Sequels to the Supreme Court’s decision in Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), continue to appear. One recent case from New York, AR v. Katonah Lewisboro Union Free School District, No. 18-CV-9938, 2019 WL 6251196, 75 IDELR 187 (S.D.N.Y. Nov. 21, 2019), considered the application of Endrew F.’s interpretation of the free, appropriate public education obligation in the context of a student diagnosed with apraxia, “a ‘neurological developmental condition where the motors center of the brain is affected’ in a way that causes individuals to have ‘difficulty formulating words, articulating words, pronouncing words, [and] retrieving words and word sounds,’” id. at *1 (quoting record). The child’s parents sought tuition reimbursement for three years of a private placement, starting in 2015, the year the student would have entered sixth grade at public school.
The case came down in favor of the school district, holding that each of the district’s proposed IEPs met the standard of offering education that was appropriate in light of the child’s circumstances. In 2015, in the same period the school was reevaluating the child, a private clinical psychologist diagnosed the child with dyslexia and central auditory processing disorder, stating that the child had at least average intelligence based on the WISC-IV and other indicators. However, the school’s psychological evaluation put the child’s scores on the Woodcock-Johnson III Tests of Achievement in the extremely low ranges and on a nonverbal intelligence in the borderline or low average ranges. Based on these and other assessments, the school’s psychologist disagreed with the private psychologist’s assessment that the student had at least average abilities intellectually. In discussions over the 2015-16 IEP, the parents at first agreed to additional testing to try to resolve the dispute but ultimately withdrew consent. The district recommended a 12:1+2 program for academics, with classroom accommodations, extended school year services, weekly counseling and an FM auditory system; the parents rejected the IEP and placed the student in a private school. The next two IEPs contained similar recommendations, with some additional features. The parents requested due process in 2017, seeking tuition reimbursement. The impartial hearing officer ruled in favor of the school district’s IEPs, though also finding that the private school met the student’s educational needs and equitable considerations generally supported reimbursement. The state review officer affirmed, not reaching the appropriateness of the private placement or the equitable considerations.
The court granted summary judgment to the school district. It discussed the Endrew F. decision at length, along with various Second Circuit and other decisions predating Endrew F. It then recited cases supporting deference to reasoned decisions of the SRO. The court noted that the SRO reviewed the child’s progress in the years preceding his removal from public school and found evidence of educational progress, specifically relying on progress reports and report cards following the child’s placement in self-contained classes. The SRO found that the 2015-16 IEP was similar to earlier programs, but included additional supports. The court did not disturb the SRO’s conclusion that the IEP was reasonably calculated to enable the student to make progress appropriate in light of his circumstances. Comparable analyses by the SRO for the later IEPs also met the court’s approval. Thus the court affirmed the SRO decision in favor of the district.
A footnote to the opinion contains a discussion of the language at the end of Endrew F. that “By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. 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.” Endrew F., 137 S. Ct. at 1001-02. The AR court declared: “To the extent Plaintiffs imply that Endrew F. . . somehow raised the standard of review applied to SRO decisions, the Court disagrees with that interpretation of the ‘cogent and responsive’ language. . . . In fact, when that paragraph is read in its entirety, it is clear that the Supreme Court is merely restating that federal courts should generally defer to the expertise of school authorities. . . . The Supreme Court was not rolling back its call for deference to school authorities. Regardless, given the depth to which the SRO discusses each of the IEPs and Plaintiffs’ arguments as to each of them, the Court does find the SRO Decision to be ‘cogent and responsive.’” AR, 2019 WL 6251196. at *11 n.9. The AR court thus applied what appears to be both an award of deference to school districts and an expectation that school districts will give cogent and reasonable explanations for why their IEPs offer appropriate education to the decision-making of the state review officer. This may not have been what the Supreme Court had in mind, but in any instance it seems that the AR court found the SRO’s analysis of the evidence convincing.