AASA Analysis of Endrew Ruling
As written about
previously in the blog,
AASA led an amicus
brief to the Supreme Court in the Endrew
v. Douglas County School District case. Yesterday, the Court released its decision in
the case and rejected the standard that the petitioner, Endrew, was hoping
the Court would adopt. AASA vigorously attacked the standard proposed by the
petitioner in our brief because it was 1) far in excess of the intent of IDEA
or the standard articulated in the Rowley decision, 2) not practical for
students or districts and 3) enormously expensive and complicated to meet.
However, we felt differently about the standard for educational benefit
proposed by the Government, which we felt was much closer to what school
districts currently use when crafting IEPs. The 8-0 decision by the Supreme
Court rejected the petitioner’s standard that a FAPE requires a child the
opportunity to “achieve academic success, attain self-sufficiency, and
contribute to society that are substantially equal to the opportunities
afforded children without disabilities.”
As AASA and
others pointed out, the Court noted that Congress has reauthorized IDEA several
times without overruling the Rowley decision (or changing the definition of
FAPE itself) which had rejected a similar potential-maximizing FAPE standard.
The “revised” FAPE standard set by the Court is that a school district must
offer an IEP “reasonably calculated to enable a child to make progress in light
of the child's circumstances.” This standard is much more measured than the
standard that the petitioner’s proposed and that AASA vigorously opposed.
While this is undoubtedly
a new standard for FAPE, it is one with little substance or new meaning. Courts
can no longer say they’re applying a “merely more than de minimis standard.” However,
the Court replaced that standard with a standard that the “educational program
must be appropriately ambitious in light of a child’s circumstances, which it
suggested a school could establish by “offering a cogent and responsive
explanation for its decisions that shows the IEP is reasonably calculated to
enable the child to make progress appropriate in light of his circumstances.” The Court claims that their new standard is “more
demanding” than the 10th circuit standard, but it’s not clear whether
a court that previously said progress must be “nontrivial” and “more than de minimis”
would suddenly start deciding cases differently. Courts have always considered
what is “appropriate” in light of the child’s circumstances. The hallmark of
the law is individualization, which a prescriptive standard like the one sought
by the petitioner simply cannot achieve. Moreover, the Court gives considerable
deference to the expertise of educators in determining what individual progress
would be appropriate for a student. Indeed, one of the problems the petitioner
and Government faced all along was that they could not give a concrete example
to illustrate how the difference in the standards used by the courts made any
substantive difference or why the standard adopted by most districts and
circuits was not working well.
Bottom line: Every circuit must adopt the Court’s new language, but
whether that leads to a standard that is more demanding in practice is hard to
say. AASA is fairly confident that the vast majority of school districts are
already crafting IEPs that enable a child to make progress in light of the
child’s circumstances. That said, districts should take care to make sure that
they can provide “a cogent and responsive explanation” for the IEPs they
produce, particularly for students who are not expected to perform on
grade-level. In conclusion, this is a ruling that both the disability and education
community can accept as it does not dramatically change the district practices
or undermine Congressional intent.