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Endrew v. Douglas County: How Much Progress is Enough for Students in Special Education?

The following review of the recent Supreme Court Case Ednrew v. Douglas County is written by guest blogger David Bateman.

In what many experts predicted, the Supreme Court last month overturned the 10th Circuit ruling on what level of educational benefit is “appropriate” for students with disabilities in the Endrew v. Douglas County case. What was not widely predicted was that the ruling would be unanimous, 8-0. While overturning the ruling was the outcome disability advocates had hoped for, the decision falls short of a total victory, leaving much ambiguity on the question of how much progress students with IEPs should be expected to make.

Some background on the case: Endrew–who goes by Drew–is a student with autism who also had some behavioral difficulties. He had been educated in the same school district from kindergarten until fourth grade. Despite having an IEP and receiving a special education program, Drew’s parents did not feel he was making enough progress in the curriculum at his public school. They therefore enrolled him in a nearby private school that focuses on behavioral supports for the fifth grade.

The parents sought tuition reimbursement from the district, arguing that Drew had been denied a FAPE (Free Appropriate Public Education). The district said they would not pay the tuition at the private school because he was making “some” progress in his current public school placement.

The parents filed a lawsuit in federal district court, which ruled in favor of the school. On appeal, the 10th Circuit (one step below the Supreme Court) also sided with the school district. The court reasoned that the school district needed to try to provide Drew with an educational benefit that was “merely more than de minimis.” Under that test, it concluded, Drew’s proposed IEP was “substantively adequate.” The parents appealed to the Supreme Court, and the Court heard oral arguments on January 11, 2017.

As a part of their presentation of the case, the parents stated there should be a higher standard and school districts should move toward evaluating students with disabilities against grade-level standards. There was concern from the justices about this, in particular about the cost for school districts, about having justices with little experience in special education set the standards for the nation, and the about the reality that not all students can achieve grade-level standards due to their disability.

The district argued that Drew was receiving a personalized “appropriate” education, in accordance with the law, and that there was no need to impose a more specific standard. This was brought up several times, most notably by Justices Ginsburg and Kagan who wanted the standard to be more than a minimum standard. Specifically, they talked about “a standard with a bite.”

The case was necessary because the only other case the Supreme Court has heard about appropriateness was the Rowley case from 1982, involving a student with a hearing impairment who also had a significantly higher than average IQ. That case established the two-part test for appropriateness used by districts (and courts) since then: 1) Has the district complied with the procedures of the act? and 2) Is the child making some educational progress?

The Endrew case sought to determine how much progress is necessary, and what is really meant by “some.”

The Supreme Court ruled on March 22, 2017, siding in large part with the parents.

Chief Justice John Roberts, writing for the Court:
“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,”

“The IDEA demands more.”

However, for students who are not fully integrated in general education classrooms, Roberts wrote that individualized education programs do not need to aim for grade-level advancement, but “must be appropriately ambitious in light of (a student’s) circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.”

Further, “The goals may differ, but every child should have the chance to meet challenging objectives,” reads the opinion.

The case was sent back to the lower courts to determine if Drew should receive tuition at the private school.

While heralded as a victory by many disability advocates, we now face the problem of having a clear standard for students who are working toward grade-level standards, but not for students like Drew. It is likely that families like Drew’s will now continue to turn to litigation to help determine appropriateness. While there is an expectation for advancement and having the student make progress, the question of how much remains unanswered. Whether or not this ruling truly constitutes a victory remains to be seen over the next several years as litigation using this case percolates up the system.

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