When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. – Endrew F. v. Douglas County School District (2017)
Thirty-five years ago, the Supreme Court of the United States had an opportunity to define what the Individuals with Disabilities Education Act (the “IDEA”) meant when a child receiving special education services was entitled to a “free appropriate public education” (“FAPE”). Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 (1982).
The Rowley Standard
Amy Rowley was a deaf student at the Furnace Woods School in New York. After she finished kindergarten, the school offered her a FM hearing aide, and instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week, for the following school year. Her parents wanted the school to provide a sign-language interpreter during her academic classes as part of her special education services.
The Supreme Court held that a FAPE is offered, “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” To determine whether the child “benefited educationally from that instruction”, the court further clarified that FAPE intends to “open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside”.
The court rejected the argument that the IDEA requires a child’s services under her IEP to “maximize” her potential or be “commensurate with the opportunity provided” for typical children.
Instead, it was the purpose of the IDEA to provide a “basic floor of opportunity” to confer “some” educational benefit.
But Amy was clearly performing “better than average” and “advancing easily from grade to grade”, so it seemed clear that she was obtaining “sufficient” educational benefit. She received “personalized instruction and related services calculated by the Furnace Woods school administrators to meet her educational needs”. In fact, she was performing above average in the regular classroom.
The Supreme Court of the United States overturned the lower courts’ decision to provide Amy with a sign-language interpreter, and found that one was not mandated by the IDEA because the school was already meeting her educational needs.
But the court also acknowledged that determining whether a child is receiving sufficient educational benefit to satisfy the school district’s obligation to provide a FAPE is a difficult question. And the court declined to establish an overall test to determine the adequacy of the educational benefits conferred upon a child under the IDEA.
Since then, lower courts have applied different tests or standards to define “educational benefits”. As examples, some courts have held that any benefit, or “merely more than de minimis” benefit, constitutes sufficient “educational benefits”, while others have held that the child is entitled to more than de minimis, or “some educational benefits”.
The Recent Supreme Court Decision
This past week, the Supreme Court squarely addressed the issue in Endrew F. v. Douglas County School District. The Tenth Circuit had held that an IEP is adequate if it is reasonably calculated to confer educational benefit that is “merely more than de minimis”, and that Endrew’s IEP was reasonably calculated to enable him to make some progress.
In reviewing the Tenth Circuit’s decision, the Supreme Court held that:
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 term “reasonably calculated” reflects a recognition that IEPs require the use of prospective judgment by the IEP team. Therefore, the question is whether the IEP was reasonable, not what a court considers ideal.
The IEP must aim to enable the child to make progress. This is not surprising, as the broad purpose of the IDEA is to allow students receiving special education services to pursue academic and functional advancement.
Lastly, the progress contemplated by the IEP must be “appropriate in light of the child’s circumstances” because an IEP is “specially designed” for each particular student’s “unique needs”.
For a child who is fully integrated into the general education classroom, the IEP should typically be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade”. This is because the educational “system itself monitors the educational progress of the child”, through regular examinations, grades, and yearly advancement to a higher grade level.
If that is not a reasonable prospect for the child, the IEP need not aim for grade level advancement, but the “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.”
The court noted that this is a general standard and not a formula. But it also made clear that this standard is “markedly more demanding than the ‘merely more than de minimis’ test”. It cannot be that the IDEA typically aims for grade level advancement for fully integrated students, but is satisfied with barely more than de minimis progress for those who cannot.
For the complete text of the decision in Endrew F. v. Douglas County School District, click here.