Members of the Special Education Law world are all too familiar
with the car analogy that stigmatizes services for students with
disabilities. Massachusetts' In Re: Arlington Public
School, BSEA # 02-1327 included reference to this analogy that
"The [IDEA] requires . . . the educational equivalent of a
serviceable Chevrolet to every handicapped student" rather than "a
Cadillac solely for [student's] use."1 Regardless of
their make, every state's vehicle warranty is set to expire during
this term of the Supreme Court. The Supreme Court of the United
States will speak to the appropriate standard of educational
benefit required for students with disabilities under the
Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et
seq. (IDEA).
On September 29, 2016, the Supreme Court granted review of the
Tenth Circuit case Endrew F. v. Douglas County School District
RE-1, where parents argued for a higher level of educational
benefit for their child, Endrew F. (Drew). Drew is a resident of
Douglas County Schools eligible to receive special-education
services based on the diagnoses of Autism and Attention
Deficit/Hyperactivity Disorder.2 On appeal, parents
sought reimbursement for their unilateral placement of Drew because
they believed his educational program in Douglas County School
District did not provide Drew with the opportunity to make
meaningful progress.3 In order to qualify for unilateral
placement reimbursement, parents were required to prove denial of
Drew's rights under IDEA.4
IDEA provides students with disabilities the right to a Free
Appropriate Public Education (FAPE).5 The Act defines
FAPE as, "special education and related services that (a) have been
provided at public expense, under public supervision and direction,
and without charge; (b) meet the standards of the State educational
agency; (c) include an appropriate preschool, elementary school, or
secondary school education; and (d) are provided in conformity with
the individualized education program required under section 1414(d)
of this title."6
Most often, FAPE is achieved through the development and
implementation of an Individualized Education Program
(IEP).7 The Supreme Court last spoke to the substantive
standard required under IDEA in their 1982 decision in Board Of
Education v. Rowley.8 The Supreme Court required a
student's IEP be "reasonably calculated to enable the child to
receive educational benefits."9
The Tenth Circuit Court of Appeals reviewed procedural and
substantive violations alleged by the parents to determine whether
the District's actions resulted in a denial of FAPE.10
Specifically, the parents argued procedural error when the District
failed to provide adequate progress reporting and failure to
conduct proper behavioral assessments in order to implement an
adequate plan to address Drew's behavioral needs.11 The
Tenth Circuit agreed with the administrative law judge and District
Court that the District's progress reporting did not result in a
denial of FAPE because the parents were aware of Drew's progress
through constant contact with the educators.12
Additionally, the Tenth Circuit determined the District complied
with the minimal federal law requirement to consider behavior
intervention.13
The parents' substantive challenges included error in the legal
standard used to evaluate the substantive sufficiency of Drew's IEP
and the conclusion of substantive adequacy of Drew's
IEP.14 In quoting Rowley, the Tenth Circuit
emphasized Congressional aim to create a "basic floor of
opportunity," not "guarantee educational services sufficient to
maximize each child's potential."15 The Tenth Circuit
affirmed the administrative law judge and District Court applied
standard that, "the measure is whether the IEP is reasonably
calculated to guarantee some educational benefit, not whether it
will do so."16
Circuit Courts remain divided on the FAPE standard requirement.
To quote the Petition for Writ of Certiorari, "[t]he courts of
appeals are in disarray over the level of educational benefit that
school districts must confer on children with disabilities to
provide them with a free appropriate public education under the
IDEA."17 The Tenth Circuit noted in Endrew F.
that while some circuits apply Rowley as requiring "some
benefit" others require a higher standard of "meaningful
educational benefit."18
The Supreme Court's review of Endrew F. will impact
students with disabilities, their families, and school systems
throughout the country in efforts to provide national uniformity on
FAPE. Certainly, a consistent objective standard for FAPE will be a
benefit to all in regards to clarity. However, in Massachusetts the
uncertainty in the Supreme Court's decision is the possibility for
an attack on the services received by students with disabilities.
In Massachusetts, the substantive standard required for a student
with disabilities is, "services that are reasonably calculated to
permit a student to make meaningful educational progress.
Meaningful educational progress includes "effective results" and
"demonstrable improvement"… and is evaluated in the context of the
student's educational potential."19 The standard adopted
by the Supreme Court as consistent with the requirements under IDEA
could produce considerably different results for the services
received by students with disabilities as well as future case
outcomes. The Supreme Court will ultimately settle whether IDEA
requires services comparable of a Chevrolet or Cadillac for
students with disabilities.