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Rochelle’s Special Education Tips

Supreme Court Issues Landmark Decision on the FAPE Standard
The FAPE Standard is Whether the IEP is Reasonably Calculated to Enable a Child to Make Progress In Light of His Circumstances

We have been eagerly awaiting the decision of the Supreme Court in Endrew F. v. Douglas County School District. On March 22, 2017, in a unanimous 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 case involved Endrew, a child with autism, whose parents were dissatisfied with his IEP and progress. They unilaterally placed Endrew in a private school specializing in educating children with autism, determined that his behavior significantly improved in the private school, then sought a new IEP from the school system. Dissatisfied with the new IEP, the parents filed a due process complaint seeking funding of the private school placement. The U.S. District Court held in favor of the school system and concluded that annual modifications to Endrew’s IEP objectives were “sufficient to show a pattern of, at the least, minimal progress.” The U.S. Court of Appeals for the Tenth Circuit affirmed, relying on the language in the Supreme Court’s decision 35 years ago in Board of Education of Hendrick Hudson Central School District v. Rowley that instruction and services must be calculated to confer “some educational benefit.” The Supreme Court vacated the decision of the U.S. Court of Appeals and remanded the case for the Tenth Circuit to reconsider based on the Supreme Court’s decision that the standard is whether “the IEP is reasonably calculated to enable the child to make progress in light of his circumstances.” In its decision, building on Rowley, the Supreme Court made the following statements, all of which are very helpful in assisting IEP teams in determining whether an IEP is appropriate and a FAPE being offered:

  • It is not enough to just say that “any educational benefit” is sufficient.
  • A school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
  • The IEP need not aim for grade-level advancement if that is not a reasonable prospect for the child.
  • The benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end.
  • The question is not whether the IEP is “ideal.” The question is whether it is “reasonable.”
  • The IEP must aim to enable the child to make progress.
  • The IDEA requires that children with disabilities receive education in the regular classroom “whenever possible” and for most children, a FAPE will involve integration in the regular classroom and individualized specialized special education calculated to achieve advancement from grade to grade.
  • Being 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.
  • Deference is given on the application of expertise and the exercise of judgment by school authorities.
  • The courts should not substitute their own notions of sound educational policy for those of the school authorities which they review.

While this decision may not change the development of IEPs by teams already utilizing these common sense standards, the decision will definitely help inform decisions when a parent is seeking private school funding.

Rochelle’s Special Education Tips (“Tips”) are designed to be helpful and thought provoking, but should not be considered legal advice as they may not be accurate for use in all situations. Tips are based on my opinions and positions in accordance with federal and Maryland law and my over 35 years of experience in the special education legal field. – Rochelle S. Eisenberg, Esquire
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