United States Supreme Court Raises the Bar for Schools
by Sherry A. Wilds, Senior Disability Rights Attorney
Many advocates for students with disabilities will sometimes hit a brick wall when advocating for appropriate goals and services in schools because the legal benchmark for schools is often very low. School systems often state a student has made “some progress” which is all that is required. In other cases, the school system may claim goals that are barely met—and basically repeated from year-to-year—provided the student with Free Appropriate Public Education as required under the IDEA (Individuals with Disabilities Education Act). The good news is that on March 22, 2017, the United States Supreme Court (the Supreme Court) set a higher standard in Endrew F. v. Douglas County School District. This important case may open the door for advocates (including parent advocates and student self-advocates) to have clearer legal ground for higher expectations of schools to educate students with disabilities.
The current standards schools cite come from the 1982 Rowley case. Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) involved Amy Rowley, a deaf student, whose school refused to provide a sign language interpreter. Amy had an Individualized Education Plan (IEP) and was included in regular classes with some tutoring and speech therapy. She was able to get passing grades and advance to the next grade level without the specific services the parents were requesting. In siding with the school system, the Supreme Court in Rowley used Amy’s advancement from grade-to-grade as one indicator she had received educational benefit but also recognized that the IDEA required schools to educate students with a wide range of disabilities. The Supreme Court stated it was restricting its holding to the fact of this case and did not establish a test for appropriateness of an IEP that would be applicable to all students with disabilities. Unfortunately, some school systems and courts took the language of “some educational benefit” from this case and interpreted that to mean schools were only required to show slightly more than no benefit. Lower courts frequently ruled against parents, interpreting Rowley to mean that for students who may not be in the regular classroom, their IEP is appropriate as long as it provides more than de minimis (bare minimum) benefits.
In contrast to Rowley, the Endrew F. case deals with the standard of appropriateness for all other students with disabilities who have IEPs. Endrew F. was a fifth grader diagnosed with autism who had received special education services from preschool to fourth grade. The school carried over the same goals from year-to-year and the parents’ position was that he made little progress. The parents enrolled him in private school where he made academic and behavioral progress. They asked for reimbursement from the public school system for the private school tuition. The 10th Circuit Court of Appeals held for the school district, using its interpretation of Rowley in determining the standard of appropriateness of an IEP.
In an 8-0 decision, the Supreme Court sent the case back to the 10th Circuit Court of Appeals to apply the standard set forth in Endrew F. that states “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County School District, slip op. at 11 (March 22, 2017). In the opinion, Justice Roberts stated that even if progressing grade-to-grade were not possible, schools must provide a program that is “appropriately ambitious in light of” the child’s circumstances. He further wrote, “the goals may differ, but every child should have the chance to meeting challenging objectives.” Contrasting with previous decisions that used language from Rowley, Justice Roberts wrote that “…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. For children with disabilities, receiving instruction that aims so low would be tantamount to sitting idly…awaiting the time when they were old enough to drop out.” Id at 14.
What does this case mean for students with disabilities and the people advocating on their behalf? As end-of-year IEP meetings are happening all over Tennessee, schools have obligations to explain their students’ progress over the last school year and engage in developing an appropriate IEP for 2017-2018 that meets the higher standard of Endrew F. This doesn’t mean the standard is “best” but it does appear to mean the goals must be appropriately challenging and the standard for progress is certainly higher than the slightly more than the bare minimum standard cited by many school systems and courts. Only time will tell how this case will ultimately impact the education of students with disabilities. However, it remains the hope of disability advocates that this case will indeed result in students with disabilities getting the education they deserve.