Endrew F. Goes to Washington: The US Supreme Court Will Once Again Consider the Level of Educational Benefit Schools Owe to Students With Disabilities

A case involving the education which a Colorado school provided to a student

with autism could change the services which all schools must provide to

students with disabilities. The case, Endrew F. v. Douglas County School

District RE-1, 798 F.3d 1329 (10th Cir. 2015), cert. granted, 109 L.Ed 901

(09/29/16) involves a claim by the parents of a student with autism

spectrum disorder that their school district failed to provide their son with

sufficient educational benefits.

Most educators are familiar with the concept that schools must provide

special education students “with a Ford not a Cadillac.” This phrase is

shorthand for a concept which the United States Supreme Court first

developed in 1982. In that case, Board of Education of the Hendrick Hudson

Central School District v. Rowley, 458 U.S. 176 (U.S. 1982), the Court held

that schools do not have to provide special education students with all the

services necessary to maximize their full academic potential. The Court

went on to note that an appropriate education is one that provides "some"

educational benefit to the disabled student.

In recent years, lower courts have struggled to define coherently the correct

standard for judging the education plans of disabled students. Some courts

have continued to hold that schools must only provide “some” education

benefit to disabled students. This is the current standard in the Eighth

Circuit, which covers schools in Nebraska. See K.E. v. Independent Sch.

Dist. No. 15, 647 F.3d 795, 810 (8th Cir. 2011) (requiring "some educational

benefit" and holding that standard was satisfied because child "enjoyed more

than what we would consider slight or de minimis academic progress").

Other courts have adopted a heightened standard, concluding that schools

must offer “meaningful” education benefit. See D.S. ex rel D.S. v. Bayonne

Bd. of Educ., 602 F.3d 553, 556 (3d Cir. 2010).

In the Endrew F. case, a 5 th grade student with autism began to exhibit

severe behavioral issues. He started banging his head, dropping to the

floor, taking off his clothes and fleeing away from the school. The parents

became convinced that the school wasn’t doing enough to help Endrew and

pulled him out of the public elementary school. Instead the family enrolled

Endrew in a private school that specializes in working with autistic children

and sued the school district for the cost of the private school placement.

The U.S. Court of Appeals for the Tenth Circuit held that since the school’s

IEP provided the student with "some educational benefit," the school district

had provided Endrew with a "free, appropriate public education" under the

Individuals with Disabilities Education Act. Therefore, the court rejected the

parents’ tuition claim.

Last month, the US Supreme Court agreed to hear the Endrew F. case. If

the Supreme Court abandons or even slightly increases the Rowley standard,

we will doubtlessly see a wave of litigation across the country from parents

demanding that their disabled children receive significantly more educational

services. This includes additional due process claims with state education

departments like NDE, at a minimum, to start redefining and determining

the scope of a new legal standard.

However, given the tight state and federal budgets, it is doubtful that

schools would see an increase in the resources they are allowed to use to

meet the increased obligation. In fact, the federal government only funds

special education at less than 50% of the promise in the law. A change in

the legal standard will have no bearing on funding from Congress.

The date for oral argument in this case has not yet been set, and there is

little doubt the presidential race and eventual Supreme Court composition

may significantly impact its ultimate resolution. For the time being, schools

can do little more than carefully track what happens in this case. However,

schools should brace themselves for the possibility that this case could be a

significant change in the services that we provided to special education


If you have questions about the level of education benefit which must be

provided to special education students or about special education issues

generally, you should consult with your school district’s attorney or call

Karen, Steve, or Bobby.