The Degree of "Educational Benefit" Required for a Free Appropriate Public Education: United States Supreme Court to Settle the Debate

By Christina Peer and Lisa H. Woloszynek

Under the Individuals with Disabilities Education Improvement Act (IDEIA), public schools must provide a free appropriate public education (FAPE) to students with disabilities. The degree of "educational benefit" a child must receive in order for the school district to have provided a FAPE has been a question that school districts across the country have grappled with for decades. But clarification is in sight as the United States Supreme Court will hear the case of Endrew F. v. Douglas County School District RE-1. The central issue in Endrew F. is defining the level of educational benefit a school district must confer on children with disabilities to provide them with the FAPE guaranteed by the IDEIA.

In 1982, the United States Supreme Court decided Rowley v. Hendrick Hudson School District and held that school districts are not required to maximize the potential of a child with a disability in order to provide FAPE. Rather, school districts are required to provide a program that is reasonably calculated to confer an educational benefit. In Rowley, the Court held that achievement of passing marks and advancement from grade to grade were indicators that FAPE had been conferred for a student educated in a regular education classroom setting. Unfortunately, the Court in Rowley did not address the level of "educational benefit" that must be conferred. This question is especially difficult in situations where students are not progressing successfully through school in a general education classroom. For example, what must a district demonstrate in order to prove that it provided an "educational benefit" to a student with autism or multiple disabilities who is being educated using a modified curriculum?

The appellate courts are not in agreement on their interpretation of what constitutes sufficient "educational benefit" in this type of circumstance and there are essentially two different standards. Some courts, including the Tenth Circuit in Endrew F., rely on a "merely more than de minimis" (i.e., just above trivial measurement) standard. This is in direct controversy with the Sixth Circuit (which includes Ohio) and the Third Circuit, which utilize the higher "meaningful educational benefit" standard. The "meaningful educational benefit" standard, as outlined by the Sixth Circuit Court in Deal v Hamilton County Board of Education, requires an analysis of the child's capabilities and potential for learning to determine how much of an educational benefit must be provided to equate to meaningful, with an eventual goal of self-sufficiency where possible. The Deal Court also noted that "[i]n conducting this inquiry, courts should heed the congressional admonishment not to set unduly low expectations for disabled children." The U.S. Solicitor General as well as Autism Speaks and the Public Interest Law Center are in favor of this heightened standard for the country and have weighed in with their input through amicus curiae briefs in Endrew F.

Endrew F.'s parents seek, through their Petition, to resolve this issue to "ensure that millions of children with disabilities receive a consistent level of education, while providing parents and educators much-needed guidance regarding their rights and obligation." Ultimately, the United States Supreme Court could uphold either of the established standards or could create an entirely new standard for the provision of FAPE. Whatever the outcome, school districts and parents alike would be well served by a decision that includes concrete standards to be used when determining whether a program provided a FAPE.

Oral arguments in the Endrew F. case have not been scheduled, but are expected to be held next year.

Christina Peer is a partner, and Lisa Woloszynek is an associate in the Education Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.