Endrew v. Douglas County School District

By Michael A. Schwartz, Ph.D., J.D.

On March 22, 2017, the United States Supreme Court decided Endrew v. Douglas County School District, holding that in order to meet its substantive obligation under the Individuals with Disabilities Education Act (IDEA), a school must provide a free appropriate public education (FAPE) to a child with a disability by offering an Individualized Education Program (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[1] Endrew, a child labeled autistic, was making minimal progress reflected in four years of the same IEP at his local public school. Dissatisfied with their son’s progress, Endrew’s parents placed him in a private school where Endrew made significant progress, and subsequently they demanded tuition reimbursement from the school district. Denied relief by an impartial hearing officer and the local federal district court, the parents appealed to the United States Court of Appeals for the Tenth Circuit, which held a child’s IEP is adequate as long as it is calculated to confer an ‘educational benefit [that is] merely … more than de minimis.”[2]

Endrew’s parents appealed to the Supreme Court where they argued that a FAPE is “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.[3] The school district argued that “an IEP need not promise any particular level of benefit,” so long as it is “‘reasonably calculated’ to provide some benefit, as opposed to none.”[4]

The Supreme Court, citing Board of Ed. of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), struck a middle path between Endrew’s parents and the school district, and in doing so generated some good dicta.

Wait!

What do you mean, “dicta”? In American legal terminology, a dictum (plural dicta) is “a statement of opinion considered authoritative (although not binding), given the recognized authoritativeness of the person who pronounced it.”[5] In reversing the Tenth Circuit, the unanimous opinion by Chief Justice John Roberts included the following statements that should be useful for parents of children with disabilities in advocating for stronger and more effective IEPs for their children:

1. “There [in Rowley], the Court recognized that the IDEA requires that children with disabilities receive education in the regular classroom ‘whenever possible.’”[6]
2. “Progress through this system is what our society generally means by an ‘education.’ And access to an ‘education’ is what the IDEA promises. Accordingly, for a child fully integrated in the regular classroom, an IEP typically should, as Rowley put it, be ‘reasonably calculated to enable the child to achieve passing marks and advance from grade to grade’.”[7]
3. “The IEP provisions reflect Rowley’s expectation that, for most children, a FAPE will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade.”[8]
4. For children with disabilities who are not fully integrated in the regular classroom, the child’s “educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.”[9]
5. “It cannot be the case that the [IDEA] 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.”[10]

The Supreme Court vacated the de minimis judgment of the United States Court of Appeals for the Tenth Circuit and remanded the case for further proceedings consistent with the opinion.

Take that, Justice Gorsuch!

[1] 580 U.S. ___ (2017). (emphasis added). This is the central holding of the case.

[2] 798 F.3d 1329, 1338 (10th Cir. 2015) (internal quotation marks omitted). Associate Justice Neil Gorsuch newly appointed to the Supreme Court was a member of this panel and joined in the ruling against Endrew’s parents.

[3] Slip op., 580 U.S. ___ (2017), at 15.

[4] Id. at 9.

[5]  https://en.wikipedia.org/wiki/Dictum

[6] Slip op., 580 U.S. ___ (2017), at 12.

[7]  Id.

[8] Id. at 13.

[9] Id. at 14.

[10]  Id.