On March 22, 2017, the United States Supreme Court decided the case of Endrew F. v. Douglas County School District in which it revised the national standard for determining whether a special education student has received a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). On December 7, 2017, the United States Department of Education (“DOE”) issued a Questions and Answers (“Q&A”) document on this important case.
In short, the Endrew F. Court held, “To meet its substantive obligation under the IDEA, a school must offer an [individualized education program] reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” For a full analysis of Endrew F., please see our previous article here.
The DOE’s Q&A provides an overview of the case, clarifies the IDEA’s FAPE requirement, and offers considerations for implementation.
The DOE emphasized that prior to Endrew F., the Federal District Courts and Circuit Courts disagreed on the substantive standard of FAPE. The Tenth Circuit, the Circuit Court from which Endrew F. arose, had previously applied a “de minimis” standard, which the Supreme Court clearly rejected. Importantly, the Third Circuit, which applies to New Jersey, Pennsylvania, Delaware and the Virgin Islands, never applied a de minimis standard. In fact, it can be argued that the “meaningful educational benefit” standard used in the Third Circuit was already congruent with the Supreme Court’s ruling in Endrew F.
In explaining the “reasonably calculated” standard, the DOE stated that the IEP team for the student should consider the following factors: the progress of the child and previous rate of academic gains, child’s potential for growth, views of the child’s parents, effectiveness of specific instructional strategies, supports, and services provided to the child in the past, whether the child is achieving grade-level expectations, and whether the child exhibits any behaviors that are interfering with progress. The DOE echoed the Court’s sentiment that the standard is not whether an IEP is ideal, but whether the student will likely make progress.
The DOE did not set forth any specific factors in interpreting the Court’s requirement that an IEP enable a student to make “progress appropriate in light of the child’s circumstances.” Instead, the DOE emphasized language from the Court’s decision that the IEP team consider the student’s present levels of achievement, disability, and potential for growth.
In advising on best practices, the DOE stated that IEP teams must implement policies, procedures, and practices relating to:
(1) identifying present levels of academic achievement and functional performance;
(2) the setting of measurable annual goals, including academic and functional goals; and
(3) how a child’s progress toward meeting annual goals will be measured and reported.
You can review the complete Q&A here.
