Supreme Court Raises the Bar for Students with Disabilities

The Individuals with Disabilities Education Act (IDEA) transformed the lives of children with disabilities. Before IDEA’s passage in 1975, children with special needs were often neglected and sometimes abused by schools. The IDEA required schools to provide better opportunities, but debate continued about how much they had to do to assist children with profound disabilities.  The U.S. Supreme Court’s recent decision in Endrew F. v. Douglas County School District, raised the standard for school systems that had set only the most limited goals for the most challenged children.

Under IDEA, states receiving federal funding must adopt and implement policies and procedures that ensure children with disabilities a “free appropriate public education” (FAPE), including “related services” needed to benefit from education. A FAPE must be tailored to each child’s needs by means of an “individualized educational program” (IEP). The law sets out procedures and requirements for developing the IEP, including an IEP team of teachers, school officials, and parents, analysis of the child’s current achievement and performance, and “measurable annual goals,” both academic and functional. Parents dissatisfied with an IEP may challenge it administratively and, ultimately, in court.

Until this past term, the Supreme Court had addressed FAPE standards only once, in Board of Education v. Rowley, a case from IDEA’s first decade. Amy Rowley was a bright and near-deaf first grader, a better-than-average student who could have done still more if provided with additional services. Her parents argued for an IEP that would “maximize her potential.” A divided Court disagreed, stressing that educational opportunities “differ from student to student, depending upon a myriad of factors that might affect a particular student’s ability to assimilate information.” The Court determined that an IEP “for a child fully integrated in the regular classroom” was adequate if it conferred “some educational benefit” and was “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” The Rowley majority also held that IDEA created substantive individual rights.

Since Rowley, the federal courts of appeal developed standards for children who, unlike Amy, could not achieve passing marks and regular advancement in regular classrooms. Some, including the U.S. Court of Appeals for the Third Circuit, required “significant learning” and “meaningful benefit.” Many required less. The U.S. Court of Appeals for the Tenth Circuit, in an opinion by then-Judge Neil Gorsuch, concluded that “the educational benefit mandated by IDEA must merely be more than de minimis”—practically nothing.

The Tenth Circuit later applied this “more than de minimis” standard to a child with autism—Endrew, known as Drew.  Drew had attended public school since preschool but his progress had stalled by fourth grade. Behavioral issues such as screaming, climbing over others, and “severe fears of commonplace things” inhibited his learning. His parents believed he needed a substantially different approach, but the school proposed a largely unchanged IEP. Drew’s parents placed him in a private school that specialized in autism, and, with a “behavioral intervention plan,” he was far more successful. When Drew’s parents met with school representatives to discuss an IEP that would let him return to public school, they got nothing different. Arguing that the district had not provided a FAPE, Drew’s parents sought reimbursement for private school tuition. They lost in the trial court, which found “a pattern of, at least, minimal progress.” The Tenth Circuit affirmed the trial court’s decision.

On review, a unanimous Supreme Court in Endrew F. held that the Tenth Circuit had read Rowley too narrowly. The Court reasoned that “a student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all.” Finding that “instruction that aims so low” would be tantamount to “sitting idly…awaiting the time when they were old enough to drop out,” the Court held that IDEA “demands” a higher standard—“an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The Endrew F. Court did not adopt the parents’ proposed standard, which would have required providing “opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” As in Rowley, the Court rejected this as an “entirely unworkable standard requiring impossible measurements and comparisons.”

At oral argument, the Court expressed concern about a standard that would invite more litigation. Perhaps with that in mind, the Court sought a balance, stating that the “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.” Courts reviewing an IEP “must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.”

But schools must earn that deference. The Court recognized that, because 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,” once a “dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.” As a result, the Court reasoned, judges can “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.”

The courts have decided some FAPE cases since Endrew F. Although these cases hardly reveal Endrew F.’s full effect, they do not so far suggest a major shift. Courts remain deferential to school districts that substantially comply with procedural and substantive norms.

Where does Endrew F. leave parents of children with disabilities too great for the Rowley approach? In districts that have already applied the Endrew F. standard, little should change. Where Endrew F. raises the bar, some parents may be able to demand higher goals and the services necessary to reach them. Parents willing to litigate may be more likely to demand particularly broad—and expensive—measures, including private schooling.

With the Secretary of the U.S. Department of Education now encouraging school choice vouchers, less affluent parents may also choose private education, although, as recent reports reflect, they may do so at the risk of losing some of the very rights that IDEA provides and Endrew F. protects.

Lori Fox is a New York lawyer who specializes in higher education and non-profit organizations. She has taught education law at the University of Pennsylvania Law School.