Free Appropriate Public Education Equal Access to Opportunity

The Supreme Court first interpreted the Individuals with Disabilities Education Act (IDEA) thirty-five years ago. At that time, it ruled that Congress meant the words “free appropriate public education” to have meaning, rather than be a mere aspiration. Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 (1982).

Back then, the Court rejected the argument that IDEA required “equal education opportunity.” This week it stayed that course, ruling that IDEA does not promise “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” Endrew F. v. Douglas County School District, 580 U.S. __ (2017).

Free Appropriate Public Education Support to Maximize One’s Potential

In Rowley, a hearing impaired child, Amy Rowley, was performing better than “the average child in her class” and was “advancing easily from grade to grade. The district offered an FM hearing aid with a wireless transmitter. Her parents sued demanding she also be given a sign language interpreter. They argued that she was missing a portion of the classroom discussion and was not being given an equal educational opportunity. The Court determined that so long as the student was achieving at the level of an average student, the services provided were enough.

Free Appropriate Public Education = An Individualized and Just Education

Since Rowley, lower courts have struggled with deciding how much was enough. On March 22, 2017, the Supreme Court unanimously defined the minimum standard as a plan reasonably calculated to allow a disabled student to receive educational benefits.

As we say in law, cases turn on facts. In a moment you’ll understand why I sum this case up as standing for the proposition that refusing to modify a plan that has not been effective when presented with a plan proven to work is a fail.

Endrew F. was diagnosed with autism at age two. Ender, described as humorous and sweet, would scream, run away, and climb over other students or furniture.
Endrew attended public school from preschool to fourth grade. His IEP each year “carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress toward his aims.”

Insanity = Doing the Same Thing Expecting Different Results

When his parents were presented with a fifth grade IEP that was identical to those presented before, they realized it was time for a change. They enrolled him in a private school specializing in the education of autistic children.

Applying behavioral intervention, the school found methods that worked for Endrew. “Within months, Endrew’s behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school.”

The Supreme Court Expects School Officials to Exercise Judgment

Six months after Endrew began at the private school, his public school again offered his parents essentially the same IEP as before. No effort was made to incorporate any of the learning about Endrew from his private school experience.

Following the procedures of IDEA, Endrew’s parents began the administrative and legal process of seeking reimbursement from the state of Colorado for the cost of Endrew’s private school tuition. As part of that process, district and Tenth Circuit courts concluded that school had met its burden of offering “some educational benefit” and nothing more was required. This standard had evolved in the Tenth Circuit in the absence of guidance from the Supreme Court about the minimum level of service required.

The Supreme Court reversed. It ruled that school officials were required to consider Ender F.’s specific circumstances. “A focus on the particular child is at the core of the IDEA. The IEP must be ‘specially designed’ to meet a child’s ‘unique needs.'”

Chief Justice Roberts, writing for the unanimous court, reminded the Tenth Circuit that IDEA arose from a desire by Congress to end an age when disabled children were “either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out’.” An acceptable IEP must do more than recreate the pre-IDEA universe.

IDEA Entitles Children to Justice, But Not Equality

The decision gives schools specific guidance. An IEP must be the result of an individualized process that considers a child’s

  • present level of achievement,
  • present level of disability, and
  • potential for growth.

Simply reissuing a prior IEP without updating it to reflect current knowledge is not acceptable after Endrew F. These elements are more than a mere checklist, they represent an enforceable standard. The IEP must result in “a level of instruction reasonably calculated to permit advancement through the general curriculum.” Endrew’s school and the Tenth Circuit both failed to account for his increased potential for growth toward standard when the private schools behavioral methods were applied.

In a tacit acknowledgment that its decision will lead to more litigation, the Court orders lower courts to exercise deference when school officials apply their “expertise and exercise of judgment.” At the same time, deference must be earned. School officials are expected “to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in the light of his [or her] circumstances.”

Where does the confluence of Rowley and Ender F. leave us?

The situation is largely unchanged for twice exceptional children: IDEA does not provide underachievers with a path to receive services to perform at their ability; it merely provides them with a path to perform as well as an average student.

The first wave of cases will come from parents whose children improved after being removed from public school. For those parents who will can identify specific interventions that are reasonable within a public school setting, schools will need to provide those services or expect to lose lawsuits seeking reimbursement and/or services. We can expect the second wave to involve similarly situated students who have not been removed from public school.

For school districts that are responsive and individualized in their IEP process, this decision should have minimal impact. For districts that refused to consider data about a child from sources external to the public school, a major revision of policy and practice is in order.