Update: On March 22, 2017, the Supreme Court released a unanimous decision in Endrew F. v. Douglas County District, reversing the Tenth Circuit and remanding the case for further proceedings. The Court rejected the “merely . . . more than de minimis test” that the circuit court applied to determine whether the school district provided a child with a disability a free appropriate public education, as required by the Individuals with Disabilities Education Act. In its place, the Court held that “[t]o 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.” Although the decision does not go as far as the petitioners advocated—the Court rejected a “substantially equal” standard—many parent and child advocates consider the decision an important victory for children with disabilities.
On January 11, 2017, the Supreme Court heard arguments in Endrew F. v. Douglas County School District, a case that many believe to be the most significant special education case to reach the Court in over 30 years. The case centers around an important question for educators, advocates, and courts: what educational benefit must a school district confer on a student with a disability in order to provide a free appropriate public education (FAPE), required by the Individuals with Disabilities Education Act (IDEA)? In Board of Education v. Rowley, 458 U.S. 176 (1982), the Court held that the individual education program (IEP) that schools must provide to a student with a disability under IDEA must be “reasonably calculated to enable the child to receive educational benefits.” The question before the Court now is what “educational benefits” means.
The facts of the case involve Endrew, a fifth grade student with autism and attention-deficit/hyperactivity disorder (ADHD), who attended public school from preschool through fourth grade. The school provided Endrew with an IEP that included functional and academic goals. Over time, Endrew began to engage in increasingly problematic behaviors related to his disability. The school did not implement any plan focused on his behavioral or adaptive needs. Meanwhile, his parents asserted that academically Endrew made “little to no progress”; most of his IEP goals were carried over as “continued” from year to year or abandoned even though Endrew had not mastered them. Dissatisfied with the school’s proposed IEP for his fifth grade year, Endrew’s parents placed him in a private school serving children with autism. The private school implemented a behavior intervention plan for Endrew’s individual behavioral needs, and evaluated him for and then provided speech language therapy. Endrew made progress and mastered more advanced goals than those he had failed to master at his previous school.
Endrew’s parents filed a due process complaint under IDEA seeking reimbursement for the private school tuition. The hearing officer ruled in favor of the school district, finding that the school had provided Endrew with a FAPE because he had received “some” educational benefit. Endrew’s parents then filed an IDEA suit in federal court; the district court similarly found for the school district. On appeal, the Tenth Circuit affirmed, using what is often referred to in the litigation as the “more than de minimis” or “merely more than de minimis” test. Essentially, the court found that because the public school provided a more than de minimis educational benefit to Endrew, the district had satisfied its obligation to provide him a FAPE. The Supreme Court granted the parents’ petition for certiorari.
Argument: Competing Standards in a “Blizzard of Words”
In their brief to the Supreme Court, Endrew and his parents argued that a merely more than de minimis benefit is inadequate and contrary to Congress’s intention in IDEA, particularly as amended in 1997 and 2004. The proper standard is “substantially equal opportunities to achieve academic success, attain self-sufficiency, and contribute to society,” which they asserted can be gleaned directly from IDEA. The federal government filed an amicus brief in support of Endrew’s parents, but proposed a different standard: students with a disability must be afforded “an opportunity to make significant educational progress.” The government rooted its argument in IDEA and in the Supreme Court’s interpretation in Rowley that the law requires schools to provide “meaningful” access to an education.
The school district argued that Rowley instead reveals that IDEA does not provide a true substantive standard, and is principally about procedural protections. It claimed that the Court should not be crafting a more specific substantive standard because doing so would violate the Spending Clause: states get federal education funds by agreeing to provide students with disabilities a FAPE, and changing what that means would be an unfair burden on the states. The district further argued that the more than de minimis standard is working, and is essentially the same as “some benefit” required by Rowley.
At oral argument, the justices seemed at times exasperated by the many different suggested formulations—which Justice Alito referred to as a “blizzard of words” facing the court—and raised questions about what any of them really mean. Justice Breyer noted that the Court lacks expertise in education and needs to rely on those who do, including the U.S. Department of Education. But amidst the uncertainty, the justices consistently questioned the merely more than de minimis standard advocated by the school district and used by the Tenth Circuit and other circuit courts. As Justice Ginsburg pointed out, this wording does not come from IDEA or Rowley. Several justices pushed the district’s attorney on whether the merely more than de minimis standard truly comports with the holding in Rowley, and how such a standard could both have “bite,” as the district’s attorney claimed, but still require only a nontrivial benefit to students with disabilities.
But the justices also raised a number of challenges for Endrew’s parents and the government. Several, particularly Justice Kennedy, expressed concern about costs to already cash-strapped school districts that could be required to provide a heightened level of services to students with disabilities. The parents’ attorney tried to alleviate this worry, emphasizing that most students’ needs can be met by teachers and specialists already on staff, and that Congress made clear in IDEA that cost cannot prevent servicing students with more serious needs who require more than the local public school can provide. A number of the justices questioned how the proposed “substantially equal” standard would work for students whose disabilities would prohibit them from ever achieving grade-level standards. The parents’ attorney suggested that the answer lies in “alternative achievement standards,” drawn from the text of IDEA. But the justices seemed possibly more satisfied with how such students could fit within the government’s articulation, focused on significant educational progress “in the light of the child’s circumstances.”
In sum, it is not clear what standard, if any, the Supreme Court is likely to endorse. The justices’ remarks at argument may suggest disapproval of the merely more than de minimis standard, giving hope to parent and child advocates that the Court may reject it. But the justices also seemed concerned with capturing the right “nuance” among the many suggested formulations, particularly in light of anticipated future litigation. The Court’s decision is expected to be published by this summer.
Jamie Schulte is a Skadden Fellow and attorney with LAF in Chicago, Illinois.