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  • InsideTrack
  • April 19, 2017

    Special Education: New Standard More than De Minimis, Less than Equal

    Parents of students with disabilities now have more power to advocate for their children’s educational needs, under a unanimous U.S. Supreme Court decision.

    Monica M. Murphy

    smiling child in a classroom

    April 19, 2017 – Parents of students with disabilities have a little more ammunition to advocate for their child’s educational progress now that the U.S. Supreme Court has ruled that public schools must meet higher goals with respect to individualized plans.

    Last month, in Endrew F. v. Douglas County School District RE-1,1 the U.S. Supreme Court was unanimous in clarifying the rights of special education students, rejecting the idea that a school district is only obligated to provide educational services to students that offered something more than merely de minimis or trivial progress.

    The Court held that special education students are entitled to an education “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”2 The petitioner was an autistic child (and his parents) from Colorado.

    However, the Court also rejected the idea that students with disabilities are entitled to educational opportunities that are substantially equal to the opportunities afforded to children without disabilities, a disappointment for the disability advocacy community.

    “Although the Court did not go as far as we would have preferred, an 8-0 decision clearly rejecting the very low standard set by the lower courts in this case should send a strong message to courts and school districts around the country that the day of low expectations for students with disabilities is over,” said Curt Decker, executive director of the National Disability Rights Network.

    The Rowley Legacy

    Under the Individuals with Disabilities Education (IDEA), students are entitled to a free appropriate public education (FAPE), but just what it means to provide FAPE has been a matter of controversy since the law was first passed in 1975.

    Monica MurphyMonica Murphy is an attorney with Disability Rights Wisconsin.  She concentrates her practice on civil rights matters for people with disabilities including special education law. Reach her by email or by phone at (414) 773-4646.

    Children with disabilities are entitled to an individualized education program (IEP) that sets out the special education and related services that are to be based on the unique needs of the student. It is when parents disagree with school districts as to what those programs should include that the FAPE question arises.

    The U.S. Supreme Court first looked at the issue of FAPE in the landmark case of Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. V. Rowley.3

    In the Rowley case, a deaf student was found to have been provided free appropriate public education despite not being provided with American Sign Language interpreters and despite understanding “considerably less of what goes on in class than she would if she were not deaf.”4 

    In that case, because Amy Rowley, who was performing above average in school, was being educated in the regular classroom, and was being provided with an education “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade,” the school district had met its obligation to provide FAPE.5

    The Court reasoned that Congress’ intent in requiring FAPE was to ensure education sufficient to confer “some” educational benefit on the student.6 The Court viewed IDEA and its no-reject policy as designed to open the schoolhouse doors to students with disabilities but not necessarily to provide them with equal educational opportunity with their nondisabled peers nor to maximize their potential once they were in the door. 

    Despite the Court’s admonishment that it was not attempting “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act,” the Rowley decision did become the standard by which virtually all special education cases have been measured since.7

    Since that time, various courts have attempted to elaborate on the Rowley standard. In Polk v. Central Susquehanna Intermediate Unit 16, the Third Circuit Court of Appeals held that FAPE requires more than a trivial educational benefit.8 In Cypress-Fairbanks Independent School District v. Michael F., the Fifth Circuit Court of Appeals stated:

    “The IDEA guarantees only a basic floor of opportunity for every disabled child, consisting of specialized instruction and related services which are individually designed to provide educational benefit. Nevertheless, the educational benefit to which the Act refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be likely to produce progress, not regression or trivial educational advancement.”9 In other words, the benefit must be meaningful." 

    The Tenth Circuit, from which the Endrew F. case arose, reaffirmed in that decision what it said was that circuit’s long-subscribed interpretation that “the educational benefit mandated by IDEA must merely be more than de minimis.” The Tenth Circuit Court of Appeals, in a decision by a three-judge panel, specifically rejected the findings of other circuits requiring the higher standard that the educational benefit be meaningful.10

    The Supreme Court Decision in Endrew F.

    Endrew F. was diagnosed with autism at age two and attended school in the Douglas County School District from preschool through fourth grade. His parents were dissatisfied with the progress he was making. He struggled with behavior issues.

    Each year a new IEP was drafted, as is required by law, but his same basic goals and objectives carried over from year to year. The school district proposed an IEP for fifth grade that was more of the same. His parents decided to enroll him in Firefly Autism House, a private school that specializes in educating students with autism. 

    Endrew did much better there. They developed a behavior intervention plan that set out strategies for dealing with his most problematic behavior and they made more substantial academic goals. Within a few months, Endrew’s behavior improved significantly, and he was better able to make academic progress. 

    Approximately six months after Endrew started at Firefly, the school district proposed a new IEP, but Endrew’s parents did not think it was any better than the one proposed earlier. They filed a complaint with the Colorado Department of Education seeking reimbursement for Endrew’s tuition at Firefly. The litigation that ultimately arrived at the Supreme Court ensued from there.

    The U.S. Supreme Court’s opinion reviewed its decision in Rowley, including some of the inherent conflicts in the decision. The Court neither overruled nor distinguished the earlier decision but rather elaborated on it. The decision divided students with disabilities into two groups: those who are educated in the regular classroom with special education supports and services; and those who have more significant needs that limit their ability to make reasonable progress in the general curriculum.

    Rowley involved a student who was progressing smoothly through the regular curriculum. The holding that for a child fully integrated into the regular classroom an IEP should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade” still stands.

    The Court believes that for these children the system itself monitors the child’s progress by its methods of grading and advancement from grade to grade.

    The Court discussed IDEA’s emphasis on specially designed instruction and meeting the child’s unique needs. For children whose needs are more complex, the comparison to a regular education student passing from grade to grade does not suffice.

    For students not fully integrated into the regular education classroom, such as Endrew, one needs to look at the child’s circumstances. The “educational program has to be appropriately ambitious in light of his circumstances”11 and “[e]very child should have the chance to meet challenging objectives.”12

    The Court rejected the “merely more than de minimis” standard applied by the 10th Circuit, finding that would hardly amount to an education at all. Such a standard, the Court noted, would be akin to the problem Congress was trying to address with IDEA and discussed in the Rowley decision that many students with disabilities were sitting idly in classrooms waiting until they were old enough to drop out.13

    Students Entitled to More

    The Court held that IDEA requires “an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 

    "Reasonably calculated is based on the recognition that crafting an educational program ‘requires a prospective judgement by school officials,”14 the Court noted. “Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.”15

    The Court did not go as far as the parents were urging they should. The parents argued that 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 to children without disabilities.”

    The Court reasoned that such a standard was almost identical to what the majority in Rowley had rejected as unworkable and that in the many intervening years since the Rowley decision, Congress has not materially changed the definition of FAPE under IDEA.16

    The Endrew F. Court also reiterated the Rowley Court’s direction for courts to defer to the expertise of the school authorities and advised a reviewing court can expect those authorities to be able to offer a cogent and responsive explanation for their decisions.17

    What Does this Mean?

    With the decision in Endrew F., parents of students with disabilities have a little more ammunition to argue that IEPs need to be ambitious and challenging to a student and cannot be a simple modification or reiteration of the previous year’s goals. 

    This is true even for students with significant disabilities. The “merely more than de minimis or trivial” standards are now clearly gone and even the “some educational benefit” standard is on the ropes. FAPE requires IEPs that challenge a student and enables her to make reasonable progress.


    1 137 S. Ct. 988 (2017).

    2 Id. at 1001.

    3 458 U.S. 176 (1982).

    4 Id. at 185.

    5 Id. at 204.

    6 Id. at 200.  

    7 Id. at 202.

    8 853 F.2d 171, (CA 3 1988).

    9 118 F.3d 245, 248 (CA 5 1997).

    10 Endrew F. v. Douglas County School District, 798 F.3d 1329,1338 (CA 10 2015).

    11 Id. at 999.

    12 Id. at 1000.

    13 Id. at 1000-1001.

    14 Id. at 999.

    15 Id.

    16 Id. at 1001.

    17 Id. at 1001-1002.

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