On the merits, the court held that the public school system violated the IDEA by failing to address the parent’s concern about the provision of transition services for the move to public school kindergarten in the proposed IEP. Overruling two district court cases, the court declared that “Where transition services become necessary for disabled children to ‘be educated and participate’ in new academic environments, transition services must be included in IEPs in order to satisfy the IDEA’s ‘supplementary aids and services’ requirement.” 2017 WL 4018395, at *2, citing 20 U.S.C. § 1414(d)(1)(A)(i)(IV). The court said that the parent adequately raised concerns about transition, specifically the need to take into account the changes anticipated in the child’s educational experience, such as the number of fellow students and daily routines the child would be exposed to.

The court also held that the public school system “violated the IDEA by failing to specify in the child’s IEP the least restrictive environment during regular and extended school year,” Id. The court declared that “J.B.’s IEP contained only the vague statement that J.B. would ‘receive specialized instruction in the general education setting for Science and Social Studies activities as deemed appropriate by his Special Education teacher/Care Coordinator and General Education teacher.’ This improperly delegated the determination of J.B.’s placement to teachers outside the IEP process. The language was also too vague to enable J.B. to use the IEP as a blueprint for enforcement.” The court pointed out that the child was mainstreamed into Mandarin, which the court said was obviously inappropriate for him, but not necessarily mainstreamed into Science or Social Studies. The inability of the parent to participate in the IEP process denied the child free, appropriate public education.

The court also ruled that that the IEP’s failure to specify Applied Behavioral Analysis methodology violated the IDEA when the IEP team discussed the methodology at length and recognized that it was integral to the child’s education. The court stated for good measure, “ABA is widely recognized as a superior method for teaching children with autism.” Id. at 3. The case was remanded for a determination as to remedy.

Judge Bea dissented in part, crediting the defendant for its plan for gradual transition of the student and contending that the IDEA does not require that transition services be specified on the IEP, that the IEP adequately explained the extent to which the child would participate in education with children without disabilities, and that the IEP did not need to spell out the use of ABA methodology.

The significance of the case rests on each of its principal holdings. Although the IDEA is clear that transition services must be addressed for students nearing completion of their studies, the opinion is a definitive ruling about a more contested form of transition services. It declares that transition needs to be addressed as a young child moves into a different educational setting for kindergarten. The failure to specify the least restrictive setting in the IEP and the odd choices about the courses that were suitable for mainstream instruction could have been an oversight on the part of the school system, but one cannot help thinking that the court suspected the placement in the foreign language class was simply babysitting and wanted to be on record against that. Finally, the court came down decisively in favor of the position that when ABA therapy is raised and discussed at an IEP team meeting, a decision on the use of the methodology has to be in the child’s IEP. If integral to the child’s education, it must be specified in the IEP document. The court staked out clear positions on all these issues. To what degree the decision is persuasive outside the Ninth Circuit will emerge over time.

Much less obvious is what significance, if any, Fry v. Napoleon Community Schools, 137 S. Ct. 743, 69 IDELR 116 (Feb. 22, 2017), ought to have for IHOs-SROs. There the Court heard a challenge to the application of the IDEA’s administrative exhaustion requirement, 20 U.S.C. § 1415(l), to a claim against a school for not allowing a child to bring a service dog to school. The Court overturned the dismissal of the claim under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and remanded for further proceedings. Section 1415(l) requires exhaustion on non-IDEA claims “seeking relief that is also available under” the IDEA. The Court reasoned that the IDEA makes relief available for denials of free, appropriate public education. In deciding whether the lawsuit seeks relief for a FAPE denial, courts ought to look to the gravamen of the complaint actually filed in court, rather than asking whether the parents could have filed an action seeking relief under the IDEA. The Court identified clues for telling if the substance of the claim is for denial of FAPE. It is not FAPE if essentially same claim could have been brought in a context in which no FAPE obligation is present, for example, if the same suit could be brought for access to a public library, or if a similar suit could have brought by an adult visitor to a school or a school employee. On the other hand, if the parents began administrative proceedings under the IDEA, that would be a clue that the denial of a FAPE is the substance of the complaint.

Of course, what hearing officers do is the administrative proceeding, and so hearing officers might wonder why they need to worry about a decision that concerns whether they can be bypassed. There are at least three reasons to be aware of Fry and give thought to what it means, however, even if ADA and Section 504 claims will remain outside the hearing officer’s jurisdiction.

1. Fry is certain to raise awareness of ADA and Section 504 among the special education bar. As information about Fry filters down to lawyers who do special education cases, they will become more and more likely to add ADA and Section 504 claims to their cases, even when they take the cases through the IDEA administrative process. Whenever anything becomes widely known and discussed, some reaction is sure to follow. Applications to Northwestern Law School ballooned the year after Northwestern went to the Rose Bowl. Though IHOs and SROs may decide to do nothing on the claims, they will need to make clear for the record what they are doing. In a Texas case that originated in due process proceedings over a claim for violation of the IDEA, the court found Section 504 claims barred by the parent’s failure to exhaust, reasoning although the claims were included in the due process hearing request, the parent did not address them in the prehearing request for relief, and there was no decision on them from hearing officer. Reyes v. Manor Indep. Sch. Dist., 850 F.3d 251, 69 IDELR 147 (5th Cir. Mar. 7, 2017). It appears that the court may not have fully appreciated the reticence of a parent to present and the hearing officer to decide matters outside the hearing officer’s jurisdiction. Parent attorneys talking about ADA and Section 504 claims and including them in the due process hearing pleadings may be trying to make sure that they are not inadvertently waiving them.
2. Perhaps as a corollary of the awareness-raising as to ADA and Section 504, hearing officers may encounter situations in which the parties try to induce them to make decisions on issues for the collateral effects of the decisions in later ADA and Section 504 proceedings, even if the issues are not of central relevance to the IDEA claim before the hearing officer. There are many cases applying preclusion principles to bar claims for relief under the ADA and Section 504 based on findings with respect to IDEA claims. A recent one is Crawford v. San Marcos Consol. Indep. Sch. Dist., No. A-13-CV-206 LY, 2015 WL 236653, 64 IDELR 306 (W.D. Tex. Jan.15, 2015), adopted, (W.D. Tex. Feb. 3, 2015), aff’d, 637 F. App’x 808 (5th Cir. Feb. 2, 2016). Hearing officers may want to exercise caution about making findings if they do not intend to have the findings control future litigation on non-IDEA claims involving the same child.
3. Something that is more speculative, but may be of concern is the possibility that parties may try to use some of the language of Fry to contract the hearing officer’s jurisdiction in dubious ways. In limiting the scope of the exhaustion requirement, Justice Kagan’s majority opinion declared that “the only ‘relief’ the IDEA makes ‘available’ is relief for the denial of a FAPE.” Fry, 137 S. Ct. at 755. One can imagine a party trying to exclude an claim from the due process hearing on the ground that it is not asserting “a denial of a FAPE” but rather a violation of another IDEA requirement not specifically designated as FAPE, such as a failure of notice or other procedure. Whatever the scope of FAPE for application of the exhaustion requirement, when it comes to hearing officer decision making, FAPE has a very broad scope indeed. The statute provides that a due process hearing request may be made “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” 20 U.S.C. § 1415(b)(6)(A), and among other things, it makes explicit that denial of FAPE embraces procedural violations, id. § 1415(f)(3)(E)(ii).

So Fry may matter.

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:

1. “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.

2. “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.

3. “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).

4. “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).

5. “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.