Thursday, March 23, 2017

Breaking News: Supreme Court Clarifies FAPE Standard #FAPE #Endrew F #IEP

OK big news. The United States Supreme Court issued a big decision on Wednesday. The high court clarified what FAPE means and how courts should apply the FAPE requirement.

The decision in Endrew F by Joseph F v. Douglas County Sch Dist RE-1, # 15-827,  580 U.S. ______ (2017) vacates and remands a previous decision by the Tenth Circuit. We have had a number of previous posts on this case which can be reviewed here, here, here, here and here.

First a few preliminary observations. First this was a unanimous decision, the second special ed unanimous decision by the Supremes this year. So we have a new slogan of this area of law: Special ed law...bringing people together!

Second this is not the case in which my outline was cited in an amicus brief to the Supreme Court by NASDSE, NSBA. AASA and other groups, you can read about my notoriety here.

Third, although this opinion clarifies how courts should apply the FAPE standard, the court's decision does not overrule the seminal Rowley decision. Instead, it clarifies Rowley and explains how courts have not been correctly interpreting the decision.

Now for some general analysis- the new gold standard for FAPE is: to meet its obligations under IDEA, a SD must offer an IEP reasonably calculated to enable a child to make progress in light of the child's circumstances. The court described this standard is a fact-intensive exercise. The question is what is reasonable not what is ideal.

The Supreme Court said today that the Rowley decision sheds light on what appropriate progress will look like in many cases- where a child is fully integrated in regular education classes, that is the IEP must be reasonably calculated to make progress and to make passing marks and advance from grade to grade. The court noted that the facts of Rowley fit this analysis. In footnote # 2, the court reiterated the language in Rowley that it was specifically declining to hold that every child advancing from grade to grade is automatically receiving FAPE. The Court also noted that the fact that the new standard is not a bright line is not in any way a suggestion that a court substitute its own notion of sound educational policy for that of professional educators.

But where a child is not fully integrated in regular education classes, the IEP need not aim for grade level advancement. Instead, the IEP must be appropriately ambitious in light of the child's circumstances. The goals may differ, but every child should have the chance to meet challenging objectives. 

The clarification, according to the Court, is a standard not a formula- but in any event it is "...markedly more demanding than the 'merely more than de minimis' test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot."

The Supreme Court decision also flatly rejected the parent's argument that FAPE requires an opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.  The court here noted that Congress has reauthorized IDEAa number of times without overruling the Rowley decision which had rejected a similar potential-maximizing FAPE standard, so it would not adopt the parent's proposed FAPE standard.

The court stated..."We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created."

So what do you think about the new gold standard for FAPE? It is pretty clearly broader than the   FAPE standard of more than de minimis which many lower courts had interpreted Rowley to mean- but how much higher is the bar set for students with disabilities? We will have more on Endrew F in future posts.

You can and really should read the entire supreme court decision here.


  1. You're the best, Jim. I miss seeing you and working with you. My thanks for all you do. Debbie Delauro

  2. This is the reason that the old civil rights solution is such a good one. Its why the GNETS complaint is based on civil rights. They will continue to minimize the potential that some children have with DDs, Autism, and EDs.

  3. "The court described this standard is a fact-intensive exercise. The question is what is reasonable not what is ideal."

    Is it reasonable to set these circumstances for children? I would say so. I believe that any child has the abilty to learn as long as we create the path for success. We must not automatically set students up for failure by saying they are incapable.

  4. Debbie, Libbey & UK,

    Thanks for your comments.

    And Debbie I miss you too.


  5. How did the Supreme Court define the FAPE standard prior to this new clarification. What has changed in its meaning? Why would the Supreme Court reject the parent's argument for appropriate education, i.e., opportunity to achieve academic success, attain self-sufficiency, and contribute to society, for their child with a disability when the word “appropriate” is clearly stated within FAPE? It's extremely unreasonable for the Supreme Court to reject this...

    Thank you for sharing this Jim!

  6. Anon,

    Thamks for your comment.