Endrew F. v. Douglas County Schools
March 23, 2017
March 22, 2017 will go down as a good day for parents, like me, who have a child in the public education system who has special needs. In a time when many of the exceptional children's programs in this state and in this country seem to be under constant attack, the Supreme Court has given us some new ammunition in the form of (i) a new and higher standard for the level of education that our children are required to be provided with and (ii) an acknowledgment from the highest judicial figure in the land in a Supreme Court opinion that affirms the presence and importance of the role that parents must play in the formation of their children's IEP's [Individualized Education Plan].
In the case of Endrew F. v. Douglas County Schools (March 22, 2016), Chief Justice John Roberts issued a unanimous decision that held that "[t]o meet its substantive obligation under the IDEA [Individuals with Disabilities Education Act], a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Recognizing that all children with special needs are not the same, the Court bifurcated this standard in part by ruling:
- "For a child fully integrated in a regular classroom, an IEP typically should be 'reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.'"
- For children for whom advancement from grade to grade is "not a reasonable prospect," an IEP "must be appropriately ambitious in light of his circumstances."
The standard adopted by the U.S. Supreme Court in Endrew represents a drastic improvement over the standard advanced by the Douglas County district in the Endrew case, which is also the standard that most other school districts have applied since the implementation of IDEA. Indeed, the standard which the U.S. Supreme Court refused to adopt in Endrew, which was that a school district need only provide an "educational benefit [that is] merely ... more than de minimis," will now hopefully go by the wayside. Chief Justice Roberts certainly disregarded this proposed standard with aplomb when he ruled that "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. For children with disabilities receiving instruction that aims so low would be tantamount to 'sitting idly...awaiting the time when they were old enough to 'drop out.'"
Some facts from the Endrew case help illustrate the importance of this ruling. Endrew is a child who, like my son, was diagnosed with autism at an early age. Endrew attended public school in Douglas County from preschool through fourth grade. Endrew showed numerous strengths and was described as "being a humorous child with a 'sweet disposition' who 'show[ed] concern  for friends." Despite these strengths, Endrew also "exhibited multiple behaviors that inhibited his ability to access learning in the classroom" such as screaming in class, climbing over furniture and other students, and running away from school. When Endrew's parents met with the Douglas County officials for Endrew’s fifth grade IEP meeting, Endrew's parents were provided with an IEP that was "pretty much the same as his past ones [IEPs]" even though the parents had asked for a "thorough overhaul" of Endrew's IEP as a result of Endrew's behavioral problems.
At this point, Endrew's parent's removed Endrew from the public schools and enrolled Endrew at Firefly Autism House, a private school. Firefly developed a "behavioral intervention plan" for Endrew "that identified Endrew's most problematic behavior and set out particular strategies for addressing them." Firefly also "added heft to Endrew's academic goals." With this plan and these strategies in place, Endrew's behavior improved and he started to make academic progress that he hadn't been making in public school.
Six months after enrolling at Firefly, Endrew's parent's met with Douglas County officials again. Presumably this meeting was held for the purpose of re-enrolling Endrew. In the meeting the Douglas County officials presented another IEP. However, this IEP "did not differ meaningfully" from the plan that Douglas County had presented before even though there was clear evidence that the program implemented by Firefly were working.
With this disappointment in mind, Endrew's parents filed a complaint seeking reimbursement for Endrew's tuition at Firefly under the provisions of IDEA. During the course of the litigation, lower court's acknowledged that the past IEPs "did not reveal immense education growth" but determined that Endrew was not entitled to relief because Endrew's "IEP objectives were 'sufficient to show a pattern of, at the least, minimal progress."
In reaching his decision overruling the lower courts, Chief Justice Roberts undertook a thorough analysis of the United States Supreme Court's prior ruling in Bd. of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 US 176. Douglas County argued intensely that the Rowley decision supported the "de minimis" standard that it advanced. However, Justice Roberts disagreed. Justice Roberts stressed that the Court in Rowley actually had "charted a middle path" and limited its decision to just the facts of the case that was before it in Rowley. As such, Chief Justice Robert determined that the Rowley court declined "to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act [IDEA]."
After analyzing and limiting Rowley, Chief Justice Roberts went about setting the new standard that will now be applicable, which, as aforementioned, is that for a school district "[t]o meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Importantly, Chief Justice Roberts noted the importance of parents playing a role in this new standard when he concluded that this new standard will require a "prospective judgment by school officials" that "will be informed not only by the expertise of school officials, but also by the input of the child's parents and guardians." The addition of this language should provide great relief and ammunition to the many parents who feel like they have been frozen out of the IEP process by their districts.
In supporting his standard, Chief Justice Roberts concluded very simply that "[t]he IEP must aim to enable the child to make progress." After all, Chief Justice Roberts rationalized that "[a] substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act."
Interestingly, Chief Justice Roberts seems to have embedded in his opinion two extra warnings to school districts that they should take this new standard seriously and not try to take advantage of it. The first warning comes in a footnote where Chief Justice Roberts states "[t]his guidance should not be interpreted as an inflexible rule...do not hold today that every handicapped child who is advancing from grade to grade... is automatically receiving a [Free Appropriate Public Education]." In my opinion, the placement of this footnote serves to protect children from a system that will advance children to a higher grade simply to meet IDEA requirements rather than as a result of the child being prepared to so advance.
The second warning comes in the second to last paragraph of the opinion. In that paragraph, Chief Justice Roberts explains that school authorities are permitted deference based on their expertise in making their judgments in an IEP. At first, this seems to be powerful language for the districts. It is, however, greatly tempered in my opinion, by two sentences that follow: "By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. 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." In my opinion, Chief Justice Roberts uses this paragraph to warn the school districts that times have come to an end where the Court's will be ok with the fact that districts don't have good explanations for their decisions when a family is forced to progress all the way to the judicial system based on an IEP decision. In deciding to include this language, it appears to me that Chief Justice Roberts is noting what many parents have and that is that school districts have tried to take advantage of families by providing less than acceptable IEPs in many cases without having an appropriate rationale to support those IEPs. Hopefully with the inclusion of this warning, that practice will come to an end.
Having read the transcript from the arguments in the Endrew case when they were released, I have been cautiously optimistic about how the Court would rule. Now, having read the opinion, I am given some solace that our special needs children do have some very real and powerful protections in the form of IDEA. If I could offer any advice it is the following: there are protections out there, if your children are not being provided the education that they are entitled to, do something about it! After all, look what Endrew’s parents did!
Brian Pearce is a commercial real estate and real estate litigation/land use attorney in Greensboro, North Carolina. As a father of a child on the autism spectrum, Brian Pearce has also recently expanded his practice into the area of Special Education law.