Endrew F. v. Douglas County SD: A Historical Perspective on FAPE & What It Means for Special Education Today

On March 22, 2017, the U.S. Supreme Court issued a unanimous ruling in favor of children with special needs and their parents. In the case of Endrew F. v. Douglas County School District, the Court determined that, when providing special education services to students with disabilities, school systems cannot simply ensure that a student makes minimal or trivial progress from year to year. School systems must ensure that a student make meaningful progress, given the student’s circumstances.

This ruling is of enormous significance in terms of the impact it will have on how we view “educational benefit” for students with disabilities. In making this ruling, the Court reexamined the 1982 Supreme Court ruling in Board of Education of Henrick Hudson Center School District v. Rowley, 458 U.S. 176, the first case in which the Supreme Court examined the requirements of the Individuals with Disabilities Education Act (IDEA).

In the Rowley case, a majority of the Court determined that the IDEA did not require school systems to provide students with disabilities an equal educational opportunity relative to students without disabilities. Instead, the Court in Rowley decided that school systems only needed to provide special education services “sufficient to confer some educational benefit upon the handicapped child.” However, the court in Rowley declined to specify what kind of progress would rise to the level of “some educational benefit.” In stark contrast to the Rowley decision, the Endrew F. v. Douglas County School District represents a landmark decision in favor of children with special needs—a decision that is nothing short of remarkable and will, heretofore, change the trajectory of how judges view progress “given the student’s circumstances.”

Central to both the Rowley and Endrew F. decision was the issue of the meaning of “free appropriate public education” (FAPE) and adequate educational progress. In the case of Amy Rowley, a student with a hearing impairment, the District Court agreed that Amy had been denied FAPE. The court acknowledged that Amy was making excellent progress in school. She was performing better than the average student in her class and was “advancing easily from grade to grade.” At the same time, the family argued that Amy understood considerably less of what goes on in class than she could if she were not deaf.” Given the fact that “it has been left entirely to the courts and the hearing officers to give content to the requirement of an appropriate education,” the District Court ruled that Amy’s education was not “appropriate” unless it provided her with “an opportunity to achieve her full potential commensurate with the opportunity provided to other children.” The Second Circuit Court affirmed this analysis. It then went to the Supreme Court.

As part of the Supreme Court’s decision in the Rowley case, the Court explained that the requirements of FAPE had, in fact, been satisfied. The Court further explained that this requirement is satisfied, and a child has received FAPE, if the child’s Individualized Education Plan (IEP) sets out an educational program that is “reasonably calculated to enable the child to receive passing marks and advance from grade to grade.” It is important to keep in mind that Amy Rowley was placed in a mainstream setting with accommodations for her deafness. The Court did require an IEP to be “reasonably calculated to enable the child to receive educational benefits,” and for students in general education classrooms, that generally entailed achieving “passing marks” and advancing from grade to grade.

In contrast, Endrew F. was diagnosed with Autism at age two. He attended the public school from preschool through fourth grade. During Endrew’s fourth-grade year, his parents were concerned that he was not making appropriate progress. Endrew exhibited multiple behaviors that affected his academic progress and his ability to access instruction, including screaming in class, climbing over furniture, climbing over other students, and running away from school. Endrew’s IEP, however, repeatedly carried over the same goals and objectives from one year to the next. The proposed IEP for fifth grade was substantially identical to his fourth-grade IEP, which had been ineffective in addressing his behaviors or academic needs.

As a result, Endrew’s parents unilaterally placed him in a nonpublic school specializing in educating children with Autism Spectrum Disorders. The school implemented a Behavioral Intervention Plan (BIP) that proved effective. Endrew made significant academic progress as a result of appropriate educational programming that included Applied Behavioral Analysis (ABA) and Speech & Language services he had not received in his public placement.

The family filed for due process. The administrative law judge (ALJ) found that the school system had provided “some” educational benefit, which was all it was obliged to provide. The family appealed to the U.S. District Court and the U.S. Court of Appeals for the Tenth Circuit, both upholding the decision of the ALJ. The appellate court decision concluded that the child’s IEP was appropriate as long as it conferred an “educational benefit that is merely more than de minimis.” The Tenth Circuit “acknowledged that Endrew’s performance under past IEPs did not reveal immense educational growth.” But, it concluded, nonetheless, that annual modifications to Endrew’s IEP objectives were sufficient to show a pattern of, at least, minimal progress. The appeal was then taken to the U.S. Supreme Court.

Justice Roberts, in writing the decision, referred frequently to the Rowley Court’s decision of Congress’ goals in originally passing the IDEA in stating: “The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” This reflects the broad purpose of the IDEA, an “ambitious” piece of legislation enacted “in response to Congress” perception that a majority of handicapped children in the United States “were either totally excluded from schools or sitting idly in regular classrooms awaiting the time they were old enough to drop out.” A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.

Justice Roberts continued by noting that the IEP must be appropriate in light of the child’s circumstances. A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique” needs. An IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth. The IDEA “requires participating states to educate a wide spectrum of handicapped children, and the benefits obtainable by children at one end of the spectrum will differ dramatically from those attainable by children at the other end, with infinite variations in between.”

As a result, the Supreme Court rejected the conclusion by the Tenth Circuit and the Colorado District Court that any minimal or trivial progress meant that the school system had met its obligations. The Court, however, still declined to impose a clear formula to determine whether a student was receiving “sufficient” educational benefit. As a result, the question of what constitutes “appropriate progress” or “sufficient educational benefit” will likely continue to be the subject of disputes between parents and school systems in the future. However, this decision provides infinitely more guidance as to the intent of IDEA.

An interesting parallel can be drawn from this important decision to the trajectory of special education since the Rowley decision in 1982. One such parallel was the Regular Education Initiative (REI) that came into prominence in the 1980s. REI represented a movement to try to correct the limitations of IDEA by eliminating separate special education programs and creating one system of general education in which students with disabilities were to be supported within general education classrooms. In essence, this was the birth of a movement towards full inclusion of students with disabilities into regular classrooms. School systems nationwide responded by eliminating separate programs within their districts, specialized teacher training, and pull-out services to address the individualized learning needs of students in favor of services provided in a mainstream, inclusive setting. Special education teachers were re-assigned to assist in general education classes, co-teach, and ensure that students were receiving appropriate modifications and accommodations.

Further, underlying REI was a set of “Essential Best Practices in Inclusive Schools.” Chief among these best practices are:

  • Ability of a student to attend the school they would attend if they did not have a disability
  • Proportional representation in classes, clubs, extracurricular activities
  • Being an equal member of an age-appropriate general education class
  • Provision of accessible print and other learning materials in accessible formats
  • Classroom participation in similar ways as students without disabilities
  • Progression through grades according to the same patterns as students without disabilities
  • Instruction that is universally designed with multiple options for representation, presentation, and engagement
  • Instruction that reflects the learning styles of all students in the class by the use of visual, tactile, and kinesthetic materials and experiences
  • Related services and specialized instruction provided within the typical routines of the school day in addition to, not in place of, core general academic and behavioral instruction
  • Related services delivered primarily through multi-tiered instruction and consultation in the classroom, or prior to or after the school day.
  • Student supports are identified and provided to enhance social and academic participation in general education classrooms and other inclusive settings.

The benefit of REI is undeniable. REI paved the way for students with disabilities to be included in classes, activities, and other aspects of school life, alongside students without disabilities to the greatest extent possible. Ensuring that students with disabilities are provided access to education comprised of high standards in line with their non-disabled peers must continue to be a goal for all children with disabilities. The unintended consequence, however, of REI was the loss of what is special about special education—systematic, explicit, supportive, and intensive instruction that is informed by data and research-based practices. Inclusion does not equal specialized instruction, which is at the heart of IDEA. In the final analysis, one end of the continuum of services for students with special needs was bolstered while the other end slowly dissolved and fragmented.

The case of Endrew F. v. Douglas County School District should be celebrated for many reasons, not the least of which is what this decision means for Endrew and his future, but also because it brings us back to the original intent of IDEA and what is special about special education. As Justice Roberts wrote on behalf of the entire Court, “The instruction must be specially designed to meet a child’s unique needs. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.” Secondly, it advances the intended purpose of IDEA to the present day. Over forty years after the passage of IDEA, we know a great deal more about what research tells us about how to teach children with special needs. Research suggests that the most productive model for improving outcomes for students with special needs is one in which students’ instructional gaps are identified, progress relative to these gaps is monitored, and explicit and intensive intervention is provided.

For Catapult Learning’s Special Education Schools, this decision coincides with our rigorous, research-based focus on Data-Based Individualization (DBI) and lesson implementation for intensive interventions. This process is reflected in our 4-Step Student Plans and teacher training initiatives based on the principles of DBI. DBI is a research-based process for individualizing and intensifying interventions through the systematic use of assessment data, validated intervention, and research-based adaptation strategies.

The National Center for Intensive Intervention (NCII) describes four categories of practice for planning intensive intervention.

  • Practice 1 is changing intervention dosage or time by increasing the quantity of instruction. This allows more time for instruction and practice with feedback.
  • Practice 2 is changing the learning environment to promote attention and engagement. This includes reducing group size, creating groups of students with similar needs, and changing the educational setting to reduce noise and other distractions.
  • Practice 3 is combining cognitive processing strategies with academic learning, as students with special needs often struggle with processes related to executive function and self-regulation.
  • Practice 4 is modifying delivery of instruction through prioritizing skills to be taught based on instructional match; providing systematic and explicit instruction; using simple, precise, and replicable language; providing frequent opportunities to respond, including opportunities for guided and independent practice; and providing specific feedback.

These principles reflect the “best practices” of our special education schools. It is safe to say that every student attending one of our special education schools has not met success in former settings, just as was the case for Endrew F. In essence, we have thousands of Endrews in our programs. We must now rise to the new standard set forth by the Supreme Court and provide instruction that is systematic, explicit, supportive, and intensive. Our students deserve no less.


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