On March 22, 2017 the U.S. Supreme Court (sometimes referred to as Court) issued a unanimous opinion in Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988. In that case, the Court interpreted the scope of the free appropriate public education (FAPE) requirements in the Individuals with Disabilities Education Act (IDEA). The Court overturned the Tenth Circuit’s decision that Endrew, a child with autism, was only entitled to an educational program that was calculated to provide “merely more than de minimis” educational benefit. In rejecting the Tenth Circuit’s reasoning, the Supreme Court determined that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP [individualized education program] that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court additionally emphasized the requirement that “every child should have the chance to meet challenging objectives.”
The Endrew F. decision is important because it informs our efforts to improve academic outcomes for children with disabilities. To this end, the U.S. Department of Education (Department) is providing parents and other stakeholders information on the issues addressed in Endrew F. and the impact of the Court’s decision on the implementation of the IDEA. Because the decision in Endrew F. clarified the scope of the IDEA’s FAPE requirements, the Department’s Office of Special Education and Rehabilitative Services (OSERS) is interested in receiving comments from families, teachers, administrators, and other stakeholders to assist us in identifying implementation questions and best practices. If you are interested in commenting on this document or have additional questions, please send them to OSERS by email at EndrewF@ed.gov.
Endrew’s parents sought reimbursement for the private school tuition payments at a due process hearing, and subsequently sought judicial review of the hearing decision in the U.S. District Court for the District of Colorado after the hearing officer did not grant the relief they were seeking. The District Court affirmed the hearing officer’s decision, and they appealed to the U.S. Court of Appeals for the Tenth Circuit. In these proceedings, Endrew’s parents argued that the IEP proposed by the public school was mostly unchanged from his previous IEPs, under which he made “minimal progress.” The Tenth Circuit rejected the parents’ arguments and concluded that Endrew had received FAPE through the district’s IEPs because they were calculated to provide educational benefit that is merely more than de minimis (i.e., more than trivial or minor educational benefit). Endrew’s parents then appealed the case to the U.S. Supreme Court. The Court overturned the Tenth Circuit’s decision.
Footnote 1: 137 S.Ct. at 1000.
Clarification of IDEA’s FAPE Requirement
(1) are provided at public expense, under public supervision and direction, and without charge;
(2) meet the standards of the State educational agency (SEA), including IDEA Part B requirements;
(3) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(4) are provided in conformity with an IEP that meets the requirements of 34 CFR §§300.320 through 300.324.
Further, each child with a disability is entitled to receive FAPE in the least restrictive environment (LRE). (3)
Footnote 2: 20 U.S.C. 1401(9) and 34 CFR §300.17.
Footnote 3: 20 U.S.C. 1412(a)(5) and 34 CFR §§300.114-300.117
Footnote 4: 137 S.Ct. at 1000.
Considerations for Implementation
Footnote 5: 137 S.Ct. at 999.
While the Court did not specifically define “in light of the child’s circumstances,” the decision emphasized the individualized decision-making required in the IEP process and the need to ensure that every child should have the chance to meet challenging objectives. The IDEA’s focus on the individual needs of each child with a disability is an essential consideration for IEP Teams. Individualized decision-making is particularly important when writing annual goals and other IEP content because “the IEP must aim to enable the child to make progress. (7)
For example, the Court stated that the IEP Team, which must include the child’s parents (8) as Team members, must give “careful consideration to the child’s present levels of achievement, disability, and potential for growth.”
Footnote 6: 137 S.Ct. at 999.
Footnote 7: 137 S.Ct. at 999.
Footnote 8: The term “parent” means a biological or adoptive parent of a child; a foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; a guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); an individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or a surrogate parent who has been appointed in accordance with 34 CFR §300.519. 34 CFR §300.30.
How IEP Team members evaluate and assess this information, as well as the establishment of the child’s IEP goals, will each contribute to ensuring the child has access to challenging objectives. The IEP Team’s effectiveness in gathering and interpreting this information will ensure that, in establishing IEP goals, the child has the opportunity to meet challenging objectives. As the Court stated in Endrew F., “the IEP must aim to enable the child to make progress.”(10) Determining an appropriate and challenging level of progress is an individualized determination that is unique to each child. When making this determination, each child’s IEP Team must consider the child’s present levels of performance and other factors such as the child’s previous rate of progress and any information provided by the child’s parents.
Footnote 9: 20 U.S.C. 1414(d)(1)(A)(i)(I)-(IV) and 34 CFR §300.320(a)(1)–(4).
Footnote 10: 137 S.Ct. at 999.
Footnote 12: 20 U.S.C. 1414(d)(1)(A) and 34 CFR §300.320(a).
Footnote 13: 20 U.S.C. 20 U.S.C. 1414(d)(1)(A)(i)(I)(aa) and 34 CFR §300.320(a)(1)(i).
Footnote 14: 137 S.Ct. at 999.
Therefore, annual IEP goals for children with the most significant cognitive disabilities should be appropriately ambitious, based on the State’s content standards, and “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”
Footnote 15: See section 1111(b)(1)(E) of the Elementary and Secondary Education Act (ESEA), and Section 200.6(c) of the Department’s regulations for Title I Part A of the ESEA.
The IEP Team also may meet periodically throughout the course of the school year, if circumstances warrant it. For example, if a child is not making expected progress toward his or her annual goals, the IEP Team must revise, as appropriate, the IEP to address the lack of progress. (16) Although the public agency is responsible for determining when it is necessary to conduct an IEP Team meeting, the parents of a child with a disability have the right to request an IEP Team meeting at any time. If a child is not making progress at the level the IEP Team expected, despite receiving all the services and supports identified in the IEP, the IEP Team must meet to review and revise the IEP if necessary, to ensure the child is receiving appropriate interventions, special education and related services and supplementary aids and services, and to ensure the IEP’s goals are individualized and ambitious.
Public agencies may find it useful to examine current practices for engaging and communicating with parents throughout the school year as IEP goals are evaluated and the IEP Team determines whether the child is making progress toward IEP goals. IEP Teams should use the periodic progress reporting required at 34 CFR §300.320(a)(3)(ii) to inform parents of their child’s progress. Parents and other IEP Team members should collaborate and partner to track progress appropriate to the child’s circumstances.
Footnote 16: 20 U.S.C. 1412(d)(4)(A).
Footnote 17: 20 U.S.C. 1414(d)(3)(B)(i) and 34 CFR §300.324(a)(2)(i) and (b)(2).
Footnote 18: 20 U.S.C. 1414(d)(1)(A)(i)(I)-(IV) and 34 CFR §300.320(a)(4).
Footnote 19: 20 U.S.C. 1412(a)(5)
Footnote 20: 20 U.S.C. 1412(a)(5)
(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, so that the Endrew F.standard is met for each individual child with a disability.
Separately, IEP Teams and other school personnel should be able to demonstrate that, consistent with the provisions in the child’s IEP, they are providing special education and related services and supplementary aids and services; making program modifications; providing supports for school personnel; and allowing for appropriate accommodations that are reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives.
Footnote 21: 20 USC §1414(d)(1)(A)(i)(IV); 137 S.Ct. at 1000.
Footnote 22: 34 CFR §§300.506-300.516
Footnote 23: 34 CFR §300.148(c).