code of Virginia (1973), for referred to as Public Law 94-142 (later confer a free appropriate public example, allowed for the exclusion of amended as IDEA), provided federal education (FAPE). In its unanimous students who were physically or financial assistance to states that opinion, the Supreme Court ruled that mentally incapacitated from school. submitted plans demonstrating that in developing student individualized Indeed, the history of educational they had in effect a policy ensuring education programs (IEPs), school services for students with disabilities is that all eligible students with districts must aim to enable students to filled with stories and examples of disabilities would receive a FAPE, as make academic and functional progress wholesale exclusion and legal denials. well as other educational rights, such in light of their circumstances. In this Often, the best that a parent could as procedural safeguards and the right article, we examine the Act’s definition hope for was some form of educational to be educated in the least restrictive of FAPE, review the Supreme Court’s service in a state-run institution environment (Yell, 2016). Under these first FAPE ruling in Board of Education (Scheerenberger, 1983). laws, eligible students with disabilities v. Rowley, consider the different post- As a result of several court cases would therefore have the opportunity Rowley FAPE standards developed in and pressure from parents, Congress to receive appropriate special education the U.S. Courts of Appeals, explain the began to investigate educational services and could no longer be Supreme Court’s unanimous ruling in services for students with disabilities in excluded from schools because of their this case, and discuss implications of the 1970s. Here is a statement from its disabilities. FAPE was to be tailored to this decision for special education. findings: meet the unique needs of the student with disabilities via an IEP, developed Thirty-five years ago, the U.S. Supreme Providing educational services will by the student’s parents and school Court announced its decision in Rowley ensure against persons needlessly personnel working together. being forced into institutional (1982). The case, which was the first The definition of FAPE in IDEA has settings. One need only look at special education case to be heard by remained unchanged since 1975. FAPE public residential institutions to find is special education and related the Court, ruled on the question of thousands of persons whose services that what constituted FAPE for students families are no longer able to care with disabilities under the Education for them and who themselves have for All Handicapped Children Act of received no educational services. (A) are provided at public expense, 1975 (EAHCA), which was retitled as Billions of dollars are expended under public supervision and IDEA in 1990. On March 22, 2017, the each year to maintain persons in direction, and without charge, U.S. Supreme Court announced its these subhuman conditions. (United (B) meet standards of the state decision in Endrew F., which also States Code Congressional and educational agency, addressed FAPE. These two cases Administrative News, 1975, p. 1433) (C) include an appropriate preschool, should be read in tandem, as they are elementary, or secondary school extremely important in providing Members of Congress realized that education in the state involved, special educators with guidance something needed to be developed to and regarding what is an appropriate provide standard uniform guidelines to (D) are provided in conformity with education for students with disabilities. the states regarding the identification the individualized education In this article, we first define IDEA's and education of students with program. (IDEA, 20 U.S.C. § 1401 FAPE requirement. Second, we review disabilities. The report of the United [a][9][A–D]) the Supreme Court’s first FAPE ruling States Code Congressional and in Rowley. Third, we describe FAPE Administrative News contributed to FAPE is the foundation of special rulings by the U.S. Circuit Courts of this, as did several court cases. These education and is individually Appeals and how the circuit courts court cases helped to clarify the developed for each student with a differed in their interpretations of the specific procedures that needed to be disability who is eligible for special

2 COUNCIL FOR EXCEPTIONAL CHILDREN education services under IDEA through from the Rowleys, the federal district the IDEA, thus meeting Part 1 of the the IEP process. A student’s FAPE is court and U.S. Court of Appeals test (i.e., did the school district comply therefore (a) developed and determined that the district had failed with the procedures of the law?); memorialized through the IEP, (b) to provide Amy with FAPE, because it second, that Amy had received an targeted toward meeting his or her did not offer her an opportunity to appropriate education because she was unique educational needs, and (c) achieve her full potential at a level performing better than many of the designed to confer educational benefit. “commensurate with the opportunity children in her class and was In addition, the responsibility to make provided to other children” (Rowley, advancing easily from grade to grade FAPE available rests with the public 1982, p. 186). The school district (Smith, 1996), thus meeting Part 2 of school district in which the student appealed to the U.S. Supreme Court, the test (i.e., was the IEP reasonably resides and, ultimately, with the state which handed down the decision on calculated to provide educational (Bateman, 2017). June 28, 1982. benefit?). In short, the Supreme Court found that the district had provided Amy Rowley with FAPE. It is The first principle of the Rowley test established interesting that, in a footnote to the majority opinion, Chief Justice the importance of adherence to the procedural Rehnquist wrote, “We do not hold aspects of the IDEA. today that every handicapped child who is advancing from grade to grade in a regular public school system is Soon after the EAHCA was passed In the majority opinion, Justice automatically receiving a free in 1975, controversy arose regarding William Rehnquist noted that the appropriate public education” (Rowley, what exactly constituted FAPE. Courts statutory definition of FAPE was cryptic 1982, p. 207). Rather, the FAPE were called on to settle disputes rather than comprehensive. Further, standard could be determined only on between parents and school districts Justice Rehnquist wrote that FAPE a case-by-case basis. regarding the definition of a FAPE consisted of educational instruction The first principle of the Rowley (O’Hara, 1985). In 1981, the U.S. designed to meet the unique needs of a test established the importance of Supreme Court agreed to hear a case student with disabilities, supported by adherence to the procedural aspects from the Hendrick Hudson School such services as needed to permit the of the IDEA. Clearly, a hearing officer District in Montrose, New York. The student to benefit from instruction. or court could rule that a school case was to be the first special According to the Court, Congress’s district had denied FAPE if it had not education case heard by the Supreme “intent . . . was more to open the door adhered to the procedural safeguards Court. A question that the Court was of public education to handicapped in the IDEA. Language added to the called on to answer was “What is children on appropriate terms than to IDEA in 2004, however, indicated that meant by the [EAHCA’s] requirement guarantee any particular level of only the most serious procedural of a free appropriate public education?” education once inside” (Rowley, 1982, errors committed by school district (Rowley, 1982, p. 180). p. 192). The Court also ruled that the personnel would lead to a denial of special education services provided to FAPE. These most serious procedural a student had to be “sufficient to violations occur when they (a) Rowley (1982) confer some educational benefit upon impede the child’s right to FAPE, (b) Amy Rowley was a student in the the handicapped child” (p. 200). significantly impede the parent’s Hendrick Hudson School District. The Court developed a two-part test opportunity to participate in the Although she had a severe hearing to determine if a school district had decision-making process regarding the impairment, Amy did very well in her provided a student with FAPE: “First, provision of a FAPE, or (c) cause a kindergarten class. In the fall of Amy’s has the state complied with the deprivation of educational benefit first-grade year, a school-based team procedures of the Act? And second, is (IDEA Regulations, 2012, 34 C.F.R. § and Amy’s parents developed her IEP. the individualized education program 300.513[a][2][i–iii]). Amy’s parents, who were also deaf, developed through the Act’s procedures The second principle of the Rowley agreed with much of the IEP but also reasonably calculated to enable the test was substantive. The principle insisted that Amy be provided a child to receive educational benefits?” requires hearing officers and courts to qualified sign language interpreter. The (Rowley, 1982, pp. 206–207). If these determine whether the IEP developed school district denied the request, requirements were met, a school had by the school was reasonably whereupon Amy’s parents filed for a complied with FAPE requirements. calculated to enable the child to due process hearing (Smith, 1996). The Court applied the two-part test receive educational benefits. Because Although the due process hearing to the Rowley case and held the Amy Rowley was academically able officer and state review officer found following: first, that the district had in and was achieving more than the for the school district, upon an appeal fact complied with the procedures of average child in her class, the Supreme

TEACHING EXCEPTIONAL CHILDREN | MON/MON 2016 3 Court did not need to determine how Rowley did very well in her general benefit must be gauged in relation to a much benefit would be enough to education class, the Supreme Court child’s potential” (p. 247). meet the FAPE standard; clearly, Amy was able to avoid addressing the The U.S. Court of Appeals for the was making progress. The Court thus substantive second principle of the Sixth Circuit adopted the Third Circuit determined that the district had met its Rowley test and thus concentrated on court’s higher education benefit obligation to develop an IEP that was the procedural part of the test. In this standard in Deal v. Hamilton County reasonably calculated to provide case before the Third Circuit, however, Board of Education (2004), holding that educational benefit, because Amy was the judges had to address how much a “mere finding that an IEP had passing from grade to grade. This benefit was required to meet the provided more than trivial interpretation of educational benefit educational benefit standard for the advancement is insufficient” (p. 862). was controversial among the Court’s plaintiff, Christopher Polk. The Sixth Circuit court also observed own members. For example, in a Christopher was a 14-year-old that (a) in evaluating whether dissent joined by Justice William student with severe mental and educational benefit is meaningful, the Brennan and Justice Thurgood physical disabilities. Christopher’s degree of benefit must be gauged in Marshall, Justice Byron White wrote, parents alleged that the school had relation to a student’s potential and (b) failed to provide FAPE because he was courts should adhere to “Congress’s It would apparently satisfy the not provided physical therapy. The desire not to set unduly low Court’s standard of “access to school district prevailed at the due expectations for disabled children” (p. specialized instruction and related process hearing, the state review, and 864). Similarly, the U.S. Circuit Court services which are individually the federal district court. At these of Appeals for the Fifth Circuit ruled, in designed to provide educational levels, the hearing officer and judges Cypress-Fairbanks Independent School benefit to the handicapped child” ruled that Christopher’s special District v. Michael F. (1997), that the for a deaf child such as Amy to be given a teacher with a loud voice, education program conferred FAPE educational benefit “cannot be a mere for she would benefit from that because the Rowley standard held that modicum or de minimis; rather, an IEP service. The Act requires more. the conferral of any degree of must be likely to produce progress, not (Rowley, 182, p. 215) educational benefit, no matter how regression or trivial educational small, could qualify as an appropriate advancement” (pp. 247–248). Because the Supreme Court in Rowley education. Christopher’s parents filed Thus, three circuit courts adopted a did not directly address what an appeal with the U.S. Court of higher standard for educational benefit. constituted educational benefit, other Appeals for the Third Circuit, which However, a number of the other circuit courts have had to grapple with the reversed the decision of the lower courts of appeals adopted a lower question. court, finding that educational benefit standard when ruling on FAPE cases. This standard U.S. Courts of Appeals and the Congress did not write a blank has come to be known as the de Rowley Benefit Standard check, neither did it anticipate that minimis (i.e., of minimum importance, [school districts] would engage in The second part of the Rowley test trifling, or trivial) standard. The U.S the idle gesture of providing special Court of Appeals for the First Circuit questions whether the IEP is education designed to confer only had no particular position on the reasonably calculated to enable the trivial benefit. . . . Congress educational benefit question, and the student to receive educational benefits. intended to afford children with This has proven to be a more difficult special needs an education that U.S Court of Appeals for the Ninth determination for hearing officers and would confer meaningful benefit. Circuit had mixed rulings on judges. In fact, FAPE cases that have (Polk, 1988, p. 184) educational benefits. reached the U.S. Courts of Appeals (the In a later case, Ridgewood Board of level beneath the Supreme Court) have Lower De Minimis Standard led to differences in interpretations of Education v. N.E. (1999), the Third the educational benefit standard. Circuit again used its higher standard The U.S. Courts of Appeals for the of meaningful benefit when it vacated Second, Fourth, Seventh, Eighth, Tenth, a decision by a lower court, holding and Eleventh Circuits have interpreted Higher Meaningful Benefit that when school districts provide educational benefit as requiring only Standard special education services conferring that school districts provide special In Polk v. Central Susquehanna merely more than trivial educational education services that confer Intermediate Unit 16 (1988), the U.S. benefit, that degree of benefit “is not educational benefit that is slightly more Court of Appeals for the Third Circuit enough to satisfy the FAPE standard” than trivial or de minimis. The most discussed the Rowley decision and the (p. 247). The Third Circuit court recent of these rulings—and the case IDEA’s requirement to provide a further explained that a student’s IEP that was heard by the U.S. Supreme “meaningful” education. The Third must provide “significant learning and Court—was from the U.S. Court of Circuit court noted that because Amy meaningful benefit . . . [and] the Appeals for the Tenth Circuit in Endrew

4 COUNCIL FOR EXCEPTIONAL CHILDREN F. v. Douglas County School System IDEA. The circuit court noted that the hearing officer and district court erred (2015). hearing officer found that the school because they failed to consider that Endrew, called Drew by his parents, district’s IEPs for Drew included little Drew’s IEPs did not address his was diagnosed with autism and or no progress-monitoring data or escalating problem behaviors. However, attention deficit hyperactivity disorder. progress reporting and that, when the circuit found that Drew’s IEPs had Drew attended the Douglas County progress was reported, it was lacking in conferred some educational benefit and Schools in Colorado from preschool detail and limited to conclusory that both the hearing officer and the through fourth grade and had an IEP in statements. The circuit court district court had relied on evidence effect for all of those years. He had a recognized the importance of that Drew progressed somewhat on very difficult fourth-grade year. His monitoring student progress and did past IEPs as proof that his fifth-grade parents rejected Drew’s IEP, asserting not endorse the school district’s efforts; IEP was adequate. The circuit court that he was not making meaningful nonetheless, the court found that such opinion noted that this case was a progress and that the IEP for fifth grade was essentially the same one offered Drew in fourth grade. The parents The justices seemed to be wary of the de minimis decided to place Drew in the Firefly Autism House, a special school for or trivial educational benefit being an appropriate students with autism. Drew made standard for reviewing a school district’s provision academic, social, and behavioral of FAPE. progress at his new school. Drew’s parents filed for a due process hearing in which they contended that the Douglas County errors did not influence Drew’s “close call, but we find there are School District had not provided FAPE; progress and, as such, did not sufficient indications of Drew’s past therefore, they requested constitute a procedural violation progress to find that the IEP rejected by reimbursement for tuition and related denying Drew FAPE. Second, according the parents was, in fact, substantively expenses for Drew’s private school to the parents, the school district failed adequate under our prevailing placement. The impartial hearing to properly assess Drew’s problem standard” (Endrew, 2015, p. 23). officer who presided over the due behavior and put into action an In short, the circuit court held that process hearing relied on the Rowley appropriate plan to address it. The even though Drew was thriving at the decision in holding that a school court recognized that Drew exhibited Firefly Autism House, Douglas district need only develop and multiple problem behaviors that County School District was not implement an IEP that provided a inhibited his ability to learn in the responsible for tuition student with some educational benefit classroom; nevertheless, because the reimbursement, because Drew had to confer FAPE. The hearing officer school district personnel had generally made some educational progress found that the district had provided considered his problem behavior, they while he was in the district. Drew with some academic benefit and met the requirements of the law. The According to the court, because IDEA therefore FAPE. In response, the court found that IDEA requires that “in requires that educational benefit parents filed suit in the U.S. District the case of a child whose behavior provided a student in special Court, which affirmed the hearing impedes the child’s learning or that of education be “merely more than de officer’s decision, finding that Drew others, consider the use of positive minimis,” the school district had had made at least minimal progress, behavioral interventions and supports, provided FAPE; therefore, Drew’s which was all that IDEA required. and other strategies, to address that parents were denied tuition Drew’s parents then appealed to the behavior” (20 U.S.C. § 1414 [d][3][B] reimbursement. (The phrase “merely U.S. Appeals Court for the Tenth [1]) and because school personnel had more than de minimis” was first used Circuit. considered Drew’s behavior problems, by then-Judge Neil Gorsuch in his Drew’s parents contended that the they had not committed a procedural opinion in the case Thompson R2J hearing officer and district court failed violation. School District v. Luke P., 2008). to recognize that the school district had Drew’s parents also asserted that In response, Drew's parents made serious procedural and the school district committed two appealed to the U.S. Supreme Court. substantive errors resulting in the substantive violations that denied Drew The question presented to the Court denial of FAPE to Drew. According to FAPE. First, the school district failed to was “What is the level of educational his parents, the school district provide FAPE because all of Drew’s benefit school districts must confer on committed several procedural recent IEPs were materially the same children with disabilities to provide violations. First, the school district and he had made no progress toward them with a free appropriate public failed to provide Drew’s parents with his goals and objectives. Second, education guaranteed by the reports on his progress as required by Drew’s parents asserted that the Individuals with Disabilities Education

TEACHING EXCEPTIONAL CHILDREN | MON/MON 2016 5 Act?” (SCOTUSblog, 2017). On disabilities are receiving sufficient deference will depend on school September 29, 2016, the Supreme Court educational benefits to satisfy the personnel providing a student’s parents announced that it would hear the case. requirements of IDEA. In the opinion, input on issues such as the requisite Justice Roberts observed, “That more degree of progress that the student’s Endrew F.: The U.S. Supreme difficult problem is before us today” IEP should pursue. Court and FAPE (Endrew, 2017, p. 1). In the eight justices' unanimous The U.S. Supreme Court heard oral IEP Is the Centerpiece of a ruling, delivered by Chief Justice John arguments in the Endrew F. case on Student’s Program of Special Roberts, the Court held that “to meet its January 11, 2017. During oral Education arguments, the justices seemed to be substantive obligation under the IDEA, wary of the de minimis or trivial a school must offer an IEP reasonably “An IEP is not a form document” educational benefit being an calculated to enable a child to make (Endrew, 2017, p. 12) to be written to appropriate standard for reviewing a progress appropriate in light of the satisfy IDEA’s requirements and then school district’s provision of FAPE. For child’s circumstances” (Endrew, 2017, put away and promptly forgotten. example, Justice Breyer noted that even p. 15). The Supreme Court vacated the Rather, according to the U.S. Supreme if the phrase “some benefit” in the Tenth Circuit Court’s decision in the Court, the IEP is the “centerpiece” Rowley decision was ambiguous, he Endrew F. case and remanded the case (Honig v. Doe, 1988, p. 311) and concluded that the combination of back to the Tenth Circuit Court to apply “modus operandi” (Burlington School “some benefit” and “make progress” the new standard. Committee v. Department of Education results in a more stringent standard of Massachusetts, 1985, p. 391) of than “more than merely de minimis,” Importance of Parental IDEA’s special education delivery much along the lines of what the Involvement in IEP system for eligible students with federal government had proposed in an Development disabilities. amicus brief by the Solicitor General Bateman (2017) asserted that “the most Justice Roberts referred to the IEP as (2017). (An individual or organization basic IEP requirement is that a a “fact-intensive exercise” (Endrew, that is not a part of the actual case student’s parents be full, equal, and 2017, p. 11) in which school personnel submits an amicus brief, also called “a meaningful participants in the and a student’s parents collaborate to friend of the court” brief, to a court. development of their child’s IEP, along develop and implement a special The purpose of the brief is to provide with school district personnel” (p. 87). education program for “pursuing information to the court.) Congress emphasized this central role academic and functional advancement” In addition, Justice Ginsburg noted of parents in developing their child’s (p. 11). The focus of the IEP is on the that there was no real precedent for the IEP and ensuring the provision of FAPE unique needs of an individual student de minimis standard, and Justice Alito in the finding and purposes section of and is developed only after careful asked where the de minimis standard the IDEA: consideration of the student’s present came from and, if it was not part of levels of academic achievement and functional performance, his or her IDEA, then what prevented the Court Almost thirty years of research and disability, and the student’s “potential from coming up with a new standard. experience has demonstrated that This was brought up several times, the education of children with for growth” (p. 12). The Court ruled most notably by Justices Ginsburg and disabilities can be made more that it is through the IEP that a FAPE is Kagan, who wanted the educational effective by–strengthening the role tailored to meet the unique needs of an benefit standard to be more than de and responsibility of parents and individual student. minimis. Specifically, they talked about ensuring that families . . . have According to the Court, a student’s a “standard with a bite.” Justice meaningful opportunities to IEP does not need to be ideal; rather, it Sotomayor summed up the importance participate in the education of their needs to be reasonable and aimed at children. (20 U.S.C § 1400[c][5][B]) of the decision when she noted that conferring educational progress. For IDEA provided enough information to students with disabilities who are set a clear standard and that the The Endrew F. decision emphasized integrated in general education Court’s challenge would be coming up the central role of a student’s parents classrooms, progress may mean earning with the right words. in developing special education passing grades and advancing from grade The Supreme Court handed down programming. Justice Roberts noted to grade. In a footnote to the decision, the ruling in this extremely important that the IEP process is informed by the however, Justice Roberts noted that this case on March 22, 2017. The Court’s expertise of school personnel but also is not an inflexible rule and that not opinion, which was written by Chief by the input of the student’s parents. every student with disabilities who Justice Roberts, noted that 35 years The decision also confirmed that advances from grade to grade is previously (in Rowley), the Court had school personnel and parents must necessarily receiving a FAPE. He stated declined to endorse any one standard collaborate on the development of a further that whenever a student with for determining when students with student’s IEP and that judicial disabilities is not fully integrated, passing

6 COUNCIL FOR EXCEPTIONAL CHILDREN from grade to grade is not an indication Rowley as rejecting the notion of equal a child to make appropriate progress in that a student has received FAPE; rather, opportunity because of the unworkable light of the child’s circumstances. the student’s goals should be appropriate standards, measurement, and Thus, the judgment of appropriate in light of his or her circumstances. comparisons that would be required. progress is made individually, based on Thus, whether the student’s IEP confers Thus, the High Court declined to the student’s own circumstances, and FAPE depends on the unique interpret FAPE in a manner that was at is judged on a prospective basis. circumstances of that student. odds with the Rowley decision. Second, in Endrew F., the Supreme In the Supreme Court’s opinion, it Court rejected the maximizing standard was clear that all eight justices were A General Standard—Not a that the Court had previously rejected willing to drive a stake through the Formula in Rowley. Drew’s parents had sought a heart of the de minimis standard. In higher standard than that delivered by The Supreme Court referred to the fact, according to the Court, the the Court. Instead, the justices focused inquiry that it developed as a “general standard that the justices developed on the idea that children with standard not a formula” (Endrew, 2017, was “markedly more demanding than disabilities should receive an education p. 14)—that is, to meet its substantive the ‘merely more than de minimis’ test that shows progress in light of their obligation under IDEA, a school must applied by the Tenth Circuit” (Endrew, unique disabilities and circumstances. offer an IEP reasonably calculated to 2017, p. 14). This means that the lower Third, the Endrew F. decision does enable a child to make progress standard—which had been embraced not replace or overturn the Rowley appropriate in light of the child’s by the U.S. Court of Appeals for the decision; rather, it clarifies Rowley. In circumstances. Although the standard Second, Fourth, Seventh, Eighth, Tenth, fact, the two-part Rowley test is now is clearly higher than the de minimis and Eleventh Circuits—no longer meets the two-part Rowley/Endrew test. educational benefit standard, it is not a the new standard developed by the When applied to school districts, the prescription for hearing officers and Supreme Court. The demise of the de new two-part test is as follows: judges to follow when determining if a minimis standard was announced in school district has conferred Justice Roberts' decision: Part 1: Has the school district educational benefit; moreover, the complied with the procedures of inquiry did not provide a model of an When all is said and done, a student the IDEA? appropriate special education program. offered an educational program Part 2: Is the IEP reasonably Rather, the decision means that hearing providing “merely more than de calculated to enable a child to officers and judges will need to focus minimis” progress from year to year make appropriate progress in on the appropriateness of an IEP on a can hardly be said to have been light of a student’s case-by-case basis and judge its offered an education at all. For circumstances? children with disabilities, receiving adequacy vis-à-vis “the unique instruction that aims so low would circumstances of the child for whom it Fourth, the Supreme Court settled be tantamount to “sitting idly . . . was created” (p. 16). As Justice the split among the U.S. Circuit Courts awaiting the time they were old Roberts wrote, enough to drop out.” The IDEA of Appeal with respect to the educational benefit question. States in demands more. (p. 14; emphasis a reviewing court may fairly expect circuits that had the lower de minimis added) [school officials] to be able to offer a cogent and responsive explanation standard will see greater change in the As Justice Roberts aptly wrote, “a for their decisions that shows the manner in which their hearing officers substantive standard not focused on IEP is reasonably calculated to and courts rule on FAPE issues. Now, student progress would do little to enable the child to make progress there is a higher standard expected in remedy the pervasive and tragic appropriate in light of his all states, although the extent of academic stagnation that prompted circumstances. (p. 16) change varies: Congress to act” in 1975 (p. 11). Although the Supreme Court Implications of Endrew F. •• Most change expected from the justices rejected the lower de minimis What are we to make of this extremely previous educational benefit standard, they did not embrace the important special education decision standard (states in a circuit with a higher standard requested by Drew’s by the U.S. Supreme Court? There are lower standard, no standard, or a parents, who asserted that IDEA six major takeaways from the Endrew mixed standard): Alabama, Alaska, requires schools to provide students F. decision: Arizona, Arkansas, California, with disabilities an education that First, the Court rejected the de Colorado, Connecticut, Florida, enables them to attain self-sufficiency minimis or trivial standard for Georgia, Idaho, Illinois, Indiana, and that is substantially equal to those determining educational benefit and Iowa, Kansas, Maine, Maryland, opportunities provided to students replaced it with an educational benefit Massachusetts, Minnesota, without disabilities. Justice Roberts standard that requires schools to offer Missouri, Montana, Nebraska, New cited the Supreme Court’s ruling in an IEP reasonably calculated to enable Hampshire, Nebraska, Nevada, New

TEACHING EXCEPTIONAL CHILDREN | MON/MON 2016 7 Figure 1. Top 10 implications from Endrew F.

1. The IEP is the cornerstone of a student’s educational program and the blueprint of a student’s FAPE. 2. Adhere to the IDEA’s procedures when developing students’ IEPs. 3. Parents play an important role in their child’s education, are vital team members, and must be involved in a meaningful way in the development of their child’s IEP. 4. Assessments must be relevant, meaningful, and address all of a student’s needs. 5. Annual IEP goals should be ambitious, challenging, measurable, and assessed. 6. Special education programming must be designed to enable a student to make appropriate progress in light of the student’s circumstances and must be clearly specified in a student’s IEP. 7. Monitor student progress in a systematic manner and regularly report student progress to his or her parents. 8. Make instructional changes when data indicates a student is not progressing toward his or her goals. 9. The burden is on professionals to justify the decisions they make on a student’s IEP regarding his or her progress. 10. Keep abreast of legal developments in special education. Three excellent resources are the Council for Exceptional Children’s Policy Insider (www.cec.sped.org), the Special Education Law Blog by Mitchell Yell (www.spedlawblog.com), and the Special Education Law Blog by Jim Gerl (www.specialeducationlawblog.blogspot.com).

IEP = individualized education program; FAPE = free appropriate public education; IDEA = Individuals With Disabilities Education Act.

Mexico, New York, North Carolina, collaboration with a student’s parents education (pp. 87–104). Philadelphia, North Dakota, Oklahoma, Oregon, and should meet the procedural PA: Taylor & Francis/Routledge. Rhode Island, South Carolina, South requirements of the IDEA. Moreover, Board of Education of the Hendrick Hudson Dakota, Utah, Vermont, Virginia, IEPs must (a) be based on relevant and School District v. Rowley, 458 U.S. 176 Washington, West Virginia, meaningful assessments, (b) include (1982). Burlington School Committee v. Department Wisconsin, Wyoming ambitious but reasonable measurable of Education of Massachusetts, 471 U.S. •• Least change expected from the annual goals, (c) be composed of 359 (1985). previous educational benefit special education and related services Code of Virginia, § 22.275.3 (1973). standard (states in a circuit with a that are designed to confer benefit, and Cypress-Fairbanks Independent School higher standard): Delaware, (d) involve the collection of relevant District v. Michael F., 118 F.3d 245 (5th Kentucky, Louisiana, Michigan, and meaningful data to monitor Cir. 1997). Mississippi, New Jersey, Ohio, student progress. School district Deal v. Hamilton County Board of Pennsylvania, Tennessee, Texas personnel should be able to (a) react Education, 392 F.3d 840 (6th Cir. 2004). accordingly to the data that they collect Diana v. State Board of Education of Fifth, the full implications of the and (b) demonstrate and validate California, CA 70 RFT (N.D. Cal. 1970). Endrew F. decision will not become growth through their progress- Education for All Handicapped Children Act, Pub. L. No. 94-332 (1975). clear until hearing officers and judges monitoring data. Figure 1 depicts the Endrew F. v. Douglas County School apply the new two-part Rowley/Endrew implications of the Endrew F. decision test to the facts presented in future District, 798 F. 3d 1329 (10th Cir. 2015). for special education teachers and Endrew F. v. Douglas County School FAPE litigation. One of the first administrators. District, 580 U.S. ____ (2017). indications of how the new standard The Endrew F. decision announced a Honig v. Doe, 479 U.S. 1084 (1988). may be applied will likely be decided new FAPE standard for determining Individuals with Disabilities Education Act, in the U.S. Court of Appeals for the educational benefit. Thus, there is a 20 U.S.C. §§ 1400 et seq. (2006 & Supp. Tenth Circuit, because the Supreme new, higher benchmark for V. 2011). Court remanded the Endrew F. decision implementation of a student’s IEP, Individuals with Disabilities Education Act back to the Tenth Circuit to decide the which now must be designed to confer Regulations, 34 C.F.R. § 300 (2012). case in light of the new Supreme Court more than just some educational Johnson, T. P. (1986). The principal’s guide to the educational rights of handicapped FAPE standard. The Endrew F. decision, benefit. New IEPs must be crafted to students. Reston, VA: National Association however, provides clearer guidance to provide measurable benefit given a the courts and to school districts in of Secondary School Principals. student’s capabilities. Mills v. Board of Education of the District assessing the appropriateness of of Columbia, 348 F. Supp. 866 (D.D.C. students’ IEPs. References 1972). Sixth, the effect of this ruling on Bateman, B. D. (2017). Individualized O’Hara, J. (1985). Determinants of an special education personnel seems to education programs for children with appropriate education under 94-142. be straightforward. IEPs should be disabilities. In J. M. Kauffman & D. P. Education Law Reporter, 27, 1037– developed through meaningful Hallahan (Eds.), Handbook of special 1045.

8 COUNCIL FOR EXCEPTIONAL CHILDREN Pennsylvania Association for Retarded .scotusblog.com/case-files/cases/ the oral arguments and opinion, briefs of the Children v. the Commonwealth of endrew-f-v-douglas-county-school- petitioners and respondents, and 17 amicus Pennsylvania, 343 F. Supp. 279 district/ briefs. (E.D. Pa. 1972). Thompson R2J School District v. Luke P., We were present at the oral arguments Polk v. Central Susquehanna Intermediate 540 F.3d 1143 (10th Cir. 2008). for Endrew. The audio recordings can be Unit 16, 853 F.2d 171 (3d Cir. 1988). United States Code Congressional and read at https://www.supremecourt.gov/ Ridgewood Board of Education v. N.E., 172 Administrative News. (1975). St. Paul, oral_arguments/argument_ F.3d 238, 247 (3d Cir. 1999). MN: West. transcripts/2016/15-827_gfbh.pdf. Scheerenberger, R. C. (1983). A history Yell, M. L. (2016). The law and special of mental retardation. Baltimore, MD: education (4th ed.). Upper Saddle River, Mitchell L. Yell, Fred and Francis Lester Brookes. NJ: Pearson. Palmetto Chair of Teacher Education, SCOTUSblog. (2017). Petition for a writ University of South Carolina, Columbia; of certiorari. Retrieved from http:// David F. Bateman, Professor, Shippensburg www.scotusblog.com/wp-content/ Authors’ Notes University, Pennsylvania. uploads/2016/05/15-827-Petition-for- SCOTUSblog.com is a blog focused on the U.S. Certiorari.pdf Supreme Court. Interested readers can find a Address correspondence concerning this Smith, R. C. (1996). A case about Amy. wealth of information on this website. For article to Mitchell L. Yell, University of South Philadelphia, PA: Temple University example, the SCOTUSblog site on the Endrew Carolina, 235-G Wardlaw, Columbia, SC Press. case (http://www.scotusblog.com/case-files/ 29208-0001, USA (e-mail: [email protected]). Solicitor General. (2017). Brief for the United cases/endrew-f-v-douglas-county-school- States as amicus curiae to U.S. Supreme district/) contains the Supreme Court’s TEACHING Exceptional Children, Court in Endrew F. v. Douglas City opinion, the opinion of the U.S. Court of Vol. XX, No. X, pp. 1–9. Schools. Retrieved from http://www Appeals for the Tenth Circuit, blogs analyzing Copyright 2017 The Author(s).

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