April 2017

As you may be aware, the Supreme Court of the United States recently issued its decision in Endrew F. v. Douglas County School District, in which it ruled that the IDEA demands a standard more stringent than “merely more than de minimis,” as applied by the Tenth Circuit, when determining whether a child has received FAPE. The Supreme Court made clear in its opinion that a determination of whether a student received FAPE hinges upon whether the student's IEP is “reasonably calculated to enable the child to make progress appropriate in light of the child's circumstances.” The Court, however, refused to adopt the parents' suggested standard that would require educational programs to provide children with disabilities “substantially equal” educational opportunities as those provided for children without disabilities. While the Endrew F. decision does interpret FAPE to necessitate a more demanding standard in complying with the IDEA's procedural requirements, the Court has remanded the case to the Tenth Circuit to for further proceedings dealing with Endrew F., specifically. Though the Court did effectively raise the standard for students receiving special education services, there are significant concerns in the flexibility of districts when determining what is appropriately ambitious under the new standard. The Court states in its opinion that a court reviewing a case under the new standard should expect that school authorities will be able to offer “a cogent and responsive explanation” for the decisions that show the child's IEP was appropriately ambitious in light of the surrounding circumstances. The Court did not go on, however, to lay out a formula for developing IEPs; rather, it reaffirmed that deference to the child's teachers, parents, and other school authorities is most appropriate, as they are in the best place to discover and evaluate the child's needs. The Court's decision gives special education directors leverage to revamp their current special education programs. Training programs that focus on correctly developing IEPs, as well as implementing those IEPs are a great place to start. Additionally, we recommend that Districts look at their education programs geared towards children with disabilities to make sure that they are able to demonstrate how those programs allow each child to make meaningful, appropriate progress. The bottom line is that most districts are already developing IEPs and utilizing education programs that meet this new, elevated standard that the Court handed down. IEP teams should still take each child's disability and needs on a case-by-case basis. Districts should continue to emphasize the IDEA's procedural requirements in the development of IEPs. When developing IEPs in the future, Districts should be able to articulate the reasons that show the child's IEP is reasonably calculated to enable that particular child to make progress in light of that child's individual circumstances. We will keep you updated on any legal developments in this area that would affirm or alter this decision. Download PDF