Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 69 IDELR 116 (Mar. 22, 2017) is old news by now. Decided on March 22, it overturned the Tenth Circuit’s “merely more than de minimis” standard for the educational benefit guaranteed by the Individuals with Disabilities Education Act in favor of a “markedly more demanding” interpretation of the requirement. A child’s educational program has to be “appropriately ambitious,” and “every child should have the chance to meet challenging objectives.” Nevertheless, the Court did not overrule Board of Education v. Rowley, 458 U.S. 176 (1982), and it rejected a standard for free, appropriate public education that would ensure students with disabilities have “opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” The Court also noted the importance of deference to the exercise of expertise and judgment by school authorities, while at the same time stating that “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 new news is what lower courts have been doing in the wake of the decision. A quick look at the case law shows a number of reactions:
- “Endrew Who?” Some cases cite Endrew F., but do not appear to treat it as changing the FAPE landscape in any meaningful way. One is F.L. v. Board of Education of Great Neck U.F.S.D., No. 15–cv–5916, 2017 WL 3574445, at *13, 70 IDELR 182 (E.D.N.Y. Aug. 15, 2017), appeal filed, No. 17-2881 (2d Cir. Sept. 15, 2017), which, after citing the case said, “Therefore, a school district satisfies its obligations arising under the IDEA ‘if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement,’” quoting a 2010 district court opinion.
- “What’s more, this is what we’ve been saying all along.” Courts in some circuits have said that the Endrew F. FAPE standard is no lower than that they have already been applying. Among these cases are: C.G. v. Waller Indep. Sch. Dist., No. 16-20439, 2017 WL 2713431, 70 IDELR 61 (5th Cir. June 22, 2017) (unpublished); T.M. v. Quakertown Cmty. Sch. Dist., No. 16–3915, 2017 WL 1406581, 69 IDELR 276 (E.D. Pa. Apr. 19, 2017); and E.D. v. Colonial Sch. Dist., No. CV 09-4837, 2017 WL 1207919, 69 IDELR 245 (E.D. Pa. Mar. 31, 2017). Of course, this view is most persuasive in circuits like the Third, which had previously adopted a “meaningful benefit” interpretation of the FAPE standard, and may be less plausible in other circuits.
- “Here, you deal with this.” A few courts, though perhaps surprisingly few, have remanded FAPE issues to lower courts or hearing officers-administrative law judges for application of Endrew F. to the facts of the case. Among these are M.C. v. Antelope Valley Union High Sch. Dist., 852 F.3d 840, 69 IDELR 203 (9th Cir. Mar. 27, 2017), as amended and superseded, 858 F.3d 1189 (9th Cir. May 30, 2017), petition for cert. filed, No. 17-325 (U.S. Aug. 31, 2017); C.D. v. Natick Pub. Sch. Dist., No. CV 15-13617-FDS, 2017 WL 2483551, 69 IDELR 213 (D. Mass. Mar. 28, 2017); and Endrew F. itself, Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, No. 14-1417, 2017 WL 3300349, 117 LRP 31173 (10th Cir. Aug. 2, 2017) (unpublished). The C.D. case returned, as remands do, and led to a holding that affirmed the hearing officer’s original FAPE determination under the law of the First Circuit, though the court remanded the case again for a determination as to least restrictive environment. C.D., 2017 WL 2483551, 70 IDELR 120 (D. Mass. July 21, 2017).
- “It comes out the same when we apply Endrew F.” The court in J.C. v. Katonah-Lewisboro Cent. Sch. Dist., 690 F. App’x 53, 55 n.2, 70 IDELR 2 (2d Cir. May 9, 2017), commented: “Because we conclude that the School District failed to provide T.C. with a free and appropriate public education under the existing precedent in this circuit, we need not decide whether Endrew F. raised the bar for a free and appropriate public education or left Second Circuit precedent intact (the Supreme Court’s decision certainly did not reduce the force of the requirement).” Cases applying Endrew F. to facts evaluated under earlier standards and coming out in favor of the school district include D.B. v. Ithaca City Sch. Dist., 690 F. App’x 778, 70 IDELR 1 (2d Cir. May 23, 2017); R.B. v. New York City Dep’t of Educ., 689 F. App’x 48, 69 IDELR 263 (2d Cir. Apr. 27, 2017); J.R. v. Smith, No. DKC 16-1633, 2017 WL 3592453, 70 IDELR 178 (D. Md. Aug. 21, 2017); J.R. v. New York City Dep’t of Educ., No. 15-CV-364, 2017 WL 3446783, 70 IDELR 151 (E.D.N.Y. Aug. 10, 2017), appeal filed, No. 17-2809 (2d Cir. Sept. 8, 2017); A.G. v. Board of Educ. of the Arlington Cent. Sch. Dist., No. 16 CV 1530, 2017 WL 1200906, 69 IDELR 210 (S.D.N.Y. Mar. 29, 2017).
- “Things have changed.” A number of courts have forthrightly acknowledged that Endrew F., though it does not overrule Rowley on its facts, adopts a much more demanding standard than that used in many cases interpreting Rowley. M.L. v. Smith, 867 F.3d 487, 70 IDELR 142 (4th Cir. Aug. 14, 2017), admitted that the Fourth Circuit standard mirrored that of the Tenth Circuit supplanted by Endrew F., though the court said the issue was irrelevant to the resolution of the case, which involved an Orthodox Jewish family’s demand for a program for their child providing religious and cultural instruction. Paris Sch. Dist. v. A.H., No. 2:15-CV-02197, 2017 WL 1234151, 69 IDELR 243 (W.D. Ark. Apr. 3, 2017), found a school district program inadequate, noting that the Eighth Circuit previously used a “merely more than de minimis” test.