“Thought for the Day” #954 – by Stephen R. Elville, J.D., LL.M.

April 24, 2017

The U.S. Supreme Court at least partially filled a 35-year void when it ruled that the Individuals with Disabilities Act (IDEA) requires school districts to provide students with disabilities an Individualized Education Plan (IEP) that enables them to make more than minimal progress.  In doing so, the Court attempted to complete the work it declined to do when it decided Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, in 1982 and aimed to resolve the divide between the circuit courts on the matter.  Endrew F. V. Douglas County School District (U.S., No. 15-827, March 22, 2017).  At issue was the standard that public schools must meet to provide a “free appropriate public education,” or FAPE, to children with disabilities.  Must there be a “just-above-trivial,” a “meaningful,” or some other measurable educational benefit?  Different standards have been applied in different jurisdictions, creating vastly different educational experiences for students covered by IDEA.  In Endrew, the U.S. Court of Appeals for the Tenth Circuit held that a more than de minimis, or just-above-trivial, educational benefit was all a school district need provide, denying Endrew’s parents’ claim for reimbursement of tuition costs they incurred when they sent him to a private school that specialized in educating children with autism.  The U.S. Supreme Court vacated the Tenth Circuit’s judgement. Writing for the unanimous Court, Chief Justice Roberts emphasized that states participating in IDEA must educate a wide spectrum of students with disabilities.  The justices rejected a merely more than de minimis standard as not offering any education at all for students who cannot be educated in the regular classroom.  But they also rejected as unworkable the notion that states provide equal educational opportunity for all students.  In finding a middle ground, the Court zeroed in on the language and intent of the Act, and its focus on each particular child.  Under the Court’s analysis, the key requirements to a FAPE are found in IDEA’s IEP provisions.  There, a child’s present level of achievement first is identified.  Then there must be, according to the regulations, “a statement of measurable annual goals . . . designed to . . . enable the child to be involved in and make progress in the general education curriculum.”  “[E]very child should have the chance to meet challenging objectives,” Roberts wrote, adding that “this standard is markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.”  However, the Court declined to further elaborate on what is appropriate progress from case to case, leaving that to the circumstances of the child and the expertise and judgment of school officials and parents.  The Court simply said that “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”  The case was remanded for further proceedings consistent with the Court’s opinion.