Starting on January 11, the Supreme Court will hear oral arguments for Endrew F. v. Douglas County School District, an appeal from the Tenth Circuit in which the Court is tasked with determining whether school districts must provide students with disabilities an “educational benefit” that is “more than de minimis” in order to satisfy the requirement of a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA). In doing so, the Supreme Court may resolve an ongoing split among the United States Courts of Appeals, which vary significantly with respect to the standard applied when assessing whether FAPE has been provided to a student with special education needs.
Endrew F. involves a fifth-grade student with Autism, Attention Deficit Hyperactive Disorder (ADHD), and significant behavioral issues. The student attended public elementary school with an Individualized Educational Program (IEP) in place through the fourth grade. The parents rejected the school district’s proposed IEP for the fifth grade, opting instead for unilateral placement at a private school for children with Autism. The parents alleged that the district failed to provide adequate progress reports and failed to develop and implement an appropriate plan to address the student’s behavioral needs. The administrative law judge (ALJ) ruled in favor of the school district, and both appeals courts affirmed.
In affirming the lower court decision, the Tenth Circuit examined whether the student was offered FAPE by applying the “some educational benefit” standard previously adopted in that Circuit, defined there as something more than a “de minimis” educational benefit. While the student’s proposed fifth grade IEP had not yet been implemented, the Tenth Circuit cited the student’s educational progress based on his prior IEPs as evidence that the fifth grade IEP was reasonably designed to afford “some” educational benefit. The proposed IEP addressed all of the student’s disabilities and behavioral concerns, and was thus sufficient to provide a FAPE.
The “some educational benefit” standard adopted by the Tenth Circuit is also used, in some form, by a majority of the other circuit courts of appeals. The Second, Third and Sixth Courts of Appeals, however, have adopted the more stringent “meaningful educational benefit” standard. This standard, based on other language in Rowley, requires school districts to develop IEPs designed to afford an educational benefit which is measured for appropriateness in relation to the child’s potential. While there is considerable dispute regarding the true difference between the competing standards, it is generally accepted that the higher “meaningful” benefit standard requires something beyond a “more than de minimis” educational benefit.
The Second Circuit has maintained the “meaningful educational benefit” standard since its 1998 ruling in Walczak v. Florida Union Free Sch. Dist. In that case, the parents of a special education student with significant academic, behavioral, and social limitations sought reimbursement by the school district for unilateral placement at a private residential program, which they alleged was necessary for the student to make appropriate progress in the aforementioned areas. While the Second Circuit acknowledged that an appropriate education is one that is “likely to produce progress,” as opposed to only “trivial advancement,” it ultimately denied the parents’ request for reimbursement. The student had made consistent, albeit slow, academic, behavioral and social progress at her prior day placement within the district. The mere fact that residential placement offered more opportunities for social interactions was not enough to render continued day placement inadequate for a FAPE. Indeed, while the Second Circuit adopted the higher FAPE standard, it echoed the Supreme Court’s sentiment in Rowley that the IDEA does not require states to develop IEPs that “maximize the potential of handicapped children.”
Shortly after the appeal of Endrew F. to the Supreme Court, the Solicitor General, on behalf of the Obama administration, submitted an amicus curiae brief advocating for the higher “meaningful educational benefit” standard. The Solicitor General submitted that Congress would not have instructed states to develop IEPs requiring measurable annual progress if all that was truly required was a “non-trivial” benefit. Finally, the Solicitor General highlighted the Rowley court’s emphasis on “meaningful” (versus non-trivial) access to education, and the overall remedial purpose of the IDEA in advocating for the higher FAPE standard. While we in the Second Circuit have been accustomed to the “meaningful educational benefit” standard, it remains to be seen how the Supreme Court will interpret its prior decision in the Rowley case, and whether the uniform standard for FAPE under IDEA will be “some” educational benefit, “meaningful” educational benefit, or a third possibility not yet articulated. For practitioners in this field, further articulation of the Rowley standard can only be helpful and provide clarity to complex decision-making.
Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding special education matters in the State of Connecticut. For further information, please contact Attorney Michelle Laubin at [email protected]