Supreme Court Clarifies IDEA’s FAPE Standard
On March 22, 2017, the U.S. Supreme Court unanimously ruled that a student’s IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” to satisfy a school’s obligation to provide students with disabilities a free appropriate public education. Endrew F. v Douglas County Sch Dist, RE-1, No. 15-827 (March 22, 2017). The decision clarifies a 35-year-old legal standard adopted by the Court in Bd of Ed of Hendrick Hudson Central School Dist v Rowley, 458 US 176 (1982).
In Rowley, the Supreme Court established a two-prong test for determining whether a school provided a student a FAPE. First, a court must inquire whether the school complied with the IDEA’s procedural requirements in developing the student’s IEP. Second, a court must determine whether, substantively, the IEP was “reasonably calculated to enable the child to receive educational benefit.”
Lower courts have interpreted the Rowley FAPE standard differently. For example, the Sixth Circuit, which includes Michigan, requires that IEPs provide students a “meaningful educational benefit gauged in relation to the potential of the child.” Deal v Hamilton County Bd of Ed, 392 F3d 840 (CA 6, 2004). The Tenth Circuit, however, has interpreted Rowley to only require an IEP that is designed to provide an “educational benefit [that is] merely . . . more than de minimis.”
Endrew F. involved a child with autism whose parents grew increasingly dissatisfied with their son’s IEPs, particularly as to how the IEPs addressed his behavior challenges. Concerned that Endrew’s progress had “essentially stalled,” the parents unilaterally enrolled him in a private school for students with autism. Endrew flourished at the new school. His parents then filed a due process complaint against the public school, seeking reimbursement for private school tuition and alleging that the school had denied Endrew a FAPE.
The school prevailed before the state educational agency and in district court. The parents appealed to the Tenth Circuit. Applying the de minimis standard, the court concluded that the school’s IEP had been “reasonably calculated to enable Endrew to make some progress.” According to the Tenth Circuit, the school did enough to provide Endrew a FAPE.
In rejecting the Tenth Circuit’s approach, the Supreme Court clarified the Rowley standard. The Court held that as a “general standard,” the IDEA requires an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court noted that this standard is “markedly more demanding” than the Tenth Circuit’s “merely . . . more than de minimis test.”
The Court acknowledged, however, that developing an appropriate IEP requires a “prospective judgment by school officials” with the “input of the child’s parents or guardians” and that any judicial review of an IEP “must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.”
Even so, the Court found that an IEP must “aim to enable the child to make progress” given IDEA’s focus on “specially designed” instruction to meet the “unique needs” of the child through an “individualized” education program. The Court, however, rejected the parents’ argument that FAPE means “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”
The Court also explained that its Rowley decision “sheds light on what appropriate progress will look like in many cases.” For students with disabilities educated in the regular classroom, an IEP should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” For students who are not fully included in the regular classroom, grade level advancement may not be an appropriate goal, but the IEP still must be “appropriately ambitious in light of [the student’s] circumstances..” While each child’s goals may be different, according to the Court, all children “should have the chance to meet challenging objectives.”
In concluding its opinion, the Court again emphasized that the appropriateness of a student’s IEP ultimately turns on the “unique circumstances of the child for whom it was created.” It reiterated its admonishment in Rowley that courts should not view the “absence of a bright-line rule” for evaluating an IEP’s adequacy as “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” The Court further explained that while this deference is “based on the application of expertise and the exercise of judgment by school authorities,” school officials still must “be able to offer a cogent and responsive explanation for their decisions” consistent with the Court’s opinion.
We anticipate that the Endrew F. decision may cause an increase in special education litigation as parents and their advocates assert that this ruling establishes a “new” or “higher” FAPE standard. Because the Sixth Circuit, which includes Michigan, has long applied a FAPE standard that requires more than a showing of de minimis educational benefit, Endrew F.’s impact on Michigan schools remains to be seen.
Nonetheless, school officials must familiarize themselves with the Endrew F. decision and continue to ensure that IEPs include challenging goals and that they are designed to address the unique needs of the individual students for whom they are created.