How Are The Circuits Interpreting Endrew F? Some Preliminary Indications # FAPE

We have written here a lot about the new Supreme Court decision in Endrew F that clarifies the FAPE standard. One reader expressed some uncertainty about the facts and ruling in Endrew F.  To ensure that we all have a handle this important decision, we will be repeating our previous posts about the new Supreme Court decision.

In the meantime, we have stated that the true meaning of Endrew F will be fleshed out by the courts and hearing officers below. Here are some preliminary published circuit decisions interpreting the Endrew F FAPE standard. I believe that the preliminary fig leaf readings indicate that the Circuits may read the supreme court clarification differently. Are you aware of other interpretations? So what do you about the way Endrew F is being applied so far?

                         a. Fourth Circuit: ML by Lieman v Montgomery County Board of Education 117 LRP 33077 (4^th Cir 8/14/17) The Fourth Circuit ruled that a school district did not deny FAPE where a student’s IEP did not include instruction in the customs and practices of Orthodox Judaism. The Fourth Circuit notes that the FAPE standard that it had been applying prior to Endrew F was quite similar to the “merely more than de minimis” standard applied by the Tenth Circuit and rejected by the Supreme Court. The Fourth Circuit did not reach the question of the FAPE standard, however, because the court found that IDEA does not provide the relief sought by the parents under any standard. The Court ruled that IDEA does not require schools to provide religious instruction, and citing the language from Endrew F concerning “progress appropriate in light of the child’s circumstances,” the court found that the circumstances that are relevant involve the student’s disability and not his faith or culture.  Because IDEA does not guarantee any particular outcome, the Fourth Circuit held that FAPE had been offered and affirmed the denial of reimbursement.

                              b. Eighth Circuit: IZM v Roesmount-Apple Valley-Eagan Public Schs, Independent Sch Dist No 1 70 IDELR 86 (8^th Cir 7/14/17) Eighth Circuit ruled that a state statute regarding Braille instruction did not raise the bar for FAPE. The Court noted that IDEA does not guarantee that a child make any progress. The court acknowledged the “progress appropriate in light of the child’s circumstances,” language from Endrew F, and noted that the new standard by the Supreme Court was consistent with its ruling that the school district had provided FAPE even though not all of the student’s instructional materials were provided in Braille despite reasonable efforts to do so.

c.  Ninth Circuit: MC ex rel MN v Antelope Valley Union High Sch Dist 858 F.3d 1189, 117 LRP 21748 (9^th Cir 5/30/17) Although the Ninth Circuit did not apply the Endrew decision, remanding the question instead to the District Court, the Ninth Circuit gave some serious hints as to how it may interpret the high Court’s clarification: “Recently, the Supreme Court clarified Rowley and provided a more precise standard for evaluating whether a school district has complied substantively with the IDEA: "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F., ... In other words, the school must implement an IEP that is reasonably calculated to remediate and, if appropriate, accommodate the child's disabilities so that the child can "make progress in the general education curriculum," id. at 3 (citation omitted), taking into account the progress of his non-disabled peers, and the child's potential. We remand so the district court can consider plaintiffs' claims in light of this new guidance from the Supreme Court.” {emphasis added}