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Supreme Court Ruling on Special Education: Endrew F.

March 22, 2017

All,

I'm very pleased to report yet another rare unanimous decision by the U.S. Supreme Court with historic, and positive, implications for students with disabilities' receipt of a truly free and appropriate public education.

As special ed advocates, TVIs, and parents know all too well, the IDEA does not, and has never, stood for the proposition that special education and related services are supposed to ensure equal access and equal benefit for students with and without disabilities. However, over the course of time, particularly given the Supreme Court's ruling in the landmark Rowley case from years ago, many schools have argued, and courts have agreed, that all that is in fact required is that the student receive merely some appreciable benefit. As a practical matter, we know that what happens all too frequently is that lots of kiddos are passed over, passed along from grade to grade with minimal services provided, or are otherwise failed by the system. How many times have teachers and parents in our field and across the disability community said something like, "Seems like so long as a student doesn't fail, the states, districts and schools think they're satisfying the law."

Well now the Supreme Court has spoken again, and while the Court is not endorsing what a lot of advocates would have liked to have seen but were never likely to have gotten, namely some kind of equal benefit standard, the Court, in a unanimous opinion authored by Chief Justice Roberts issued just this morning, has made it crystal clear that being able to show merely some benefit from the services provided doesn't cut it. To meet their substantive obligations under IDEA, states, districts and schools must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. You might say, "well this doesn't sound very strong to me," and read out of context and without an understanding of how courts have interpreted IDEA over time, you'd be right. But I hope advocates will appreciate that this unanimous decision, that reversed a lower court's usage of the "some benefit" formula, sends a very powerful message throughout our entire special education system that says just doing something for students with disabilities isn't nearly enough.

I have copied below the text of the syllabus from the accessible PDF document released this morning, and I'll also share the link to the full slip opinion with you so that you can have a look for yourself. As always when copying and pasting from PDF documents online, the formatting is a bit off, but it should be quite readable.

AFB was pleased to be one of the many groups that joined in a so-called friend of the court brief that urged the outcome of this case. Congratulations to us all!

Mark Richert, Esq.

Director, Public Policy
American Foundation for the Blind
(202) 469-6833
MRichert@AFB.net

Follow this link to download a PDF of the syllabus, or read the text below.

SUPREME COURT OF THE UNITED STATES
Syllabus
ENDREW F., A MINOR, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS, JOSEPH F. ET AL. v. DOUGLAS COUNTY SCHOOL DISTRICT RE­1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 15-827. Argued January 11, 2017-Decided March 22, 2017

The Individuals with Disabilities Education Act (IDEA) offers States federal funds to assist in educating children with disabilities. The Act conditions that funding on compliance with certain statutory requirements, including the requirement that States provide every eligible child a "free appropriate public education," or FAPE, by means of a uniquely tailored "individualized education program," or IEP. 20
U. S. C. §§1401(9)(D), 1412(a)(1).

This Court first addressed the FAPE requirement in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176. The Court held that the Act guarantees a substantively adequate program of education to all eligible children, and that this requirement is satisfied if the child's IEP sets out an educational program that is "reasonably calculated to enable the child to receive educational benefits." Id., at 207. For children fully integrated in the regular classroom, this would typically require an IEP "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Id., at 204. Because the IEP challenged in Rowley plainly met this standard, the Court declined "to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act," instead "confin[ing]its analysis" to the facts of the case before it. Id., at 202.

Petitioner Endrew F., a child with autism, received annual IEPs in respondent Douglas County School District from preschool through fourth grade. By fourth grade, Endrew's parents believed his academic and functional progress had stalled. When the school district proposed a fifth grade IEP that resembled those from past years, Endrew's parents removed him from public school and enrolled him in a specialized private school, where he made significant progress. School district representatives later presented Endrew's parents with a new fifth grade IEP, but they considered it no more adequate than the original plan. They then sought reimbursement for Endrew's private school tuition by filing a complaint under the IDEA with the Colorado Department of Education. Their claim was denied, and a Federal District Court affirmed that determination. The Tenth Circuit also affirmed. That court interpreted Rowley to establish a rule that a child's IEP is adequate as long as it is calculated to confer an" educational benefit [that is] merely . . . more than de minimis," 798 F. 3d 1329, 1338 (internal quotation marks omitted), and concluded that Endrew's IEP had been " reasonably calculated to enable [him]to make some progress, " id., at 1342 (internal quotation marks omitted). The court accordingly held that Endrew had received a FAPE. Held: To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. Pp. 9­16.

(a) Rowley and the language of the IDEA point to the approach adopted here. The "reasonably calculated" qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials, informed by their own expertise and the views of a child's parents or guardians; any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal. An IEP must aim to enable the child to make progress; the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. And the degree of progress contemplated by the IEP must be appropriate in light of the child's circumstances, which should come as no surprise. This reflects the focus on the particular child that is at the core of the IDEA, and the directive that States offer instruction "specially designed" to meet a child's "unique needs" through an "[i]ndividualized education program." §§1401(29), (14) (emphasis added).

Rowley sheds light on what appropriate progress will look like in many cases: For a child fully integrated in the regular classroom, an IEP typically should be "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." 458 U. S., at 204. This guidance is grounded in the statutory definition of a FAPE. One component of a FAPE is "special education," defined as "specially designed instruction . . . to meet the unique needs of a childwith a disability." §§1401(9), (29). In determining what it means to"meet the unique needs" of a child with a disability, the provisions of the IDEA governing the IEP development process provide guidance. These provisions reflect what the Court said in Rowley by focusing on "progress in the general education curriculum." §§1414(d)(1)(A)(i) (I)(aa), (II)(aa), (IV)(bb).

Rowley did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able toachieve on grade level. A child's IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child's educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives. This standard is more demanding than the "merely more than de minimis" test applied by the Tenth Circuit. It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not. Pp. 9­15.

(b) Endrew's parents argue that the Act goes even further and requires States to provide children with disabilities educational opportunities that are "substantially equal to the opportunities afforded children without disabilities." Brief for Petitioner 40. But the lower courts in Rowley adopted a strikingly similar standard, and this Court rejected it in clear terms. Mindful that Congress has not materially changed the statutory definition of a FAPE since Rowley was decided, this Court declines to interpret the FAPE provision in a manner so plainly at odds with the Court's analysis in that case. P. 15.

(c) The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule should not be mistaken for "an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U. S., at 206. At the same time, deference is based on the application of expertise and the exercise of judgment by school authorities. The nature of the IEP process ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child's IEP should pursue; thus, by the time any dispute reaches court, school authorities will have had the chance to bring their expertise and judgment to bear on areas of disagreement. See §§1414, 1415; Rowley, 458 U. S., at 208­209. At that point, a reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Pp. 15­16. 798 F. 3d 1329, vacated and remanded. ROBERTS, C. J., delivered the opinion for a unanimous Court.

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