This summer, the Vermont Agency of Education released a memo outlining the implications of the United States Supreme Court decision Endrew F. v. Douglas County School District RE-1, 69 IDELR 174 (2017). This post will help parents and families in Vermont understand how administers and special education staff will apply the Court’s unanimous decision from March 22, 2017. Specifically, how school districts will meet its obligation to provide students with a free and appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA), in light of the standard to “offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
The case revolved around a central question: Must schools provide a meaningful education in which children show significant progress and are given substantially equal opportunities as typical children, or can they provide an education that results in just some improvement?
The parents of Endrew F. removed him from his local public school, where he made little progress, and placed him in a private school, where they said he made “significant” academic and social improvement. Endrew F. was diagnosed with autism at age two and qualified as a child with a disability under the IDEA who is entitled to a FAPE. He attended public school from preschool through fourth grade and each year his IEP team drafted an IEP that addressed his educational and functional needs. In fourth grade, his parents became dissatisfied with his progress in that he still exhibited behaviors that limited his ability to access learning in the classroom.They ultimately removed Endrew and placed him in a private school.
In 2012, the parents filed a complaint with the Colorado Department of Education to recover the cost of tuition at the school, which is now about $70,000 per year. The lower courts ruled on behalf of the school district on the grounds that the intent of the Individuals with Disabilities Education Act (IDEA) is to ensure handicapped kids have access to public education—not to guarantee any particular level of education once inside. But the parents appealed, with the case eventually landing at the Supreme Court.
This sets a new standard that diverges from what was established in Board of Education of the Hendrick Hudson Central School District v. Rowley, 553 IDELR 656 (U.S. 1982), and rejects the 10th Circuit Court of Appeals’ opinion that FAPE is met if an educational program provides “merely more than de minimis” benefit.
This decision can be viewed as a monumental result that empowers parents and will provide more opportunities for millions of students. For the 2013-14 school year, 6.5 million students—or 13 percent of the public- school population—received an Individual Education Plan (IEP). However, as the VT AOE points out the Court did not elaborate on what “appropriate” progress will look like from case to case, noting that adequacy of a given IEP will depend upon the unique circumstances of the child for whom it was created.
Regardless of the broad nature of the decision parents should understand that Vermont schools must provide educational programs that provide “merely more than de minimis” benefit. In particular, IEP teams are directed by AOE to meet their obligations under this new standard by doing the following:
- Avoid procedural violations that could constitute a denial of FAPE. For example, in order to avoid some of the most frequent violations:
- Give parents the opportunity to participate in any decision making related to their student’s disability.
- Placement decisions must be made based on the student’s unique needs and circumstances and must never be pre-determined by the IEP team.
- All members of the IEP team must be present during an IEP meeting unless other arrangements are made prior to the meeting.
- Understand that FAPE and educational benefit/progress are assessed based upon an individual student’s unique needs and abilities and offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
- When developing the content of a student’s IEP and subsequently reviewing it, must be sure that the present levels of performance and annual goals are based upon data and needs that are current.
- IEP teams must ensure that the annual IEP goals are appropriate and measurable.
- Measure progress on annual goals (and objectives/benchmarks, if applicable) and have specific data available to demonstrate that progress has been made.
- Reconvene if the student is not making sufficient progress on a regular basis.
- Do not recycle or reuse present levels or goals, particularly where the student has not made progress on the goals.
Do not rely only on grades or advancement from grade to grade as evidence of a FAPE or educational benefit. Careful progress monitoring of IEP goals through specific data collection and analysis will provide an additional and more reliable measure of a student’s progress.
In the end, Endrew F. requires that the IEP team must be able to “offer a cogent and responsive explanation for their decisions that shows a disabled child’s IEP is reasonably calculated to enable the child to make progress appropriate in light of his [or her] circumstances.”