A CADILLAC, CHEVROLET, PICKUP TRUCK, OR CONVERTIBLE: ENDREW F. V. DOUGLAS COUNTY SCHOOL DISTRICT RE-1 AND A NOT-SO-INDIVIDUALIZED EDUCATION UNDER THE “SOME EDUCATIONAL BENEFIT” STANDARD ABSTRACT The Individuals with Disabilities Education Improvement Act guar- antees a child with disabilities a free appropriate education tailored to the needs of that child through an individualized education plan. However, as the Tenth Circuit’s decision in Endrew F. v. Douglas County School District RE-1 demonstrates, courts applying the “some educational bene- fit” standard fail to properly evaluate the substantive adequacy of an In- dividualized Education Plan in light of a child’s unique needs, abilities, and circumstances. To ensure that children with disabilities receive the truly individualized education to which they are entitled, courts, state legislatures, and Congress must implement measures that encourage courts to recognize that education comes in all makes and models and varies according to the particular needs of different children. TABLE OF CONTENTS INTRODUCTION ..................................................................................... 798 I. BACKGROUND .................................................................................... 800 A. Historic Treatment of Children with Disabilities in Public Schools and Early Legislation ................................................................. 800 B. The Education for All Handicapped Children Act, the Individuals with Disabilities Education Act, and the Individuals with Disabilities Education Improvement Act .................................... 801 C. Cases Challenging the Provision of a FAPE Under the IDEIA . 803 D. Board of Education v. Rowley .................................................... 806 E. Some Educational Benefit Standard v. The Meaningful Benefit Standard ...................................................................................... 808 II. ENDREW F. V. DOUGLAS COUNTY SCHOOL DISTRICT RE-1 ................ 810 A. Facts ............................................................................................ 810 B. Procedural History ...................................................................... 811 1. District Court Opinion ............................................................ 811 2. Tenth Circuit Opinion ............................................................. 814 III. ANALYSIS ........................................................................................ 816 A. Expert Participation .................................................................... 818 1. The Importance of Experts and Parents’ Disadvantages in Cases Challenging the Substantive Adequacy of an IEP ................. 818 797 798 DENVER LAW REVIEW [Vol. 93:3 2. Shifting the Burden of Proof to Schools and Allowing Parents to Recover Expert Witness Fees ................................................ 822 B. Past Progress as an Indicator of the Substantive Adequacy of an IEP .............................................................................................. 824 1. Courts’ Evaluation of Past Progress ....................................... 824 2. Considering Progress Under the Entire Past IEP ................... 826 C. Assessing School Districts’ Responses to Behavioral Problems 828 1. Consideration of FBAs and BIPs in Endrew F. ..................... 828 2. Amending the IDEIA’s Provisions Relating to FBAs and BIPs829 CONCLUSION ......................................................................................... 831 INTRODUCTION The Individuals with Disabilities Education Improvement Act (the IDEIA) seeks to improve the education of children with disabilities with- in public school systems.1 The IDEIA requires states to provide a child with disabilities with a free appropriate public education (FAPE), which is tailored to the specific needs of the child through an Individualized Education Program (IEP).2 Although the IDEIA puts forth detailed procedural requirements that an IEP must adhere to, the statute delegates the responsibility for establishing the content of an IEP to parents and educators.3 Consequent- ly, the Supreme Court’s decision in Board of Education v. Rowley4 put forth the standard by which the substantive adequacy of an IEP is meas- ured.5 A majority of federal circuits, including the Tenth Circuit, adhere to Rowley’s “some educational benefit” standard, which requires that an IEP be “reasonably calculated to enable the child to receive [some] edu- cational benefits.”6 Under the some educational benefit standard, an IEP is only required to “provide the educational equivalent of a serviceable 1. Individuals with Disabilities Education Act, 20 U.S.C. § 1400(d) (2012) (discussing the purposes of IDEIA, including ensuring that children with disabilities receive a “free appropriate public education,” protecting children with disabilities, and assisting states and localities with providing children with disabilities an education). 2. See Endrew F. v. Douglas Cty. Sch. Dist. RE–1 (Endrew II), 798 F.3d 1329, 1332–33 (10th Cir. 2015) (noting that IDEIA makes federal education funding to states conditional “on the states’ provision of a [FAPE]” to children with disabilities and that “[IDEIA] ensures a FAPE for each child . [through] the development and implementation of an [IEP]”); see also 20 U.S.C. § 1414(d)(1)(A)(i) (describing an IEP as a written statement that is developed particularly “for each child with a disability”); 20 U.S.C. § 1414(d)(3)(A) (discussing how the IEP team, when developing an IEP, considers “the strengths of the [individual] child” and “the academic, developmental, and functional needs of the child”). 3. See Endrew II, 798 F.3d at 1332–33 (“[IDEIA] put in place detailed procedural require- ments by which a child’s IEP must be created and maintained. [H]owever, Congress ‘left the content of th[e] programs entirely to local educators and parents.’” (third alteration in original) (quoting Thompson R2–J Sch. Dist. v. Luke P., 540 F.3d 1143, 1151 (10th Cir. 2008))). 4. 458 U.S. 176 (1982). 5. Endrew II, 798 F.3d at 1333 (citing Rowley, 458 U.S. at 207). 6. Id. at 1333–34, 1338 (quoting Rowley, 458 U.S. at 207); Ronald D. Wenkart, The Rowley Standard: A Circuit by Circuit Review of How Rowley Has Been Interpreted, 247 W. EDUC. L. REP. 1, 1 (2009). 2016] THE “SOME EDUCATIONAL BENEFIT” STANDARD 799 Chevrolet” and need not “provide a Cadillac.”7 However, under Rowley, even courts adhering to the some educational benefit standard must con- sider the substantive adequacy of an IEP in light of a child’s unique needs, abilities, and circumstances.8 Therefore, courts assessing the sub- stantive adequacy of an IEP must not focus just on “Chevrolets” versus “Cadillacs.” Instead, given that every child with disabilities will require different services to receive an educational benefit,9 courts must ask whether the child needs the educational equivalent of a pickup truck, or a minivan, or a convertible. This Comment argues that, as the Tenth Circuit’s decision in En- drew F. v. Douglas County School District RE-110 demonstrates, courts applying the some educational benefit standard often fail to properly consider a child’s unique needs, abilities, and circumstances when as- sessing the substantive adequacy of an IEP. First, while courts rely on expert witness testimony to evaluate the substantive adequacy of IEPs, parents are disadvantaged in terms of retaining expert witnesses.11 To have better access to expert witness testimony concerning their child’s unique needs, abilities, and circumstances, parents could request that a school district perform an independent education evaluation (IEE) before requesting reimbursement under the IDEIA. Ultimately, however, states must shift the burden of proof to schools in IDEIA actions, or Congress must amend the IDEIA to allow parents to recover expert witness fees. Second, courts often hold that an IEP is substantively adequate if it is modeled after a past IEP under which a child made minimal progress even if, considering the child’s unique needs, abilities, and circumstanc- es, the progress under the past IEP did not afford the child any educa- tional benefit.12 Instead, courts applying the some educational benefit standard must evaluate whether a child progressed under the tutelage of the entire IEP in the classroom, rather than considering progress towards one goal or objective in isolation. Third, by refusing to consider func- tional behavior assessments (FBAs) and the substantive adequacy of behavior intervention plans (BIPs), courts fail to assess all relevant ac- tions taken by schools in response to a child’s unique needs, abilities, and circumstances.13 To ensure that courts properly account for schools’ re- sponses to behavioral problems, the IDEIA must be amended to include detailed requirements as to the contents of FBAs and BIPs and should 7. Doe v. Bd. of Educ., 9 F.3d 455, 459–60 (6th Cir. 1993) (holding that while the “Chevro- let” education offered by the child’s private school placement is most likely a better education, “the [school] is not required to provide a Cadillac, and . the proposed IEP is reasonably calculated to provide educational benefits to [the child], and is therefore in compliance with the requirements of the IDEA”). 8. See infra Section I.E. 9. See infra note 98 and accompanying text. 10. 798 F.3d 1329 (10th Cir. 2015). 11. See infra Section III.A.i. 12. See infra Section III.B.i. 13. See infra Section III.C.i. 800 DENVER LAW REVIEW