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Free Appropriate Public Education

The United States Supreme Court Will Hear Case on FAPE Standard

By Marion M. Walsh

Drew F., a fourth grade student with autism, attended public school in Colorado. According to his Parents’ petition, due to his autism, he engaged in self-harming behaviors, such as head banging, and he regularly had to be removed from the classroom. Behavioral interventions were not effective. At least two times, he ran away from school, and upon his return, he became so upset that he took off his clothing. His Parents were concerned that he was not making appropriate progress and his behavior was regressing. The student’s Individual Education Program (“IEP”) contained similar goals to the year before. His parents found a private school that could meet his needs. They exercised their right to file for due process and claimed that the school district had denied their son a free appropriate public education (“FAPE”). Yet, despite Drew’s minimal progress, an impartial hearing officer ruled that the District’s IEP had provided Drew with a FAPE because his IEP was reasonably calculated to produce “some” educational benefits. Two federal courts affirmed and rejected the application of a higher standard that other federal courts use to require “meaningful” educational benefits.

This year, the United States Supreme Court has elected to hear Drew’s case. What standard will they apply? Will only “some educational benefits” be sufficient for FAPE? A clarification of the law could improve outcomes for millions of students with disabilities in the country.

Endrew F. v. Douglas Cnty. Sch. Dist. RE-1

Specifically, the United States Supreme Court has elected to decide, based on a petition for a Writ of Certiorari, what standard applies to provide students with disabilities with FAPE, for the first time since Bd. of Educ. v. Rowley, 458 U.S. 176 (U.S. 1982). In Endrew F., the student’s parents are challenging the 10th Circuit Court of Appeals decision which held that an IEP was appropriate, based on the fact that it produced “some” educational benefits, which it interpreted to be any educational benefits “more than de minimis.” The Tenth Circuit acknowledged that other federal courts require “meaningful” educational benefits. Thus, the Court will decide what level of education benefits an IEP must offer a child to comply with the Individuals with Disabilities Education Act (“IDEA”).

At long last, the Rowley standard will come under close legal examination. The Supreme Court in Rowley, held that, to provide a FAPE, the law does not require schools to maximize the potential of children with disabilities. In Rowley, the Court found that a school district provided a FAPE to a child by providing an IEP “reasonably calculated to enable the child to receive educational benefits.” Some federal courts, such as the Third Circuit, which covers New Jersey, Pennsylvania and Delaware, require “meaningful educational benefits,” which is still a vague term.  Other courts apply an only “some benefits” standard. The Second Circuit, which covers New York, Connecticut and Vermont adheres to the minimal “some” educational benefits standard. See P. Ex Rel. Mr. and Mrs. P. v. Newington Board of Education. Yet New York courts refer to the standard as requiring meaningful educational benefits in any cases. E.g., Mrs. B. v. Milford Bd. of Educ. (2d Cir. 1997) See Walczak v. Florida Union Free Sch. Dist. (2d Cir. 2005).

Standard Requires Reform in Light of Changes in Education

Rowley rested on a depressingly low standard and the IDEA’s predecessor, the Education for All Handicapped Children’s Act, enacted in 1975. As the Supreme Court in Rowley stated:

By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful…

Rowley, 458 U.S. at 192. Few courts have questioned Rowley’s basic premise or updated the standard to comply with the mandates of the IDEA 1997 and 2004 authorizations or the No Child Left Behind Act (“NCLB”), (now the Every Student Succeeds Act “ESSA”), all of which require scientifically-based research strategies in instruction and explicit evidence of progress in the general education curriculum for students with disabilities.   Rowley may have made some sense in 1982 in an era when children with disabilities were generally excluded from standardized assessments.  In the decision, Justice Rehnquest did not examine specific student achievement or test scores.  In the thirty-four years since the Rowley decision, the expectations on the methodology that school districts utilize have drastically changed.   NCLB and ESSA require data driven decisions and requires school districts to demonstrate progress for all subgroups of students, including students with disabilities. School districts must keep this data and chart individual student progress. In conformance with higher expectations for all, courts should require at least “meaningful” educational benefits for FAPE.

What Does the Case Mean for Your Child?

The Supreme Court should utilize this opportunity to upgrade the Rowley standard and ensure that the law requires “meaningful” education benefit for children with disabilities, in alignment with the evolving law and the high expectations for all students. It remains highly unlikely that the Court will require school districts to maximize the potential of students with disabilities. Yet, a recognition that progress and education benefits must be meaningful will help all students. As always, advocacy will be necessary. Parents should continue to expect, in conformance with the IDEA:

  • Scientifically-based instructional and positive behavioral support strategies;
  • Training and professional development for staff targeted for a student’s disability;
  • Supporting the use of assistive technology devices and services to maximize accessibility for students;
  • Precise measurement and objective evidence of student progress and outcomes;
  • Attention to student social emotional needs and progress;
  • Goals and objectives that are individualized, measurable and based on knowledge of a student’s abilities and scientifically-based, rather than vague and cookie- cutter;
  • An examination of whether passing grades reflect students’ ability, as measured by careful attention to standardized test scores and student work product;
  • Transition services designed to help students lead productive and independent adult lives, to the maximum extent possible.

With advocacy, parents can improve outcomes for their child, by raising standards and awareness, for all vulnerable children.

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