On March 22, 2017, the Supreme Court in Endrew v. Douglas County unanimously rejects the “de minimis” standard for one that “is markedly more demanding than the 'merely more than de minimis' test applied by the 10th Circuit." In his opinion, Chief Justice Roberts says “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”
On Wednesday, Jan. 11, 2017 - Oral Argument was held before the Supreme Court
A 2015 ruling from the U.S. Court of Appeals for the Tenth Circuit widened the split among circuits about the level of educational benefit school districts must provide to children with disabilities. The question presented to the Supreme Court is whether the “educational benefit” provided by a school district must be “merely more than de minimis” or “meaningful” to satisfy the requirements for a free appropriate public education (FAPE).
Endrew F. (Drew) is a child with attention deficit/hyperactivity disorder and autism. His disabilities affect his cognitive functioning, language and reading skills, and social abilities, including his ability to communicate his emotions and needs.
Drew attended public school in Douglas County, Colorado from preschool through fourth grade. He had an Individualized Education Program (IEP) and received special education services.
In 2010, Drew’s parents concluded that their child did not make meaningful academic progress in fourth grade. His behavior problems worsened with head banging, taking off his clothes and running away from school. Despite the escalating behavior problems that impeded his learning, the school failed to develop and implement an appropriate behavioral intervention plan (BIP).
The parents rejected the IEP proposed for fifth grade and enrolled their child in a private school that specializes in educating children with autism.
In 2012, Drew’s parents filed a due process complaint with the Colorado Department of Education pursuant to 20 U.S.C. §1412(a)(10)(C) (see page 76-77 in Wrightslaw: Special Education Law, 2nd Edition). The parents asserted that Douglas County did not provide their son with a free appropriate public education and requested reimbursement for Drew’s private school tuition.
After a three-day due process hearing, the hearing officer held that Drew made “some academic progress” in the public school program – and that the district only needed to develop and implement an IEP that provided “some educational benefit” to comply with the IDEA. (emphasis added).
Drew’s parents appealed to the U.S. District Court. That court upheld the hearing officer’s finding that the IDEA requires school districts to provide only “some educational benefit.” The court held that Drew made “at the least, minimal progress” in the public school program and that this is all the law requires.
Drew’s parents appealed to the United States Court of Appeals for the Tenth Circuit. The parents argued that the hearing officer and district court erred in concluding that the IEP was substantively adequate because
The Tenth Circuit affirmed the decisions of the hearing officer and the district court.
That court held that IDEA requires “some educational benefit” that “must merely be more than de minimis” and that under this minimal standard, the IEP developed for Drew’s fifth grade year was adequate.
Petition for Certiorari
In December 2015, Drew’s parents filed a Petition for a Writ of Certiorari and asked the U.S. Supreme Court to resolve the split among circuits on the issue of educational benefit.
In their Petition, the parents described conflicting rulings from several circuits about the level of educational benefit required. The parents claimed that the intent of the IDEA is to provide a meaningful education, not “just-above-trivial” benefit:
Solicitor General Advised Supreme Court
The U.S. Supreme Court asked the Solicitor General to file a brief about the views of the United States on how much educational benefit schools must provide to satisfy the requirements of the IDEA.
On August 18, 2016, the Solicitor General filed a brief as Amicus Curiae and urged the Supreme Court to grant the parent’s Petition and decide this issue. The question presented is “whether the ‘educational benefit’ provided by a school district must be ‘merely more than de minimis’ to satisfy the FAPE requirement" as established in the U.S. Supreme Court decision in Board of Education of the Hendrick Hudson Central School District v. Amy Rowley, 458 U. S. 176 (1982).
In the amicus brief, the Solicitor General advised the Supreme Court:
Board of Education v. Amy Rowley
In 1982, the Supreme Court defined “free appropriate public education (FAPE)” in their first special education decision, Board of Education of the Hendrick Hudson Central School District v. Amy Rowley, 458 U. S. 176 (1982).
When Amy’s case began, she was a first grader who was also deaf. Before Amy entered first grade, her parents asked the school to provide her with a sign language interpreter. Although she could lip-read, her parents asserted that an interpreter would enhance her ability to learn.
As the U.S. District Court noted (Amy Rowley v. Bd. of Ed. of Hendrick Hudson Cent. SD, 483 F. Supp. 528, 536 (S.D.N.Y. 1980)), Amy Rowley’s standardized test scores were at the 70th to 80th percentile ranks when compared to her peer group. She scored two to four grade levels above her peers on this testing.
The U.S. Supreme Court found that Amy was "a remarkably well-adjusted child" who performed "better than the average child in her class and is advancing easily from grade to grade." Although Amy was not performing as well as she would if not for her handicap, the Court concluded that the law did not require public schools to furnish "every special service necessary to maximize each handicapped child’s potential." The Court held that Amy did not need a full-time sign language interpreter at that time.
In Rowley, the Supreme Court attempted to clarify the requirements for a “free appropriate public education” (FAPE) and “educational benefit”:
The Court stated that the child’s individualized educational program (IEP) should be reasonably calculated to enable the child to receive educational benefit.
The Court held that Congress intended school districts to provide services that conferred “some educational benefit” upon students with disabilities because:
In Rowley, the Court held that IEPs must confer "an educational benefit on the child:
But the Court concluded that it did not have to establish a test for educational benefits at that time because. . .
What Level of Educational Benefit is Required?
The Solicitor General noted, “Since the Court first described this requirement in Rowley over thirty years ago, federal courts of appeals have become intractably divided over the level of educational benefit the Act demands. Some courts, including the Tenth Circuit . . . hold that an IEP satisfies the Act if it provides a child with a just-above-trivial educational benefit, while others hold that the Act requires a heightened educational benefit.”
Resolving the Split Among Circuits
After the Supreme Court’s 1982 decision in Rowley, courts continued to wrestle with the requirements for a “free appropriate education” and “educational benefit.” Some courts held that schools only need to provide “some educational benefit” to meet the standard for a free appropriate education (FAPE). Others held that a child must receive “meaningful educational benefit” to receive a FAPE.
After the Supreme Court granted certiorari in Endrew F., numerous organizations and advocacy groups submitted amicus briefs in support of the child. These groups include Advocates for Children of New York, et al., 118 Members of Congress, Former Officials of the U.S. Department of Education, National Disability Rights Network, et al., the National Education Association, the Council of Parent Attorneys and Advocates, et al., the Coalition of Texans with Disabilities, et al., Delaware, et al., and the National Center for Special Education in Charter Schools, et al.
The National Association of State Directors of Special Education submitted a brief “in support of neither party.”
The Court will revisit the issue of “educational benefit” as it relates to the requirements for providing a free appropriate public education.
1980 - Amy Rowley v. Bd. of Ed. of Hendrick Hudson Cent. SD, 483 F. Supp. 528, 536 (S.D.N.Y. 1980)
1982 - Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176 (1982)
2014 - Endrew F., by and through his parents and next friends, Joseph F., and Jennifer F. v. Douglas County School District RE-1, U.S. District Court (D. Colorado 2014)
2015 - Endrew F. by and through his parents and next friends, Joseph F., and Jennifer F. v. Douglas County School District RE-1, 798 F.3d 1329 (10th Cir. 2015)
12/22/15 – Petition for a Writ of Certiorari by Endrew F.
04/15/16 – Brief of respondent Douglas County School District RE-1 in Opposition to Petition for Writ of Certiorari.
05/02/16 – Reply brief of Petitioner Endrew F.
08/18/16 – Amicus curiae brief of the United States in support of Petitioner, Endrew F.
09/06/16 – Supplemental brief of Respondent Douglas County School District RE-1.
11/14/16 – Brief of Petitioner Endrew F.
01/25/16 – Brief amici curiae of Autism Speaks and The Public Interest Law Center in support of Petitioner, Endrew F.
11/15/16 – Solicitor General’s Amicus Brief of the US in support of Petitioner, Endrew F.
11/17/16 – Brief amicus curiae of National Association of State Directors of Special Education in support of neither party.
11/21/16 – Brief of 118 Members of Congress as Amici Curiae in support of Petitioner, Endrew F.
11/21/16 – Brief amici curiae of Advocates for Children of New York, et al. in support of Petitioner, Endrew F.
11/21/16 – Brief amici curiae of Former Officials of the U.S. Department of Education in support of Petitioner, Endrew F.
11/21/16 –Brief amici curiae of National Disability Rights Network, et al. in support of Petitioner, Endrew F.
11/21/16 - Brief amicus curiae of The National Education Association,in support of Petitioner, Endrew F.
11/21/16 - Brief amici curiae of The Council of Parent Attorneys and Advocates, et al., in support of Petitioner, Endrew F.
11/21/16 - Brief amici curiae of The Coalition of Texans with Disabilities, et al., in support of Petitioner, Endrew F.
11/21/16 - Brief amici curiae of Delaware, et al. in support of Petitioner, Endrew F.
11/21/16 – Brief amici curiae of the National Center for Special Education in Charter Schools, et al. in support of Petitioner, Endrew F.
12/05/16 – Scheduled for oral argument on Wednesday, Jan 11, 2017.
Johnson, Scott F. (2003) Reexamining Rowley: A New Focus in Special Education Law
Weber, Mark C. (2016) New Developments in Free, Appropriate Public Education for Students with Disabilities: Policy and Practice Implications. CEPI Education Law Newsletter, Vol 14-8.
Wright, Peter W.D. and Pamela Darr Wright. (2007) Rebutting Rowley? Independence and Self-Sufficiency Are New Standards for FAPE.