What degree of educational benefit is required for children with disabilities?

The U.S. Government has been asked to weigh in on a special education case in the 10th Circuit.

On 31 May 2016 the Supreme Court invited the Solicitor General of the United States to file a brief expressing their views on Endrew F. v. Douglas County School District, a 10th Circuit case brought by the parents of a Colorado child with autism.  The parents removed their child from the Douglas County School District and placed him in private school.  They sought reimbursement for tuition under the Individuals with Disabilities Education Act (IDEA).  The parents argued that their son had not been provided with a “free appropriate public education,” also known as FAPE, which is required under federal law.

To be sufficient, FAPE must be reasonably calculated to enable the child to receive educational benefits.

Public school districts are required to provide FAPE to disabled students under the IDEA, which means that schools must provide special education and related services that: are provided at public expense; meet the standards of the state educational agency; include an appropriate school; and are provided in conformity with the child’s individualized education plan.  FAPE is provided to disabled children through their individualized education plans (IEP).  An IEP is a detailed written document that describes the student’s educational goals for the year, including specifications on what type of special education services should be provided.  However, the IDEA does not specify the substantive level of achievement required for an appropriate education.

When the Supreme Court previously considered the degree of educational benefit required to provide FAPE, they ruled in Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, that school districts are not required to “maximize the potential of each handicapped child [to] ‘commensurate with the opportunity provided non-handicapped children.’”  To be sufficient, FAPE must be reasonably calculated to enable the child to receive educational benefits.

According to the plaintiff, there is a circuit split on the interpretation of the Rowley decision.  The plaintiff argues that, under decisions in the 3rd Circuit and the 6th Circuit, a child’s IEP must be reasonably calculated to provide a meaningful educational benefit.  These circuits view this standard as within the Rowley framework because, as long as the school district is not expected to maximize that individual child’s potential, there is nothing to preclude requiring more than merely “some” educational benefit, or “any” educational benefit.  The brief in opposition to petition for a writ of certiorari, filed by the defendant, states that there is no circuit split and that the use of different adjectives by different circuits does not represent different interpretive standards of the Rowley opinion.

The child in Endrew was diagnosed with both autism and attention deficit hyperactivity disorder, which affects his cognitive skills, language ability, reading skills, and social abilities.  Before he entered fifth grade, the plaintiffs withdrew their son from the school district and placed him at Firefly Autism House, a private school that specializes in educating children with autism.  They attempted to receive reimbursement from the school district for their child’s private school tuition.  The plaintiffs allege that the school district failed to provide them with adequate reporting on their son’s progress during the school years and that the school district failed to conduct a proper assessment of their son’s behavior.  Additionally, the plaintiff states that there were substantive failures in their child’s IEP, namely that the school district did not consider their son’s escalating behavioral problems when creating his IEP.

In Endrew, a due process hearing was held in administrative court; the court sided with the school district.  The decision was appealed to federal district court and later to the 10th Circuit, both of which affirmed the holding from the due process hearing.  The court stated that so long as some educational benefit was provided to the child while he was in the school district’s care, the requirements of FAPE were satisfied.

The issue in Endrew is whether the school district failed to provide the plaintiffs’ child with FAPE as required by the IDEA.

The IDEA does allow parents to pull their children out of public school and receive reimbursement for private school tuition if their child is not receiving a FAPE from the school district.  However, parents may not take unilateral action—the school district must approve the parents’ request for reimbursement before the child is placed in private school.  The issue in Endrew is whether the school district failed to provide the plaintiffs’ child with FAPE as required by the IDEA.

To determine whether a school district has provided a FAPE to a child with a disability there is a two-step inquiry based on the framework from Rowley.  The court considers: (1) whether the district complied with the IDEA’s procedural requirements; and (2) whether the IEP developed by the procedural requirements is substantively adequate.  For an IEP to be substantively adequate, it must be reasonably calculated to enable the child to receive educational benefits.  Under Rowley, if the school district has complied with both requirements then it is impermissible for the court to impose additional requirements on the school district.

The 10th Circuit stated that Endrew was, “without question a close case,” and that the child was “thriving” at the Firefly Autism House.  However, the school district did facilitate some academic progress, which is all that is required under the IDEA.  The 10th Circuit considered the district court’s judgment de novo, but they applied a modified de novo standard of review to the administrative proceedings, giving them “due weight” and presuming the factual findings of the administrative law judge to be “prima facie correct.”

An amici curie brief was filed by Autism Speaks and the Public Interest Law Center on behalf of the petitioner, the plaintiffs.  The Public Interest Law Center has worked on several autism-related litigation projects—including a class action lawsuit against the school district of Philadelphia regarding their autism transfer policy.  The argument in the amici curie brief stated that the adoption of the just-above-trivial benefit standard by the 10th Circuit can have dramatic consequences for the ability of children with disabilities to access an education, and that school districts and children with disabilities will benefit from a more clearly defined level of educational benefit under the IDEA.  In addition to their petition for certiorari, the plaintiff filed a reply brief arguing that the case law among the circuits is in “disarray.”  According to the reply brief, the 9th Circuit is internally divided on the issue, with different judicial panels adopting different interpretations.  The plaintiff’s reply brief states that the use of different adjectives by different federal circuits is not a reason to deny review, but alternatively a reason to grant it.

Currently, there is no firm date by which the Solicitor General must respond to the Supreme Court’s invitation.  However, it is extremely likely that the court will wait to receive the brief before making a decision on the plaintiff’s petition for certiorari.

Meredith Ballard, Senior Staff Writer Emeritus
About Meredith Ballard, Senior Staff Writer Emeritus (15 Articles)
Meredith Ballard is a 2017 graduate of Campbell Law School and served as a Senior Staff Writer for the Campbell Law Observer. She is originally from New Bern, North Carolina and graduated from Appalachian State University in 2014 with a Bachelor of Science in Psychology. She is also a graduate of the Mira Foundation’s guide dog program in Quebec, Canada. After her first year of law school, Meredith interned at Disability Rights North Carolina, a protection and advocacy organization tasked with providing legal representation to individuals with disabilities. During her second year of law school, Meredith’s moot court team became regional finalists in the American Bar Association’s National Appellate Advocacy Competition. During the summer of 2016 Meredith will be interning at the North Carolina Medical Board. Meredith is a member of the Campbell Public Interest Law Student Association and her interests are in health law, disability law, and employment discrimination law.