Takeaways from Recent Special Ed Caselaw

SCOTUS Redefines Educational Benefit: Far More Than De Minimus 

By Lisa Kovacs, Hands & Voices HQ

Endrew F. was a student with autism attending a public school in Colorado from kindergarten through 4th grade. Over time, his parents became concerned that he was essentially offered the same set of IEP (Individualized Educational Program) goals, services and accommodations. When the team proposed a similar IEP yet again for 5^th grade, the parents moved him to a private school for children with autism. Their child’s progress improved significantly, both in behavior and academically. The parents asked the district for private school tuition reimbursement.

The parents lost their claim three times through due process and two appeals. While the courts agreed that Endrew’s progress was minimal, the Tenth Circuit court concluded that Endrew had “received FAPE” under the prior definition of “educational benefit that is merely more than de minimus”. De minimus means “too trivial or minor to merit consideration” as Merriam Webster defines the term. The parents took the case to the Supreme Court, who agreed to hear the first case in many years that challenged a longstanding definition of educational benefit required by FAPE (the principle of Free Appropriate Public Education described in IDEA, or the Individuals with Disabilities Education Act). 

Redefining Educational Benefit in IDEA

The Supreme Court of the United States (SCOTUS) overturned the decision of the Tenth Circuit with a new definition of what constitutes educational benefit.

The Supreme Court looked at previous definitions of educational benefit. In the case of Board of Education of Hendrick-Hudson Central School District v. Rowley. 458 U.S. 176 (1982), young student Amy Rowley was found NOT to need a sign language interpreter because, even without this access service, she was advancing from grade to grade in general education classes. Interestingly, the Rowley decision likely wouldn’t hold today under the ADA principle of equal access to education. The Endrew decision raised the standard of educational benefit beyond de minimus by stating that while “advancement from grade to grade is appropriately ambitious for most children in the regular classroom; for students with disabilities, their educational program must be appropriately ambitious in light of their circumstances;”and “while goals may differ, every child should have the chance to meet challenging objectives.” (US DOE Questions and Answers on U.S. Supreme Court Case Decision, Endrew F. v. Douglas County School District Re-1, December 7, 2017) 

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…The IDEA demands more.” The Endrew F. case has far-reaching implications for all students, including those who are deaf/hard of hearing and deaf plus. 

How does this decision impact families?

The SCOTUS says that all children should have the opportunity to meet challenging objectives. Progress must be appropriate in light of the child’s circumstances, and IEPs should reflect the uniqueness of each child. This decision clearly articulated a shift to higher expectations for children served through IEPs, including children who are deaf or hard of hearing. A recent webinar through National Place stated that Endrew F. is a new tool for enhancing parent voices at the IEP table. Stalled academic, social, or functional progress should trigger additional evaluation and/or differing supports and approaches if a child is not making progress. Teams are asked to look back at how special education and related services was provided in the past, including the effectiveness of instructional strategies and supplementary supports. The educational team, which includes the parents, must give “careful consideration to the child’s present levels of achievement, disability, and potential for growth.” 

Scripting New Questions

On a practical level, advocates can work with parents to incorporate the terms highlighted in the Endrew case into their communication with IEP teams. The following questions may serve as a jumping off point in exploring the raised standard of educational benefit: 

• Are we carefully considering my child’s present levels, current progress to date, and potential for growth? 
• Have we considered my child’s previous rate of growth?
• If progress is not as expected, what shall we change in terms of approach, instructional effectiveness, or supports?
• Is my child on track to achieve or exceed grade level proficiency?
• Is there any behavior interfering with progress?
• Has my input been carefully considered?
• Are these goals appropriately ambitious?
• Are the objectives challenging?
• Is this IEP reasonably calculated for significant learning and advancing from grade to grade?
• Is this IEP reasonably calculated to help my child make appropriate progress in light of my child’s circumstances?

For more resources about this important case, see the following:

US DOE Questions and Answers on U.S. Supreme Court Case Decision, Endrew F. v. Douglas County School District Re-1, December 7, 2017. https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-endrewcase-12-07-2017.pdf

Understood/National Center on Learning Disabilities – Endrew Advocacy Toolkit: https://www.bit.ly/endrew-toolkit including Endrew F: Talk Points to Advocacy for your Child and the Endrew F. Worksheet for Improving Your Child’s IEP

https://www.parentsatthetable.org/storage/app/media/resources/Main%20Resources/?dir=Endrew%20F.%20Webinar National Place webinar: A New Tool for Enhancing the Parent Voice at the IEP Table, 2-5-18.   

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H&V Communicator – Winter 2019