By: Sarah J. Moore, Partner at Fisher & Phillips LLP
Since 1982, determining whether a federally funded school met its obligation to provide a “free appropriate public education” (FAPE) to a child protected under the Individuals with Disabilities Education Act (IDEA) rested on whether the student’s Individualized Education Plan (IEP) was “reasonably calculated to enable the child to receive educational benefits.” Bd. of Edn. Of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176. For students with disabilities (SWD) fully integrated in a regular classroom, passing grades and grade advancement serve as primary indicators of the school meeting its FAPE commitment. These indicators have been more problematic for those SWD unable to access educational programming in a traditional learning environment. In its recent Endrew F. v. Douglas County School Dist. decision, the U.S. Supreme Court unanimously resolved how FAPE compliance shall be determined for SWD unable to be integrated into the regular classroom and unable to achieve on grade level.
Understanding Who is Affected
As the Court noted, SWD fall on a spectrum from those able to learn in a regular classroom and achieve grade level advancement to children who are unable to participate in traditional educational programming and grade level progression because the disability impairs mental, social, and/or communicative skills, and/or results in impactful emotional states or behaviors. In Endrew, the child was diagnosed with autism who had a “sweet disposition” but would “scream in class, climb over furniture and other students, and occasionally run away from school … and was afflicted by severe fears of common-place things like flies, spills, and public restrooms.” By fourth grade, the child’s academic and functional progress stalled. Endrew fell closer to the end of the spectrum where inclusion and grade level progression were not realistically achievable.
Achieving FAPE Moving Forward
Noting that IDEA does not “guarantee any particular level of education” or “any particular [educational] outcome”, the Court in Endrew explained IDEA substantively requires an IEP to be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” While the Court refused to create a bright-line rule on what constitutes appropriate progress, it strongly stated that “de minimus” or “merely more than de minimus” progress alone cannot satisfy the FAPE obligation for SWD not fully integrated in the regular classroom who cannot achieve at grade level. Similarly, measuring compliance by comparing whether the FAPE is substantially equal to educational opportunity of non-disabled peers is not appropriate. Instead, appropriate progress must be determined on a case-by-case basis by focusing on the “unique circumstances of the child for whom [the IEP] was created.” The Court emphasized the judiciary’s role as one of deference to expertise of school officials, provided they are able to provide rational explanation for IEP decisions.
Public schools are bracing for an anticipated increase in due process complaints as well as the potential for revisiting some matters previously litigated. Proactively addressing the impact of Endrew on each school district’s SWD population is critical and should include:
• Creation of a core team to review the new and arguably heightened standard enunciated in Endrew. We recommend this team includes the superintendent/CEO, special education director, and legal counsel in order to ensure the discussion falls under the protections of the attorney client privilege. The core team should identify all SWD falling within the category of students impacted by the Endrew decision, with deliberate consideration of whether the current IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” and does not merely achieve de minimus or merely more than de minimus progress. What matters is whether a school can rationally explain appropriate progress for a SWD and why that constitutes compliance with FAPE when examined under the Endrew decision.
• The core team should develop customized training for all staff involved in IEP development for SWD falling within the category of students impacted by the Endrew decision. Customized training is necessary to ensure the characteristics of the spectrum of SWD population served by the school is meaningfully considered and reviewed. Training should focus on best practices for supporting IEP teams in decision-making so focus on a child’s circumstances is used to identify appropriate progress and inform reasonably calculated goals and benchmarks for measuring that progress. Where the child’s circumstances create an obstacle to being on grade level and accessing the regular classroom, clear articulation of these limitations should be considered to ensure the unique needs of the SWD are properly captured.
• Given the importance of being well positioned to explain IEP decisions, we recommend the core team promptly review all IEPs developed for the upcoming 2017-2018 school year, for that portion of the school’s SWD population impacted by the Endrew decision. Further, extended school year determinations should also be reviewed by the core team as promptly as possible.
• Any pending litigation or due process case involving an SWD impacted by the Endrew decision should be promptly reviewed by legal counsel to evaluate options in addressing any negative implication of the decision.
Ongoing Monitoring Recommended
With the repositioned perspective on “appropriate progress” occasioned by the Endrew decision, a new age of education for the SWD population whose disability creates an insurmountable obstacle to the general educational curriculum has the potential to unfold. Whether it does will be a function of how IEP teams across the country implement the new Endrew standard and whether public schools have flexibility in creating academic and functional programming more aligned to this population’s needs. To the extent schools are unable to achieve the flexibility required, parents will more actively initiate legal challenges and seek private placement as an option. The financial impact of this potential should cause public schools to explore programming solutions within their own four walls. By monitoring implementation, school administrators will be positioned to identify opportunities to meet their own SWD population needs and remain competitive with competing private, charter, and neighboring public schools with open enrollment.