On March 22, 2017, the United States Supreme Court, in the case of Endrew F. v. Douglas County School District RE-1, created a new standard for determining whether a student with a disability under the Individuals with Disabilities Education Improvement Act (IDEIA) has been provided with a free appropriate public education (FAPE). In Endrew F., the Court was asked to decide the degree of “educational benefit” a child must receive in order for the school district to have provided a FAPE. The lower court in Endrew F. used the “merely more than de minimus” standard that had been adopted by the Tenth Circuit Court of Appeals. The U.S. Supreme Court unanimously rejected this standard and instead held that in order “to meet its substantive obligation under the IDEIA, 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. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, No. 15-827, 2017 WL 1066260, at *1 (U.S. Mar. 22, 2017) (emphasis added).

In reaching this decision, the Court reasoned, “[i]t cannot be right that the IDEIA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.” Id. at *2. Notably, the Court did not reject or overrule Rowley v. Hendrick Hudson School District, the U.S. Supreme Court case that first established a standard for the provision of FAPE. Rather, the Endrew F. Court noted that Rowley “did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level.” Id. The Court further explained that a child’s IEP need not “aim for grade-level advancement if that is not a reasonable prospect.” Id. However, that 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.” Id. The Court went on to state that every child should have the chance to meet challenging objectives.

In setting forth this new standard, the Court rejected the parents’ argument that the IDEIA requires school districts to provide children with disabilities with educational opportunities that are “substantially equal to the opportunities afforded to children without disabilities.” Id. The Court noted that this standard had been rejected by the Supreme Court in Rowley and that Congress has not materially changed the definition of FAPE since Rowley was decided. Consequently, the Court declined to adopt the higher standard advocated by the parents.

The standard adopted by the Endrew F. Court does not create a bright-line rule. Rather, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Id. at *3. This standard appears to be similar to the heightened “meaningful educational benefit” standard, as outlined by the Sixth Circuit Court in Deal v Hamilton County Board of Education. Both Endrew F. and Deal require an analysis of the child’s capabilities and potential for learning to determine the appropriateness of the child’s IEP.

From a practical standpoint, the Endrew F. standard places renewed emphasis on the need for comprehensive evaluations (and reevaluations) of students with disabilities. Without this data, it will be difficult for a school district to demonstrate that a child’s progress is “appropriate in light of the child’s circumstances.” School districts must also continue to be mindful of the requirement that a student’s IEP goals must align with the needs set forth in the evaluation team report. Additionally, districts should continue to ensure that intervention specialists and related service providers collect data in accordance with each student’s IEP and reconvene IEP teams as necessary based on the data collected.

Christina Peer is a partner and the Chair of the Education Services group of Cleveland-based Walter | Haverfield LLP.

In last week’s high-profile decision, the Supreme Court permitted parents to skip the due process complaint procedures if their claims relate primarily to Section 504 of the Rehabilitation Act of 1973 (“Section 504”), rather than the Individuals with Disabilities Education Improvement Act (“IDEIA”). The IDEIA requires school districts to provide qualifying students with a free appropriate public education (“FAPE”) through specially-designed instruction and related services. Section 504, however, is a more general law prohibiting discrimination and obligating districts to provide equal access to public institutions to all persons with disabilities. In the past, courts have often required dissatisfied parents to exhaust the special education due process procedures, even if their claims related primarily to Section 504, and did not involve FAPE under the IDEIA. In Fry v. Napoleon, however, the Supreme Court rejected this approach and provided new parameters for claims appearing to relate to both laws.

This case features E.F., a middle school student with cerebral palsy and a service dog (a goldendoodle named Wonder). Because the dog helped E.F. with various needs throughout her day (opening doors, retrieving dropped items, etc.), E.F.’s parents wanted Wonder to accompany her to school on a full-time basis. The school refused, citing the one-on-one aide assigned to assist E.F. throughout the day as part of her IEP. After the Office for Civil Rights sided with the parents, the school agreed to allow the dog in school to provide E.F. with assistance during the day. E.F.’s parents, however, were concerned about potential resentment issues, and chose to move their child to a different district. The parents then sued in federal court, alleging that the district violated Section 504 and the Americans with Disabilities Act (“ADA”).

The lower courts dismissed this lawsuit, noting that – because any alleged harm to E.F. was generally education-related – the parents were first required to file an IDEIA due process complaint before suing in court. The Supreme Court, however, explained that if a lawsuit does not hinge on a FAPE analysis, the hearing officer cannot provide the requested relief, and a due process hearing is not proper – and not necessary.

In determining whether a complaint primarily addresses FAPE, the Court offered the following tests:

• First, could the plaintiff bring the same claim if the problem took place at any public facility, not just a school?;
• Next, could any adult at the school have brought the same claim?

Affirmative answers to these inquiries would indicate that the matter is not a true IDEIA claim, and that a due process hearing is unnecessary. The Court also suggested that starting the IDEIA due process, only to drop it later in favor of going to court, could indicate that the conflict was related to FAPE all along. In short, the Court sought to strike a balance between allowing parents to pursue their claims in federal courts and protecting school districts from FAPE complaints disguised as Section 504 allegations. In moving forward, school districts and their attorneys will need to carefully review parents’ claims and factual history before determining the best course of action.

Miriam Pearlmutter is an associate in the Education Services group of Cleveland-based Walter | Haverfield LLP.

The Trump Administration made a significant move Wednesday night in the national debate regarding transgender students’ rights by withdrawing previously issued guidance from the United States Department of Education (“DOE”) and Department of Justice (“DOJ”) on the topic. The prior guidance from the DOE and DOJ, which was issued by the Obama administration in May 2016 (“May guidance”), interpreted Title IX as requiring treatment of students in a manner consistent with their gender identity. The May guidance provided examples of policies and practices to support transgender students, such as utilizing the name the student has selected, requiring access to restrooms, locker rooms, and overnight accommodations for school trips in accordance with the gender with which the student identifies.

Amidst significant backlash, numerous states sought to invalidate the May guidance through a federal lawsuit in Texas v. United States. The Trump Administration’s Dear Colleague letter which rescinded the May guidance referenced that lawsuit and further stated that the May guidance lacked a formal public vetting process, extensive legal analysis, and an explanation of how the position is consistent with Title IX language. The Trump Administration’s letter also stated that there are conflicting national court decisions and further noted the role States and local school districts should play in educational policy development.

While the May 2016 guidance has been rescinded in favor of State control over the issue, the Trump administration noted that transgender students should be protected from discrimination, bullying and harassment. In a press release, the U.S. Secretary of Education Betsy DeVos emphasized a federal mandate and moral obligation to protect all students and ensure a safe and trusted environment, in which to learn and thrive.

This rescission of the May 2016 guidance comes just weeks before the United States Supreme Court is set to hear oral arguments in Gloucester County School Board v. GG. The Court was set to review whether deference should extend to the DOE’s prior interpretation of Title IX in relation to gender identity. With this new development, the Supreme Court must choose whether or not it will address these questions now.

Finally, while the DOE and DOJ’s prior position has been rescinded by the Trump Administration, the recent decision of the federal Sixth Circuit Court of Appeals in Board of Education of Highland Local School District v. United States Department of Education, et al. remains in effect at the moment. The Highland Court affirmed the decision of the United States District Court for the Southern District of Ohio, which found that a transgender student should be allowed access to the restroom of the gender with which the student identified and should also be called by the pronoun of the gender with which the student identified. The Sixth Circuit Court of Appeals is binding on public school districts in Ohio, absent a contrary ruling from the United States Supreme Court. Thus, school districts should continue to watch for further developments and consult with legal counsel as issues arise.

Lisa Woloszynek is an associate in the Education Services group of Cleveland-based Walter | Haverfield LLP.

The national debate regarding transgender students’ rights and the obligations of school districts has developed rapidly this year. Courts across the country, including in Ohio, have issued varied decisions on these issues and the United States Department of Education (“DOE”) and the United States Department of Justice (“DOJ”) have issued controversial guidance. On October 28, 2016, the United States Supreme Court agreed to hear the recent Fourth Circuit Gloucester County School Board v. GG case, regarding bathroom use policy in relation to a transgender student. So, clarification on some of the issues facing districts may be on the horizon.

The Gloucester case began when a school district adopted a policy requiring students to use the restroom or locker room of the student’s biological gender. A transgender student had been permitted to use the boys’ restroom for several weeks before this policy, but that permission was terminated after the policy was implemented. The student subsequently sued the school board under the Equal Protection Clause and Title IX of the Education Amendments of 1972 (“Title IX”) challenging the school board’s policy, The student also sought an injunction to permit his use of the boys’ restroom.

As the case moved up through the courts, the U.S. District Court for the Eastern District of Virginia denied the injunction request and dismissed the student’s Title IX claims. However, in April, the U.S. Court of Appeals for the Fourth Circuit found that the District Court should have given deference to the DOE’s interpretation. Under the DOE’s interpretation, students should be allowed to use the restroom of the gender with which they identify. The Fourth Circuit reversed the District Court and remanded the case for further proceedings with instructions to give deference to the DOE’s interpretation. In reaching this conclusion, the Fourth Circuit relied on a 2015 opinion letter from the DOE’s Office for Civil Rights (Letter to Prince Jan. 7, 2015) which interpreted Title IX as to treat students in a manner consistent with their gender identity. In its decision and application of the DOE’s interpretation, the Fourth Circuit relied on a principle from a prior court decision, Auer v. Robbins, that courts should generally defer to an agency’s interpretation of its own regulation. The United States Supreme Court granted an emergency petition to stay the decision while the case continues. Thus, the school board’s policy remains in effect for the time being.

While this case revolves around a high-profile topic, the issue before the United States Supreme Court is quite technical. The Court will determine if Auer deference should extend to an unpublished agency letter and if the DOE’s regulatory and specific interpretation of Title IX (a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity”) should be given effect. The latter determination will have robust implications, especially in light of the DOE and DOJ’s 2016 published Dear Colleague Letter guidance, which many states are now challenging in court.

Several prior client alerts address the development of this topic. Please access them below for additional background information:

Ohio Court Weighs in on Transgender Student
U.S. Department of Education and Justice Weigh In on the Legal Developments Regarding Transgender Students
Legal Developments Regarding Transgender Students
The U.S. Supreme Court and Transgender Students

Lisa H. Woloszynek is an associate in the Education Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.

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 H. Woloszynek is an associate in the Education Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.