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United States Supreme Court Provides New Articulation of Free Appropriate Public Education Standard

By D|K’s School and Higher Education Law Team

In a much anticipated special education decision, the United States Supreme Court vacated and remanded the 10th Circuit Court of Appeal’s decision in Endrew F. v. Douglas County School District. The Court stated, in the unanimous opinion written by Chief Justice John Roberts, that school districts need to ensure that a student’s IEP (Individualized Education Program) is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The facts of the case are as follows:

A Colorado autistic child attended public school for several years and began to have behavioral problems. The parents believed “his academic and functional progress had essentially stalled” and his IEP “largely carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress toward his aims.” The parents’ position was that “only a thorough overhaul of the school district’s approach” could “reverse the trend.” The IEP presented to the parents the next school year, in their view, was the same as past years and, as a result, placed him in a private school. The private school “developed a ‘behavioral intervention plan’” that addressed the student’s “most problematic behaviors and set out particular strategies for addressing them.” Within months, the child’s behavior improved and he made academic progress.

The parents then sought tuition reimbursement from the school district. That request was denied at all levels, including the 10th Circuit. The matter was then petitioned before the U.S. Supreme Court where the decision was vacated and remanded.

The Court discussed the need for instruction to be specially designed to meet the child’s unique needs through a personalized education program. The plan must aim to enable the child to make progress. “And the degree of progress contemplated by the IEP must be appropriate in light of the child’s circumstances, which should come as no surprise. This reflects the focus on the particular child that is at the core of the IDEA (Individuals with Disabilities Education Act).”

The Court also discussed the 10th Circuit’s decision, written by newly confirmed Supreme Court justice Gorsuch. The Gorsuch opinion stated that “the instruction and services furnished to children with disabilities must be calculated to confer ‘some educational benefit’” and that “a child’s IEP is adequate as long as it is calculated to confer an ‘educational benefit [that is] merely . . . more than de minimis.’”

The Supreme Court found that the IDEA demands more, stating, “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. 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.’”

As a practical matter, the new decision will not change the day-to-day procedure for developing and implementing IEPs. The courts will continue to review IDEA issues on a case-by-case basis, in light of the facts and circumstances, including the specific disability-related needs of the student. We will continue to monitor decisions from the Seventh Circuit Court of Appeals for its interpretation of this new articulation of the FAPE standard. However, given its past decisions, the Seventh Circuit has in practice already interpreted FAPE (the entitlement to a Free and Public Education) in a manner consistent with the new standard. For example, in 2011 the Seventh Circuit stated in M.B. ex rel. Berns v. Hamilton Southeastern Schools, “We reiterate that an IEP is reasonably calculated to enable the child to receive an educational benefit “when it is ‘likely to produce progress, not regression or trivial educational advancement.’”

The Seventh Circuit’s standard has been articulated in federal cases arising from Wisconsin school districts. In Vincent v. Kenosha School District, the court wrote, “an IEP is reasonably calculated to enable the child to receive educational benefits where the IEP is likely to produce progress.” Similarly, in Konkel v. Elmbrook School District the court found that “in an IDEA case a court’s inquiry is twofold: first, whether the state complied with the procedures set forth in the statute, and second, whether the IEP developed pursuant to such procedures was reasonably calculated to enable the child to receive educational benefits.”

Districts should continue to review IEPs to guard against mere de minimus progress and develop IEP goals that strive for progress for each student based on the student’s capabilities.

Please contact your Davis & Kuelthau, s.c. attorney, the author noted above or the related practice group chair linked here if you have any questions. Special thanks to Beverly Butula, Director of Library Services, for her contributions to this article.