Episode Six: Update on Endrew F.: How Much Special Education Must Districts Provide?

The Supreme Court recently ruled on whether school districts are obligated to provide more than just a minimal benefit to students with special education needs. Here’s our update and analysis of what this decision means practically for you. Enjoy the episode and let us know what you think!

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Miriam: Welcome to Education Law Update. The podcast that entertains and informs. I’m Miriam.

Lisa: And I’m Lisa.

Miriam: We are Ohio attorneys. We practice school law, and we get together every so often and we talk about the latest legal developments that affect anybody in the school, school districts, board members, administrators, anyone who works with the schools.

Lisa: Today we’re going to be updating you briefly on one of the Supreme Court cases that we discussed in an earlier episode, Andrew F. If you remember, this is a special education case that looks at what level of educational benefit does a school district have to confer on a child with disabilities to show that they provided that child to free appropriate public education?

The Supreme Court has made an early decision and come out and has, in essence, heightened the standard.

Miriam: Yes, Lisa. It’s heightened the standard for what school districts need to provide to students and that’s why this is an especially important case. Let’s just refresh ourselves on the facts here. This is a case about a fourth-grader with autism. This little boy had a pretty severe form of autism and his behaviors were really getting in the way of progress at school even though he was making some academic progress. The parents were really unhappy about his ongoing behaviors, running away, throwing things, urinating in the classroom.

They pulled him out of the public school district, placed him in a private school and then demanded that the school district fund the private school, pay that tuition and their entire allegation was, “The school district, you didn’t do enough our child, wasn’t making enough progress, so now you have to pay tuition for a place that will help him make that progress.”

Lisa: Right. If you remember back, the big reason the Supreme Court took this case is because there’s been a split among the Circuits across the country, as far as what is the standard that districts need to show about the level of educational benefit. In this case, they were in a Circuit that use what we call de minimus standard.

Basically, a level of a little more next to nothing was going to be enough. Whereas we have other Circuits like where we are in Ohio in the Sixth Circuit that has a higher standard where we have meaningful benefits standard. The Supreme Court was tasked with trying to iron out, what standard do we make consistent across the country? Do we raise the de minimus standard? If so, how high do we raise that? Do we make it meaningful?

We talked about in oral arguments, there was a lot of wordsmithing discussion about what words to use, what makes it clear for the lower courts so that just giving a new standard doesn’t leave even more ambiguity for the lower court.

Miriam: I think they failed here on that last point. I think the Supreme Court articulated a standard, but it’s still pretty vague.

Lisa: Yes. Our new standard at this point is basically showing that the child has an IEP that was reasonably calculated to enable the child to make progress appropriate in the light of the child’s circumstances. Clear as mud there, right?

Miriam: Exactly. The IEP, the individual plan for the child’s education has to be calculated to enable a child to make appropriate progress. I don’t know necessarily what that means, but I do understand that the court wanted to leave it a little bit open so that school districts and parents could work out the specifics on their own, I think a vague decision allows for that possibility.

Lisa: Right. Basically, we all know in school districts, we have these content standards that most students are expected to meet. Even under the IDEA, there’s still that expectation that even with the disability, those are still the standards that we want the child to reach but the court in this case was cognizant that we do have a group, a population of students, say for example, that have very severe cognitive delays that may not be able to achieve up to those grade-level standards. That’s why they threw in this in light of the child circumstances language to really make it a fact in circumstance based analysis for the child.

Miriam: Right. The court did say that every child should have a chance to meet challenging objectives, but there’s no reason to go for grade-level advancement if that’s not a reasonable prospect. In other words, the court did emphasize that the program has to be ambitious, but it’s not going to be the same for every child.

Lisa: Right. One thing it is interesting to point out is that the court did reject parents argument that the IDEA requires that school districts provide a child with a disability, educational opportunities that are substantially equal to the opportunities afforded children without disabilities.

Miriam: Right. School districts do not have to provide educational opportunities that are substantially equal. The court rejected that equal language pretty much because children’s abilities are never equal.

Lisa: Yes. Here’s the big takeaway, we talked about a little bit before, but this decision really is going to emphasize them. We really have to have solid comprehensive evaluations and revaluations and districts that give you even that initial standard of what are the child’s circumstances? What is going to be reasonable in light of their ability to progress?

Miriam: Then of course, the second part is that you have to have the progress reports, you have to be able to show if a parent comes with a claim or complaint, you have to be able to show that the child did, in fact, make that progress. Not only are your progress reports really critical here, but also the raw data.

Lisa: Data-data data.

Miriam: Exactly. The raw data on which the progress reports are based has to also be saved. I think that’s something that we see sometimes, school districts, teachers, they have that raw data but then they throw it out. The child moves on to another building next year and the teacher just tosses all the raw data. Then when the parents complain, “Hey, look, our child isn’t making this progress. We’re not seeing this at home, we want private services, we want the district to pay for them.”

The teachers and the school district really has no way of proving, no way of showing that the child did make this progress. That’s something that we always emphasize when we talk to school districts, is how important it is not only to have that evaluation showing the child circumstances, showing the child’s cognitive abilities for example, but also the actual progress reports and raw data. That’s something really important for districts to keep.

Lisa: Absolutely, and making sure the team is looking at their data, applying it, revising IEPs as appropriate based on it.

Miriam: Yes, exactly.

Lisa: Using the evaluation to drive where the IEP goes and making sure just everything is in alignment and is really a work in progress.

Miriam: Exactly. Lisa, for just a quick example, I went to a school district the other day, we had an IEP meeting for students. We all looked at the progress reports, and it showed the child was not making progress in certain math goals, and she had a severe math disability. Then the team said, “Well, why do we have these very high math goals on her IEP? Why do we have those if she’s not even coming close to making them? Maybe they were too ambitious, and now we need to revise the IEP.”

Lisa: Right. Making sure that you have reasonable expectations for that specific student.

Miriam: Exactly. Next time, we will talk about transgender issues and how that has changed. How those regulations have changed since our new administration.


Miriam: Lisa and I hope that you really enjoyed this podcast and that you will give us a high rating. You’ll rate us well on iTunes or Stitcher, wherever you get your podcasts from. If you look at the notes for this show, you’ll see our email. Please drop us a line. Let us know what you thought and let us know what other topics you’d like to see discussed on this show. Have a great day.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.