April 9, 2017
Endrew F. v. Douglas County School District: Recognizing that Merely More than De Minimis is Not Appropriate for Special Education
On March 22, 2017, the Supreme Court issued their unanimous decision in Endrew F. v. Douglas County School District.1 This decision was undoubtedly a monumental win for individuals with disabilities, their families, and disability advocates who have long fought for quality public special education. The Court corrected the Tenth Circuit’s misinterpretations of its ruling in Board of Education of Hendrick Hudson Central School District, Westchester City v. Rowley,2 to ensure that students with disabilities were not only afforded “some educational benefit”3 that was “merely . . . more than de minimis.”4 The Court instead clarified that, under the Individuals with Disabilities Education Act (“IDEA”),5 a student with a disability had a right to an individualized education plan (“IEP”)6 “reasonably calculated to enable a child to make progress in light of the child’s circumstances.”7 While this clarification certainly raises the bar for special education, it still leaves room for inequities where educators mischaracterize the child’s circumstances and ability to achieve educational progress.
Unfortunately, problems with quality special education in public schools is nothing new. A principal, when discussing public middle school special education with my mother, once said, “with kids like that, we just do the best we can.” This was the philosophy of a school my brother, Sean, who has an autism spectrum disorder (“ASD”), was supposed to attend starting in sixth grade. For this principal, the “best” was minimal aide instruction in a classroom with students without disabilities, or more individualized instruction for children with disabilities in basement classrooms with no windows.
Like the parents in Endrew F., my parents faced a difficult choice. Would they continue to fight for the quality of my brother’s education in that public school, or begin a lengthy and expensive process of getting him moved to a private school? After seeing the basement classrooms, they understandably opted for the latter. It took eighteen months of evidence gathering, meetings with a clinical social worker, and retaining an attorney that would challenge the adequacy of my brother’s education in court, before the school district conceded that it was not providing an adequate education and agreed to pay for private special education, starting in fifth grade.
Here, the petitioner, Endrew F. (“Drew”), and his parents were not so fortunate. Much like my parents and the parents of so many children with disabilities, Drew’s parents identified serious problems with the education he was provided in public school. Drew was diagnosed with autism at age two, and his disability affected his “cognitive functioning, language and reading skills, and his social and adaptive abilities.”8 Drew’s parents worked with the respondent, Douglas County School District, each year from preschool through fourth grade to develop an IEP that allowed him to meet both functional and traditional academic goals.9 However, helping Drew manage his functional difficulties perplexed the school district to such a degree that by fourth grade his IEP looked nearly the same as the previous year.10 His special education teacher claimed she was “‘unable to discern’ any way to prevent his disability-related challenges from impeding his educational progress.”11
With the school district essentially giving up on functional progress, Drew’s academic progress stalled and his behaviors posed a danger to him. He ran away from school at least twice, and struggled to stop self-harming behaviors like head-banging.12 When presented with a fifth grade IEP that did absolutely nothing to address these behaviors, Drew’s parents moved him to a private school that specialized in educating children with autism.13 Drew’s improvement was nearly immediate. In four months at the school, educators brought his behavioral struggles under control, provided him with speech therapy, and even taught him multiplication.14 Drew’s parents then sought reimbursement for their tuition expenses, but the school district maintained that it had met the IDEA requirements.15
The IDEA provides children with disabilities with a substantive right to a “free appropriate public education” (“FAPE”).16 However, as the Court recognized in Rowley, the statutory definition of a FAPE “tend[ed] toward the cryptic rather than the comprehensive.”17 To provide a FAPE to a student with a disability, the participating state is required to provide the student with appropriate special education and related services that conformed with an IEP and the standards of the state educational agency, at the public expense.18 To meet the IEP requirement, the school must make a plan that contains “a statement of the child’s present levels of academic achievement and functional performance,” “a statement of measurable annual goals,” and a description of how the progress toward those goals will be measured.19
The question for the Court in Rowley and Endrew F. was what level of educational benefit constituted a FAPE. In Rowley, it was fairly easy for the Court to conclude that the child, Anna Rowley, was receiving an appropriate education. Anna, who had impaired hearing, received support to enable her to hear her teachers in the classroom.20 And, although her parents contended that she required a sign language interpreter for further aid, she nonetheless thrived in the classroom and performed better than other students in her class.21
In Endrew F., the Tenth Circuit cherry picked language from Rowley, where the Court applied the IDEA to a high-performing student, and concluded that, despite the difference in disability, as well as functional and academic achievement, the school district still only needed to do very little to properly educate Drew within the IDEA requirements. The Rowley Court specifically limited their analysis to the case before it, recognizing that the “wide spectrum” of children with disabilities for which the IDEA requires education made it difficult “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.”22 Because of this difficulty, the Court rejected the Tenth Circuit’s analysis of Rowley, concluding that “[i]t would not have been ‘difficult’ for us to say when educational benefits are sufficient if we had just said that any educational benefit was enough.”23
More importantly, the standard described by the Tenth Circuit flew in the face of Congress’ legislative intent in passing the IDEA. The IDEA was passed “in response to Congress’ perception that a majority of handicapped students in the United States ‘were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’”24 Thus, the Court concluded that “[a] substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”25
An IEP that takes a child’s unique needs into account, while still being reasonably calculated to enable a child to make progress, is preferable than some minimal assistance that provides no benefit at all. But the problem future courts must face is what—or rather, who—determines the child’s circumstances, and what exactly makes the IEP reasonably calculated. The Douglas County School District likely would have considered Drew’s IEP reasonable in light of his circumstances. His own special education teacher saw his behavioral problems as so severe that there was virtually no change in goals that could be put in the IEP. It was only when Drew showed such remarkable progress in a private school setting that it was clear the public school had failed him.
Perhaps there are circumstances where a child with a disability simply cannot receive an appropriate education at a public school. Even if the Douglas County School District had made a more concerted effort to provide reasonable goals in his IEPs, it is unclear whether they would have been able to help Drew achieve the demonstrable progress he achieved at the private school. For children with ASDs, sometimes public school is simply inappropriate. Schools dedicated to educating children with ASDs have more resources and training to provide individualized education. Without my brother’s private school, he would not be able to read. Without Drew’s private school, he would not have been able to overcome behavioral difficulties long enough to learn grade appropriate math skills. The Court was not presented with this question, but it bears consideration if the IDEA is truly designed to allow a child with a disability to make educational and functional progress. The parents of children with disabilities will be pleased to know that their children can now expect more than a minimal benefit from public education. Yet parents seek the very best for their children, and if private schools can better provide that for children with disabilities, perhaps they are the more reasonable option for the student’s progress.
Shannon Rohn is currently an attorney with Healthcare Legal Solutions, a firm representing hospitals and health systems in third party payer collections. She is a 2016 GW Law graduate with experience in disability law, including an internship with the Quality Trust for Individuals with Disabilities, coursework in disability law, and participation in GW Law’s founding chapter of Active Minds. Shannon’s younger brother, Sean, has Asperger’s syndrome, and their family’s struggle to find him quality educational services inspired her to become a lawyer.
- No. 15-827, slip op. (U.S. Mar. 22, 2017).
- 458 U.S. 176 (1982).
- See Endrew F. v. Douglas Cty. Sch. Dist., 798 F.3d 1329, 1338 (10th Cir. 2014) (emphasis added).
- See id. (quoting Rowley, 458 U.S. at 200 (emphasis added by Tenth Circuit)).
- 20 U.S.C. § 1400 (2012).
- See § 1414(d)(1)(A)(i).
- See Endrew F., slip op. at 16.
- See id. at 6; Brief for the Petitioner-Appellant at 8, Endrew F., (No. 15-827 May 2, 2016).
- See Endrew F., slip op. at 6.
- Id. at 7.
- Brief for the Petitioner-Appellant, supra note 8, at 9.
- See Endrew F., slip op. at 7.
- Brief for the Petitioner-Appellant, supra note 8, at 10–11.
- See Endrew F., slip op. at 8.
- See 20 U.S.C. § 1412(a) (2012); Endrew F., slip op. at 5 (discussing the substantive requirements of the Individuals with Disabilities Education Act explained in Rowley).
- See Endrew F., slip op. at 5 (quoting Rowley, 458 U.S. at 188).
- See § 1401(9)(A)-(D).
- See § 1414(d)(1)(A)(i)(I)-(III).
- See Endrew F., slip op. at 3.
- See id. at 3–4.
- Id. at 5–6 (quoting Rowley, 458 U.S. at 202).
- Id. at 10.
- Id. at 11 (quoting Rowley, 458 U.S. at 179).
Recommended Citation Shannon Rohn, Response, Endrew F. v. Douglas County School District: Recognizing that Merely More than De Minimis is Not Appropriate for Special Education, Geo. Wash. L. Rev. On the Docket (Apr. 9, 2017), http://www.gwlr.org/endrew-f-/.