As you know, it is rare that I blog more than once a week. I do make exceptions for extraordinary situations. This is one of those situations. Yesterday, the United States Supreme Court decided Endrew The decision contains stirring language, and is a huge victory for students with disabilities with IEP’s. It will also fundamentally change the way the vast majority of school districts go about dealing with students with IEP’s. Finally, it is also going to change the lives of special education attorneys on both sides of the aisle. Let’s see why by looking at the court’s reasoning. Of course, I have some takeaways for you as well. The reader is free to read either of the categories or both.

I

Court’s Reasoning:

  1. For those interested in the oral argument that led up to this decision, check out this blog entry.
  2. The decision, written by Chief Justice Roberts, was unanimous.
  3. To say that Rowley imposed no explicit substantive standard is incorrect for several reasons: 1) the Court said that a substantive standard was implicit in IDEA; 2) the Court in Rowley had no need to say anything beyond what it did, since that case involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits; 3) the Court was not concerned in that case with precisely articulating a governing standard for closer cases; 4) the Court’s statement in Rowley that IDEA did not guarantee any particular level of education simply reflected the unobjectionable proposition that IDEA does not promise any particular educational outcome; 5) the Court stated in that case that determining whether children with disabilities were receiving sufficient educational benefits presented a difficult problem. That being the case, it would have been easy for the Court to say when educational benefits were sufficient if it had just said that any educational benefit was enough. It also would have been very strange for the Court to refuse to set out a test for the adequacy of educational benefits if the Court had already done that.
  4. IDEA is a substantive obligation.
  5. To meet the substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
  6. “Reasonably calculated,” reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials and a very fact intensive one at that. Further, that process involves not only the expertise of school officials, but also the input of the child’s parents or guardians.
  7. The key is whether the IEP is reasonable and not whether the court regards it as ideal.
  8. Since the essential function of an IEP is to set out a plan for pursuing academic and functional advancement, the IEP must aim to enable the child to make progress in a way appropriate to the child in light of his or her circumstances.
  9. IDEA requires that children with disabilities receive education in the regular classroom whenever possible. When that is the case, the system itself monitors the educational progress of the child. That is, regular examinations are administered, grades are awarded, and yearly advancement to the higher grade levels is permitted for those children attaining an adequate knowledge of the course material. Progress through that system is what the United States generally means by an education, and access to an education is what IDEA promises.
  10. For a child fully integrated in the regular classroom, an IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
  11. The IEP provisions reflect Rowley’s expectation that for most children a free appropriate public education involves integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade.
  12. Any instruction and services must be provided with an eye towards progress in the general education curriculum.
  13. For students not fully integrated in the regular classroom, his or her educational program must be appropriately ambitious in light of his circumstances just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child must have the chance to meet challenging objectives. True, this is a general standard, but nevertheless, it is definitely more demanding than “merely more than de minimus,” which is what the 10th Circuit applied.
  14. A student offered an educational program providing merely more than de minimus progress from year to year can hardly be said to have been offered an education at all. For children with disabilities receiving instruction so low, that is tantamount to sitting idly waiting for the time when they were old enough to drop out. IDEA demands more by requiring an educational program to reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.
  15. Rowley specifically rejected the view of the Endrew plaintiff that IDEA required an IEP giving a student with a disability the opportunity to achieve academic success, attain self-sufficiency, and contribute to society substantially equal to the opportunities afforded children without disabilities. While that formulation was virtually identical to a concurring opinion by Justice Blackmun in Rowley, the majority rejected that standard in clear terms. Since Congress has not materially changed the definition of a free appropriate public education since it was enacted, the Court declined to interpret the concept of a free appropriate public education in a manner so much at odds with the majority opinion in Rowley.
  16. Appropriate progress will vary from case to case and that is appropriate since the adequacy of an IEP turns on the unique circumstances of the child for whom it was created. That said, such a standard should not be mistaken for an invitation to other courts to substitute their own notions of sound educational policy for those of the school authorities they would review.
  17. It is proper to give deference to the exercise of judgment by school authorities when reviewing an IEP because the nature of the IEP process, from the initial consultation to state administrative proceeding, ensures that parents and school representatives fully air their respective opinions on the degree of progress a child’s IEP should pursue.
  18. By the time any dispute reaches court, school authorities have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. Accordingly, a reviewing court may fairly expect those authorities to offer a cogent and responsive explanation for their decisions showing that the IEP is reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.

II

Takeaways:

  1. This case will fundamentally change the way many school districts, hearing officers, and special education attorneys on both sides of the aisle go about their business.
  2. One way that it will change things is that currently the process is very adversarial in most places. Considering the primacy the court places on the IEP process and the importance of both the parent’s input and the school’s input when it comes to deference, this will force the schools to act in a much more collaborative way if they want to ensure that their IEP determination is upheld.
  3. Many schools in the past would do the advance and drop out routine, and that is not going to fly anymore.
  4. IDEA is more than just a set of procedures; it also contains substantive obligations as well.
  5. For a child fully integrated in the regular classroom, the school and the parents are going to have to work together to develop an IEP reasonably calculated to enable that child to achieve passing marks and advance from grade to grade. Instruction and services have to be provided with an eye towards progress in the general education curriculum.
  6. Every child must have the chance to meet challenging objectives. One problem that I have consistently seen is that the goals in many situations were set too low. Doing that now is inexcusable and violates this decision because every student must have the chance to meet challenging objectives, and the IEP must be appropriately ambitious for that to happen.
  7. For those students not fully integrated into the classroom, IDEA requires an educational program reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.
  8. While a thorough collaborative process will result in a court giving deference to the school with respect to the determination of whether the IEP meets the requirements of a free appropriate public education, it does seem from this decision that the burden of proof for the sufficiency of an IEP is on the school district. That is, the court may fairly expect a cogent and responsive explanation from the school district showing that the IEP is reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances.
  9. It is clear the Court believes it has set forth a clear and workable but yet flexible standard for lower courts to apply and that outside of that flexibility the Court is not looking for freelancers (i.e. courts coming up with their own standards or variations on the standard set forth by the Court).
  10. 16-0 in favor of persons with disabilities with respect to the two IDEA cases the Court had before it this term.
  11. IDEA has teeth.
  12. Advancing the student so they graduate without any skills will not fly.
  13. Setting goals that are not challenging and not appropriately ambitious for the student will not fly.
  14. Are deaf schools history? I am a member of the Deaf and hard of hearing Bar Association, and when this case came up, the impact of this decision on deaf schools naturally arose. Deaf is a different kettle of fish than other disabilities. A Deaf, culturally deaf, person is a person that is medically deaf (I qualify); ASL (never learned it; long story); and attended a state school for the Deaf (I do not qualify, as I was completely mainstreamed). A deaf person is just someone who is medically deaf (severe to profound hearing loss). As I have mentioned previously, I consider myself deaf proud, with a small d. With the incredible emphasis on mainstreaming in this decision, does this mean state schools for the deaf are in trouble? A great question, and one without an easy answer. For Deaf advocates, it means having to thoroughly show that a state school for the Deaf is going to be the most appropriate placement. For the school, it is going to mean doing everything it can to show that it is trying everything short of that. Complicating things is that if a child is deaf, the chances are very high that his or her parents are hearing. The opposite is also true where if the parents are deaf, the child is likely to be hearing. I do look for lots of litigation over whether placement in a state school for the Deaf is appropriate, since under this decision, mainstreaming is the first option. It also means that getting into a deaf school by virtue of an IEP where that is a prerequisite for admission (the case with the Atlanta Area School for the Deaf for example), may become more difficult. That said, there is another side to it. That is, this decision would also support the proposition that closing deaf schools will be much more difficult if the deaf school can show that the kids are thriving in a challenging curriculum.
  15. This decision creates even more incentive for a school system to make the IEP as comprehensive as possible. See also ¶ 16.
  16. Don’t forget about this blog entry too.

5 Responses to Endrew Decided

Great post! I particularly enjoyed the Take-aways, and wondered about the future of deaf schools also.

Julie’s comment bears further looking into. What the court has done here is establish a two-tier system. One standard for those students with IEP’s that are integrated into the regular classroom and another for those who are not. With respect to deaf education in deaf schools, would they be considered regular classrooms? In many ways, they look like regular classrooms. That is, they offer a general education curriculum, faculty, and all the trappings of a regular school. So, is that a regular classroom or not? If it is a regular classroom, the IEP’s of the students in them would be held to a higher standard than if not so considered. Also, if it is not a regular classroom, then the burden would be on the person wanting the deaf placement to show that education in the regular classroom was not possible. Finally, if it is a regular classroom, the question would become what are the educational standards that have to be met? An argument against the regular classroom in deaf schools, would be the lack of integration with the hearing community. All of this raises an interesting issue if Carlton from Switched at Birth was actually the real world. In that show, Carlton eventually becomes a school for the deaf but also a school for people interested in deaf culture who are hearing or for those students, hearing or otherwise, with no other place to go (i.e. schools that were shut down). In that situation, Carlton would have to revisit its academic standards and their IEP’s to meet the higher standard. Finally, even assuming that schools for the deaf do not have regular classrooms, schools are going to have to review the IEP’s to ensure that the IEP’s are challenging and appropriately ambitious in light of the student’s circumstances. That of course leads to the question of who gets to decide whether the IEP is challenging and appropriately ambitious in light of the student’s circumstances. Considering the IDEA system, I suppose the answer to that question, absent agreement from the school district and the parents, is the administrative hearing officer and the courts. In short, I do see this decision creating lots of opportunities for litigation with respect to whether a student can be placed in a school for the deaf and with respect to the IDEA obligations of the deaf school itself once the student is enrolled.

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