The Supreme Court Rules in Endrew F.: What is your new legal obligation under special education laws?

The minimum educational benefit which must be provided to special education students in Nebraska is higher today than it was yesterday.

Today, the Supreme Court ruled in the case of Endrew F. et al. v. Douglas County Sch. Dist RE-1, 580 U.S. ___ (2017). We have been talking about this case for several months now because of its potential impact on the special education world, especially in Nebraska. The primary question in the case was the minimum educational benefit schools must provide to students to ensure they are receiving a “free, appropriate public education” (FAPE) under the Individual with Disabilities Education Act (IDEA). In other words, what is the least amount of educational benefit a school could provide and still comply with the law?

The federal circuit courts were split on that question, which is exactly why the Supreme Court took this case. Some courts, like the 9th Circuit, have held that a more meaningful benefit is required. That was the position of the parents in Endrew F. Other courts, like the 8th Circuit which covers Nebraska and the 10th Circuit where this case came from, have held “some educational benefit [that is] . . . merely more than a de minimis” is required, which is a lower standard. That was the position of the school in Endrew F.

The Supreme Court took the case to resolve that dispute. The split among circuit courts was based on the Supreme Court’s prior decision in the Rowley case, which discussed the educational benefit required under the IDEA. As the Court noted, Rowley “did not provide concrete guidance” on the issue. However, because the IDEA has not changed since Rowley, the Court had to balance its prior ruling with this new ruling in Endrew F. Importantly for schools in Nebraska, the Court declined to adopt the standard proposed by Endrew’s parents, which was that the IDEA should be interpreted to require “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” Instead, the Court struck a balance between such a heightened standard and the lower standard of “some benefit more than de minimis” which was in place in Nebraska until today.

In a unanimous decision, the Supreme Court did side with the parents and ruled that the minimum educational benefit due to students with disabilities under the IDEA is higher than the “more than a de minimis benefit” standard. In the summary section of the opinion, this is how the Court detailed its conclusion:

Rowley did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve 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 [and the 8th Circuit covering Nebraska]. 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.

Endrew F. et al. v. Douglas County Sch. Dist RE-1, 580 U.S. at pp. 9-15 (2017).

So, what does this mean for Nebraska schools? Good question. Let’s assume a child with a disability in a Nebraska school had an Individualized Education Plan (IEP) which was challenged in court yesterday. The school district would have won so long as it could prove that it was providing “some educational benefit more than de minimis.” If that same school were challenged on the same IEP in court tomorrow, “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.”

The new standard is certainly a “higher” one, but until courts interpret the Endrew F. decision, we will not know exactly how much higher. The Court did say that for children fully integrated into and receiving instruction in the regular classroom, the standard would generally require an IEP that is “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” However, the court warned that a child who advances from grade to grade will not automatically be deemed to be receiving FAPE. For students not fully integrated into the regular classroom, their IEPs need not aim for grade-level advancement. However, their educational program must be “appropriately ambitious in light of [the student’s] 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.”

It is certainly possible some IEPs in Nebraska schools were lawful yesterday, but may not be lawful today. That prospect is somewhat scary, but we have confidence that all Nebraska schools have generally aimed for “more than a de minimis benefit” anyway. The Court’s summary discussion of the adequacy of IEPs after Endrew F. should provide some comfort:

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. 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.

Id. at 15-16.

We think we understand the ruling, so what should we do now? At this point, our best advice is to keep doing the good work you are doing with students in your schools. We do not believe the ruling automatically requires you to reconvene every IEP team to review every IEP. However, for those cases in which the team has had difficulties agreeing on the benefits to be provided, be mindful of the fact this case will empower families and advocacy groups to pursue additional and heightened benefits and services in some cases. In light of Endrew F., that may be appropriate.

We encourage you to review the preceding paragraph from the Court: you are the educational experts. Rather than being worried, we view the ruling as an opportunity to provide additional training to all staff members on the school’s or ESU’s obligations under the IDEA and other disability laws. As schools continue to fight off obstacles like LB 595, which hamstring their efforts at compliance with special education and related disability laws, it is more important than ever to provide training to staff and to set clear expectations.

A great starting point for your additional training on this issue is to read the Endrew F. decision in its entirety. It is a very good review of the educational benefit requirements of FAPE and should be required reading for all educators. Here is a version of the opinion that has the legal mumbo-jumbo from the beginning of most opinions eliminated. This opinion is clearly written so that non-lawyers won’t be frustrated in trying to read it, and we think the summary of the law contained in the opinion will be really useful to practicing educators.

If you have questions about the impact of the Endrew F. ruling or your special education obligations in general, contact your school’s attorney or Karen, Steve, Bobby, or Tim.