Free, appropriate public education, behavioral interventions and supports, placement

On December 7, 2017, the U.S. Department of Education Office of Special Education and Rehabilitative Services (OSERS) released a document entitled Questions and Answers (Q&A) on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1,

The document may also be found at 117 LRP 50044. It features 20 questions and answers about the interpretation and application of Endrew F., 137 S. Ct. 988, 69 IDELR 174 (Mar. 22, 2017).

Endrew F. is the first Supreme Court case since Board of Education v. Rowley, 458 U.S. 176 (1982), to interpret school districts’ obligation to afford children with disabilities free, appropriate public education (FAPE). It rejected the lower court’s interpretation that FAPE is satisfied with services calculated to provide an educational benefit that is ‘merely more than de minimis.’” The FAPE standard is “markedly more demanding” than that test; the educational program has to be “appropriately ambitious in light of” the child’s “circumstances,” and “every child” must be given “the chance to meet challenging objectives.” On the other hand, Rowley was not overruled, and the Court did not adopt a test of proportional maximization of opportunity. It noted that deference is due to decisions of school authorities, though it stressed, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

The first few questions in the Q&A document explain Endrew F.’s facts and holding, give the statutory definition of FAPE, and describe Rowley. One somewhat cryptic passage is question 8:

  1. Does the standard in Endrew F. apply prospectively to IDEA cases?

Yes. The Supreme Court decisively rejected the “merely more than de minimis” standard used by the Tenth and other Circuits; therefore that standard is no longer considered good law. The Court explained, “[a] student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all…The IDEA demands more.” Now, as a result of Endrew F., each child’s educational program must be appropriately ambitious in light of his or her circumstances, and every child should have the chance to meet challenging objectives.

Although OSERS is clearly correct that Endrew F. must be applied in the future, the comment should not be taken to imply that the case applies prospectively only. Instead, Endrew F. stands as an interpretation of a substantive legal requirement, and should be expected to apply retroactively to all cases that are not yet final. The Court remanded the case for application of the corrected interpretation, and a number of other courts have remanded cases pending on appeal for reconsideration in light of Endrew F. See, e.g., M.C. ex rel. M.N. v. Antelope Valley Union High School Dist., 858 F.3d 1189 (9th Cir. 2017), cert. denied, No. 17-325, 2017 WL 3839458 (U.S. Dec. 11, 2017); C.D. ex rel. M.D. v. Natick Pub. Sch. Dist., No. 15-13617-FDS, 2017 WL 2483551 (Mar. 28, 2017). The next question clarifies that Endrew F.’s standards apply to all cases regardless of the child’s age, disability, or placement (Question 9).

The following section of the document, Considerations for Implementation, takes on such questions as what “reasonably calculated” means in the Court’s phrase “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (Question 10). The answer says:

IEP Team members should consider how special education and related services, if any, have been provided to the child in the past, including the effectiveness of specific instructional strategies and supports and services with the student. In determining whether an IEP is reasonably calculated to enable a child to make progress, the IEP Team should consider the child’s previous rate of academic growth, whether the child is on track to achieve or exceed grade-level proficiency, any behaviors interfering with the child’s progress, and additional information and input provided by the child’s parents.

The questions that ensue discuss “progress appropriate in light of the child’s circumstances” and “every child should have the chance to meet challenging objectives.” (Questions 11 and 12). The text stresses the individualized nature of the FAPE inquiry. Question 12, introducing a thread pursued through much of the rest of the document, also stresses the need to align “instructional strategies and curricula to both challenging State academic content standards and ambitious goals.” Question 13 emphasizes that the general education curriculum remains the key:

[T]he child’s IEP must be designed to enable the child to be involved in, and make progress in, the general education curriculum. The term “general education curriculum” is “the same curriculum as for nondisabled children.” We have previously clarified that the phrase “the same curriculum as for nondisabled children” is the curriculum that is based on a State’s academic content standards. This alignment, however, must guide, and not replace, the individualized decision-making required in the IEP process. [footnotes omitted]

For children with the most severe cognitive disabilities, annual goals must still be appropriately ambitious and based on state content standards (Question 14).

Subsequent questions discuss the IEP process, emphasizing, as OSERS has before, that a child’s lack of progress triggers a need to review the child’s program: “If a child is not making progress at the level the IEP Team expected, despite receiving all the services and supports identified in the IEP, the IEP Team must meet to review and revise the IEP if necessary, to ensure the child is receiving appropriate interventions, special education and related services and supplementary aids and services, and to ensure the IEP’s goals are individualized and ambitious.” (Question 15). Question 16 notes the importance of considering behavioral needs, something directly at issue in Endrew F.’s own case. Question 17 reiterates that placement decisions must be individualized, and further notes that “placement in regular classes may not be the least restrictive placement for every child with a disability.”

Questions 18 and 19 ask whether IEP teams and state education departments should act differently as a result of the Supreme Court decision. The questions give OSERS a chance to reinforce ideas about best practices for IEP teams and states. States, in particular, have the obligation to “review policies, procedures, and practices to provide support and appropriate guidance to school districts and IEP Teams to ensure that IEP goals are appropriately ambitious and that all children have the opportunity to meet challenging objectives.” (Question 19). Question 20 points out that parents’ due process rights are unaffected by Endrew F. and continue to include a right to tuition reimbursement in proper circumstances.

OSERS reports that it is interested in receiving comments from families, teachers, administrators, and other stakeholders to help identify questions and best practices for implementing Endrew F. Comments on the Q&A document and additional questions may be forwarded to OSERS by email at