On September 29, 2016, the Supreme Court of the United States agreed to hear the case of Endrew F. ex rel. Joseph F. v. Douglas County School District RE 1, Docket No. 15-187 to decide the question “What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.?” See Appellant’s Petition for Certiorari. At issue is how courts have applied the well-known Rowley FAPE standard, announced by the Supreme Court in 1982, which provides that a school district must provide an individualized education program that allows a child with a disability to receive “educational benefit.” See Bd. of Educ. v. Rowley, 458 U.S. 176, 200 (1982). The Rowley case expressly rejected a potential-maximizing FAPE standard. Id. at 198-99. Since Rowley, lower courts subsequently have described the Rowley standard as ranging from requiring “some” or merely “more than trivial” benefit to requiring “meaningful” benefit. Congress has amended what is now known as the IDEA several times since the Rowley case, most notably in 1986, 1990, 1997, and 2004, but Congress has never expressly provided a standard by which to analyze whether a child’s programming and services substantively provide the child with FAPE.
The Endrew F. case began in Colorado on behalf of a student who was diagnosed with autism. The Student attended public school in the Douglas County School District (DCSD). However, in May of his fourth-grade year, his parents withdrew him from the public school system and enrolled him in a private school that specializes in educating students with autism. While at the private school, the Student was able to make academic, social, and behavioral progress. In contrast, while attending public school, the Student frequently left the classroom, defecated in the “calming room,” engaged in tantrum behavior, such as crying, yelling, and kicking, and climbed on top of classroom furniture. See Endrew F. v. Douglas County School District RE 1, Docket No. 12-cv-2620-LTB, 2014 WL 4548439 (D. Colo. Sept. 15, 2014).
An administrative law judge (ALJ) held a hearing on June 6 through 8, 2012, and issued a decision on July 9, 2012, in which she concluded that the DCSD had provided the Student with a Free and Appropriate Public Education (FAPE) during the time he was enrolled in public school and would have continued to do so had his parents not transferred him to a private school. See id.
The Student’s parents appealed to the United States District Court for the District of Colorado. The District Court agreed with the ALJ’s finding that the Student made “some progress” toward meeting the goals and objectives described in his Individualized Education Program (IEP), and therefore the DCSD had not denied the student FAPE. See id. It held that the parents failed to meet their burden of demonstrating that the DCSD failed to provide the Student with FAPE. Id. at *12.
The Student’s parents appealed to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit stated that the IDEA “does not prescribe the substantive level of achievement required for an appropriate education. Rather, the substantive adequacy of an IEP is determined by a standard articulated by the Supreme Court: the IEP must be ‘reasonably calculated to enable the child to receive educational benefits.’” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. Re-1, 798 F.3d 1329, 1333 (10th Cir. 2015) (quoting Rowley, 458 U.S. at 207). The Tenth Circuit noted that there was a split among circuit courts as to whether the term “educational benefit” meant “some educational benefit” or a “meaningful educational benefit.” Id. at 1339 (comparing Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P., 540 F.3d 1143, 1149 (10th Cir. 2008) (requiring “some educational benefit”); with Deal v. Hamilton Cty. Bd. of Educ., 392 F. 3d 840, 862 (6th Cir. 2004) (requiring a “meaningful educational benefit”)).
The Tenth Circuit held that it was bound to follow its previous decisions, such as Thompson v. Luke P., and apply the “some educational benefit” standard. Id. at 1340-1341. Acknowledging that deciding whether the Student received “some educational benefit” was “without a question a close case,” the Tenth Circuit nevertheless found that there were “sufficient indications of [the Student’s] past progress to find the IEP rejected by the parents substantively adequate under our prevailing standard.” Id. at 1342.
The Student’s parents appealed again, this time to the Supreme Court, urging the Supreme Court to more clearly define the level of educational benefit to which students were entitled under the IDEA, to provide clarity to both parents and educators, and arguing that it should adopt a “substantial educational benefit” standard, and reject the “just-above-trivial benefit” standard adopted in many other circuits, like the Second Circuit, which requires schools to produce “more than only trivial advancement.” See Appellant’s Petition for Certiorari (quoting P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 119 (2d Cir. 2008)).
The Supreme Court is likely to hear oral argument on the case in 2017 and a decision is expected by June of 2017.