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Don’t Believe the HYPE: Endrew F. Delivers Good News for PA Schools’ FAPE Obligation

Only two (2) months after the United States Supreme Court began to hack through the special education “word jungle” in oral argument, the Court delivered a short, concise, and, importantly, 8-0 decision in Endrew F. v. Douglas County School Dist. (Mar. 22, 2017).  The Court’s Chief Justice Roberts authored the decision. The issue before the Court can be plainly stated:  what level of benefit must a student receive and what level of progress must an Individualized Education Plan (IEP) offer for a student identified under the Individuals with Disabilities Education Act (IDEA).  In short, when does an IEP offer a Free Appropriate Public Education (FAPE)?

Eyes from every Federal Circuit were on this case, as slight, and sometimes significant, variations on the characterization of “educational benefit” have cropped up across the nation since the Court’s decision in Board of Ed. of Hendrick Hudson Central School. Dist, Westchester Cty. v. Rowley (1982).  Significantly, the March 22, 2017 decision tosses aside the 10th Circuit’s “educational benefit [that is] merely  . . . more than de minimis” standard. The “minimal progress” standard, the Court found, is lower than the precedential Rowley (1982) standard.  Arguably, the decision more closely aligns with the 3rd Circuit’s “meaningful” educational benefit (a standard more rigorous than “de minimis”).

The Court declared: “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.”  While carefully qualifying this holding as not a “new standard” that upsets Rowley, the Court makes no bones about its desire to stay out of the decisions of local educational agencies.  Chief Justice Roberts clearly cautioned that the “absence of a bright-line rule, however, 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.’” Furthering this deference, the Court looked to educators to offer “a cogent and responsive explanation for its decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” In other words, the Court affirmed that an educator’s expertise (alongside parents’ opinions) is critical to the determination of what individual progress is appropriate to expect of a student. Importantly, the Court reiterated that the “question is whether the IEP is reasonable, not whether the court regards it as ideal.”

Certainly, Third Circuit/Pennsylvania Parents’ lawyers might try to paint the Endrew F. decision as establishing a higher FAPE standard.  But, it is our opinion that the ruling does not dramatically change Pennsylvania school districts’ understanding of FAPE.  While the Court refused to engage in IDEA “acronym overload” or define how “appropriate” is any different than “meaningful,” it suggested a few scenarios that describe a “reasonably calculated” IEP:

  1. For “most” children assigned to regular education, IEPs should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” (But, the Court cautioned, this is not an inflexible rule; “not every child who advances from grade to grade receives FAPE”);
  2. For situations where full integration is not appropriate, “a child’s IEP need not aim for grade-level advancement if that is not a “reasonable prospect.” Still, that child’s educational program must be “appropriately ambitious in light of his circumstances.”;
  3. While their goals might be different, all children should have “the chance to meet challenging objectives.” What is “appropriate” turns on the “unique circumstances of the child for whom it was created.”

Overall, the opinion keeps the individual as the centerpiece of any educational benefit analysis, concluding that what is “appropriate progress .  .  . depends on the unique circumstance of the child.”

Moving forward, all eyes are on the Pennsylvania Hearing Officers to discern if Endrew F. has an impact on due process decisions. If you have questions about what Endrew F. means for your school, or you desire tailored training and consultation to your professionals on compliance with the Court’s more detailed explanation of the FAPE standard, please contact any member of our School Law Group.

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