by Daniel T. S. Heffernan
“Anxiously awaiting” was an apt description of the feeling among the lawyers who represent school districts and families of the approximately two hundred thousand students currently eligible for special education in Massachusetts, as they waited for the Supreme Court’s decision in Endrew F. v. Douglas County, 137 S.Ct. 988 (2017). The Court was expected to delineate the level of services school districts must provide to students with special needs, an issue that it had not addressed in-depth since Board of Education v. Rowley, 458 U.S. 176 (1982).
The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., provides that each special education eligible student must receive a “free appropriate public education” (“FAPE”). FAPE includes special education and related services that are provided at public expense and under public supervision, and that meet the state’s education standards. The school district must provide special education and related services “in conformity with the [student’s] individualized education program,” or IEP. §1401(9)(D). This IEP is “the centerpiece of the statute’s education delivery system for” the eligible student. Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP must describe the student’s present level of performance and must detail measurable goals for the student and how their progress is to be gauged.
In assessing the adequacy of the school district’s IEP for a particular student, the key inquiry is whether the IEP will enable the student to make “effective progress.” The Court first addressed the “effective progress” standard in Rowley. The student in Rowley received her special education services and accommodations in a regular education setting (“inclusion” program), was performing better than many others in her class, and was advancing easily from grade to grade. The district argued that FAPE requirements were merely aspirational while the parents pushed for additional programming, arguing that districts were required to provide students with disabilities the educational opportunities that were exactly equivalent to their non-disabled peers. The Rowley Court charted a middle path, requiring school districts to provide an IEP that was “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. The Court noted that for students in regular-education classes, an IEP may generally be required to facilitate grade advancement. However, recognizing the wide spectrum of students with IEPs, the Court refrained from establishing “any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.” Id. at 202.
In in Endrew F., a student with autism was educated in Colorado’s Douglas County School District from preschool through fourth grade. Dissatisfied with his progress, his parents placed him in a private special education school and sought reimbursement and prospective funding for that placement. The key issue in the dispute was whether Endrew would make effective progress in the public school program that was essentially a continuation of the programming he had been receiving. The fact that his IEPs had essentially carried over the same goals and objectives from year to year demonstrated to the parents that he was not making effective progress. Endrew clearly had done much better in his private placement.
Endrew’s parents litigated the matter through an administrative proceeding at the Colorado Department of Education, which deemed Endrew’s IEPs appropriate and, therefore, denied their claims for reimbursement and for placement in the private school going forward.
The federal district court reviewing the administrative determination found that while Endrew had not made “immense educational growth,” he had at least made “minimal progress.” Endrew F. v. Douglas County, No. 12-2620, 2014 WL 4548439, at 9 (D. Colo. 2014). On appeal, the Tenth Circuit affirmed, holding that an IEP was sufficient if it conveyed an educational benefit that was merely more than “de minimis.” Endrew F. v. Douglas County, 798 F.3d 1329, 1341 (10th Cir. 2015).
The Supreme Court, however, unanimously rejected the “de minimis” standard. The Court examined the history surrounding the passage of IDEA, noting that the IDEA was an “ambitious” piece of legislation aimed at remedying the pervasive and tragic stagnation of students with disabilities. The Court stressed the importance of the unique needs and abilities of the particular student when assessing the adequacy of the individualized educational plan of that student, noting that “[a] focus on the particular child is at the core of the IDEA.” Endrew F., 137 S.Ct. 988 at 12.
The Court restated Rowley’s general principle that the school district must provide an IEP reasonably calculated to enable the student to make progress that is appropriate in light of the student’s particular circumstances. For some students, like the student in Rowley, keeping pace with their non-disabled peers and advancing from grade to grade may be appropriate progress. But for students like Endrew, who were in programs substantially or completely separate from their non-disabled peers, the student’s own potential determines what achievement is “appropriate in light of the student’s circumstances.” For these students, the educational program must be “appropriately ambitious” and provide “the chance to meet challenging objectives.” Endrew F., 137 S.Ct. 988 at 14.
Even before Endrew F., some of the hearing officers with the Massachusetts “court” of original jurisdiction for special education disputes, the Bureau of Special Education Appeals (BSEA), had ordered private residential placements when day placements alone were inadequate to allow the students to acquire independent living skills in preparation to successfully transition to group homes as young adults. See In Re: Boston Pub. Schs., BSEA # 1702809, 22 MSER 239 (Figueroa, 2016); In Re: King Philip Reg’l Sch. Dist., BSEA # 12-0783, 18 MSER 20 (Crane, 2012). While one hearing officer’s decision is not binding on another hearing officer, the few BSEA decisions to interpret Endrew F. thus far have construed it as either equivalent to the standard already being applied in Massachusetts or, in two opinions, as adding an “appropriately ambitious” overlay to that standard. In Re: Norton Pub. Schs., BSEA #1609348, 22 MSER 169 (Berman, 2017); Boston Publ. Schs. & Mass. Dept. of Mental Health, BSEA #1707097, 23 MSER 59 (Berman, 2017).
It therefore appears that, after Endrew F., students with special needs can continue to demand IEPs designed to tap their particular potential to make reasonable progress towards realistic educational goals.
Dan Heffernan concentrates his practice in the areas of special education, civil rights, personal injury, medical malpractice, and children’s torts. He represents children with special needs and their families, people injured in accidents, and those who have had their civil rights violated.