The Real-Life Impact of the Supreme Court Opinions in ...

The Real-Life Impact of the Supreme Court Opinions in Endrew and Fry

Jose Martin, Richards Lindsay & Martin, LLP

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The Real Life Impact of the Supreme Court Opinionsin Endrew and Fry

Presented byJose L. Martín

AttorneyRichards Lindsay & Martín, L.L.P.—Austin, Texas

[email protected] © 2017 Richards, Lindsay & Martín, L.L.P.

Endrew F. v. Douglas County Sch. Dist. RE-1, 69 IDELR 174 (2017)

§ Recent Supreme Court opinion involving a FAPE dispute on a child with severe autism

§ Lower courts had determined that the student had made at least minimal progress for FAPE

§ 10th Circuit standard for FAPE was one of “barely more than de minimis”

§ Parents appealed successfully (writ granted) to Supreme Court

Endrew F. v. Douglas County Sch. Dist. RE-1, 69 IDELR 174 (2017)

§ Court first reviewed 1982 opinion in Rowley—FAPE = IEP developed under IDEA procedures and reasonably calculated to confer educational benefit

§ Court noted Rowley involved a sp ed student served in regular classes/curriculum

For such a student FAPE generally means normal advancement from grade to grade

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§ But, Court stated Rowley was not as helpful in cases of students served in sp ed classes with modified curricula

§ Court noted that Rowley was correct in holding that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end”

An acknowledgement that expected progress depends on severity of disability and other factors…

§ Court thus decided to elaborate on the Rowleyeducational benefit standard of FAPE

Clarified FAPE Standard—Schools must offer IEPs “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”

§ “The question is whether the IEP is reasonable, not whether the court regards it as ideal”

§ The statement in Rowley that IDEA “’did not guarantee any particular level of education’ simply reflects the unobjectionable proposition that the IDEA cannot and does not promise any particular educational outcome”

Court agrees with longstanding proposition that IDEA does not require an optimal, ideal, or potential-maximizing education

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§ But, the IEP must be geared toward progress—”After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” (“program must be appropriately ambitious”)

§ Appropriate progress “in light of child’s circumstances” reflects the individualized nature of special education

Circumstances?—Type of disability, severity, environmental issues, behavior, parent participation/cooperation, etc…

§ 10th Circuit standard of “barely more than de minimis” is too low compared to grade-to-grade advancement required for mainstreamed sp edstudents, and is therefore rejected

§ But, Court also rejected parents’ proposed standard of “educational opportunities equal to those afforded to nondisabled individuals” on two bases:

Standard was rejected in Rowley in 1982

Congress has not change law since (in four reauthorizations since Rowley)

§ Other Dicta Statements (legal asides):

“The IEP provisions reflect Rowley’s expectation that, for most children, FAPE will involve integration in the regular classroom…”

“The goals may differ, but every child should have a chance to meet challenging objectives.”

“A reviewing court may fairly expect [school] authorities to be able to offer a cogent and responsive explanation for their decisions…”

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§ Other Dicta Statements (asides):

Question—Do the dicta statements intend a legal change in the LRE analysis or in determinations of procedural compliance?

Opinions on Impact of Endrew§ Some commentators have hailed Endrew as a case

with generational impact

§ Others feel the Endrew standard does not represent a major change in existing FAPE formulations

§ Some feel Endrew is only a clarification, or an elaboration to, the Rowley standard, made necessary by one circuit court’s restrictive interpretation

Post-Endrew Federal Court Opinions§ Since Endrew was decided, a number of District

Courts, and some Circuit Courts, have issued opinions interpreting the impact of the new FAPE formulation

§ The cases can help us understand the real-world impact of Endrew

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Post-Endrew Federal Court Opinions§ I.Z.M. v. Rosemount-Apple Valley-Eagan Pub.

Schs., 70 IDELR 86 (8th Cir. 2017)

IEP’s focus on student making educational “progress” complied with Endrew standard

Court upheld both the ALJ decision and District Court opinion holding school provided a FAPE (despite the opinions being issued before Endrew)

§ D.B. v. Ithaca City Sch. Dist., 70 IDELR 1(2nd

Cir. 2017)§ R.B. v. New York City Dept. of Educ., 69 IDELR

263 (2nd Cir. 2017)

IEP “must aspire to provide more than de minimis educational progress” (R.B.)

No change to analysis of procedural compliance

Cases still cite Rowley—appear to view Endrew as an elaboration of Rowley

§ C.G. v. Waller Ind. Sch. Dist., 117 LRP 24920 (5th Cir. 2017)

District Court decided case before Endrew

But, Court felt that the standard used focused on “progress, not regression or trivial advancement” and “meaningful” benefit (see Michael F. v. Cypress-Fairbanks Ind. Sch. Dist., 26 IDELR 303 (5th Cir. 1997))

Thus, Court found lower court’s analysis “fully consistent” with Endrew

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§ Dallas Ind. Sch. Dist. v. Woody, 117 LRP 30441 (5th Cir. 2017)

Opinion cites Endrew as an elaboration on the Rowley FAPE standard, not a major change to the FAPE analysis

Court noted that regulatory timelines “allow school districts to evaluate the student so an IEP may be proposed that ‘is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.’” (quoting Endrew)

§ M.C. v. Antelope Valley Union High Sch. Dist., 69 IDELR 203 (9th Cir. 2017)

States that the Endrew standard represents “a more precise standard” than Rowley

“In other words, the school must implement an IEP that is reasonably calculated to remediate and, if appropriate, accommodate the student’s disabilities so that the child ‘can make progress in the general education curriculum, commensurate with his non-disabled peers, taking into account the child’s potential.”

§ M.C. v. Antelope Valley Union High Sch. Dist., 69 IDELR 203 (9th Cir. 2017)

But are the Court’s “other words” a fair restatement of Endrew? Is not the 9th Circuit’s interpretation closer to the higher “equal opportunity” standard specifically rejected by the Supreme Court?

(This decision means uncertainty for schools in the 9th Circuit states, as the Court’s interpretation of Endrew is likely to be challenged)

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§ California District Courts (prior to 9th Circuit decision in Antelope Valley)

K.M. v. Tehachapi Unified Sch. Dist., 69 IDELR 241 (E.D.Cal. 2017)N.G. v. Tehachapi Unified Sch. Dist., 69 IDELR 279 (E.D.Cal. 2017)

In both cases, the Judge held that the Endrew standard only “clarifies” Rowley

No change to the procedural analysis that precedes the substantive FAPE question

§ Other Post-Endrew District Court Opinions

E.D. v. Colonial Sch. Dist., 69 IDELR 245 (E.D.Pa. 2017)

Hearing Officer’s application of “meaningful benefit” standard complied with Endrew

“Third Circuit cases had already rejected the de minimis standard in lieu of a more stringent standard” of meaningful benefit


E.G. v. Great Valley Sch. Dist., 70 IDELR 3 (E.D.Pa. 2017)

Likewise, equates 3rd Circuit’s “meaningful benefit” analysis to Endrew formulation

While “the benefit must be substantial, not minimal,” “the FAPE promised to students under the IDEA is not a perfect or ideal education.”

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E.G. v. Great Valley Sch. Dist., 70 IDELR 3 (E.D.Pa. 2017)

Court quotes Endrew, stating that “we give deference to the District where ‘it offers a cogent and responsive explanation for their decisions…’”

Practical Focus—Increased emphasis on accurate prior written notices and documentation of sound reasoning in IEP team meetings


T.M. v. Quakertown Comm. Sch. Dist., 69 IDELR 276 (E.D.Pa. 2017)

As other Pennsylvania Courts, equates 3rd

Circuit’s “meaningful benefit” analysis to Endrew formulation

Brandywine Heights Area Sch. Dist. v. B.M., 69 IDELR 212 (E.D.Pa. 2017)

Applies “meaningful benefit” standard, sees Endrew as a “clarification,” notes S.Ct. rejected higher “equal opportunity” standard


Braden O v. West Chester Area Sch. Dist., 70 IDELR 97 (E.D.Pa. 2017)

Parker C. v. West Chester Area Sch. Dist., 70 IDELR 94 (E.D.Pa. 2017)

Again, both cases hold application of “meaningful benefit” standard complies with Endrew formulation

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C.M. v. Warren Ind. Sch. Dist., 69 IDELR 282 (E.D.Tex. 2017)

E.R. v. Spring Branch Ind. Sch. Dist., 117 LRP 28312 (S.D.Tex. 2017)

Both cases hold application of Fifth Circuit’s “meaningful benefit” standard complies with Endrew formulation

And, both cases involved students with severe disabilities


C.D. v. Natick Pub. Sch. Dist., 117 LRP 29263 (D.Mass. 2017)

ALJ, after remand, asserted she applied a “meaningful benefit” standard consistent with Endrew—Court agrees, calls Endrew a “refined” formulation

“Endrew explains that the benefit to be provided is ‘appropriate’ educational progress. That is consistent with a ‘meaningful educational benefit.’”


L.M. v. Willingboro Township Sch. Dist., 70 IDELR 34 (D.N.J. 2017)

Again, equates 3rd Circuit’s “meaningful benefit” with Endrew formulation

Board of Educ. of Albuquerque Pub. Schs. v. M.M., 117 IDELR 31229 (D.N.M. 2017)

Existing “meaningful progress” analysis consistent with Endrew (considered student’s severe ASD and delays, which resulted in exceedingly slow progress)

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Unknown Party v. Gilbert Unified Sch. Dist., 117 LRP 30652 (D.Az. 2017)

Also sees Endrew standard as consistent with “meaningful benefit” standards (despite 9th

Circuit’s opinion in Antelope Valley)

Parents wanted child to remain in a setting where he made only minimal progress—Court disagreed, citing Endrew as holding that the IDEA is not satisfied with de minimisprogress, must consider potential


Avaras v. Clarkstown Cent. Sch. Dist., 117 LRP 28314 (S.D.N.Y. 2017)

Endrew requires focus on “progress” and “more than trivial advancement,” as already analyzed in existing 2nd Circuit caselaw

§ Endrew’s Impact on Federal Courts

Up to now, most post-Endrew courts have found that their Circuit’s existing FAPE analyses are consistent with Endrew language

The “meaningful benefit” circuits tend to focus on progress, as emphasized in Endrew opinion

And, based on Rowley, they also acknowledge and consider the child’s circumstances, as Endrew reemphasized

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Also, the circuits already applied a higher “meaningful benefit” standard than the “barely more than de minimis” formulation the Supreme Court rejected in Endrew

E.g., the 3rd Circuit’s “meaningful benefit” formulation (Polk v. Central Susquehanna In. Unit No. 16, 441 IDELR 130 (3rd Cir. 1988)), which then influenced the 5th Circuit’s own “meaningful benefit” analysis (Michael F. v. Cypress-Fairbanks Ind. Sch. Dist., 26 IDELR 303 (5th Cir. 1997))


Only the 9th Circuit Court (Antelope Valley) has issued an opinion with dicta interpreting Endrew as a major expansion of the Rowleystandard

In no reported case up to early August of 2017 has a lower decision substantively changed on remand/reconsideration in light of Endrew

§ Other Circuit Courts’ Pre-Endrew FAPE Formulations:

1st—”Meaningful” benefit (see, e.g., D.B. v. Esposito, 58 IDELR 181 (1st Cir. 2012))

2nd—”Meaningful” benefit (M.W. v. New York City Dept. of Educ., 61 IDELR 151 (2nd Cir. 2013))3rd—”Meaningful” benefit (Coleman v. Pottsdown Sch. Dist., 64 IDELR 33 (3rd Cir. 2014))

4th—”Meaningful” benefit (O.S. v. Fairfax County Sch. Bd., 66 IDELR 151 (4th Cir. 2015))5th—”Meaningful” benefit (Cypress-Fairbanks Independent Sch. Dist., 26 IDELR 303 (5th Cir. 1997))6th—”Meaningful” benefit (T.W. v. Northport Pub. Sch., 59 IDELR 64 (6th Cir. 2012))

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§ Other Circuit Courts Pre-Endrew FAPE Formulations:

7th—Benefit with “progress,” citing 5th Circuit test (M.B. v. Hamilton Southeastern Schs., 58 IDELR 92 (7th Cir. 2011))8th—”Benefit,” but “progress is an important factor” (M.M. v. District 0001 Lancaster County Sch., 60 IDELR 92 (8th Cir. 2012))9th—”Benefit,” although cases have also used the term “meaningful” (K.S. v. Fremont Unified Sch. Dist., 56 IDELR 190 (9th Cir. 2011); S.W. v. Governing Bd. of East Whittier City Sch. Dist., 60 IDELR 124 (9th Cir. 2013))10th—”Barely more than de minimis” (now overturned by Supreme Court)

§ Other Circuit Courts Pre-Endrew FAPE Formulations:

11th—“Adequate educational benefit based on surrounding and supporting facts” and “child’s individual needs”(Phyllene W. v. Huntsville City Bd. of Educ., 66 IDELR 179 (11th Cir. 2015))

D.C.—Plain “educational benefit” per Rowley (Reid v. District of Columbia, 43 IDELR 32 (D.C.Cir. 2005); Kerkam v. Superintendent, D.C. Pub. Schs., 17 IDELR 808 (D.C.Cir. 1991))

Practical “Takeaways” from Endrew§ IEP goals for students with severe disabilities

must nevertheless be appropriately ambitious

Present levels of performance should be advancing commensurate with potential for progress

Goals and objectives should likewise show progression in skills, even if modest due to severity of disability

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Practical “Takeaways” from Endrew§ Evaluators may want to render opinions on

students’ “potential for growth”

For students with lower potential for growth evaluations may want to document realistic expectations for progress, as supported by data (cognitive assessment data, behavior data, developmental delay, presence of multiple disabilities, etc…)

Practical “Takeaways” from Endrew§ Procedurally, schools should focus on well-

articulated prior written notices (PWNs) and documentation of the team’s reasoning

Endrew emphasizes that schools must have cogent and responsive explanations for their educational decision-making

Thus, schools should focus on developing quality PWNs and documenting logical reasoning of IEP team decisions

Practical “Takeaways” from Endrew§ Schools should document any circumstances

that may work to limit a student’s progress

The existence of any factor detrimental to student progress should be documented

To the degree it can, any such factor should be discussed and, if possible, addressed at IEP team meetings

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Practical “Takeaways” from Endrew§ IEP teams should take action when fully

mainstreamed students are not passing

As Endrew emphasizes that FAPE for fully mainstreamed students means advancement from grade to grade, IEP teams should meet promptly to address failure in regular classes

E.F. v. Napoleon Cmty. Schs., 62 IDELR 201 (E.D.Mich. 2014)(Fry Lower Court Opinion)

§ Basics First—IDEA & ADA/504 Rights

“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities …” 20 U.S.C. §1415(l).

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§ IDEA & ADA/504 Rights

“… except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.” 20 U.S.C. §1415(l).

Meaning, even if a claim exists under another law, if relief is available under IDEA, the IDEA due process must be exhausted first

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• Why Exhaustion Matters From a Policy Perspective…

Federal courts are “generalists” that deal with all kinds of legal matters

State agencies and hearing officers are specialists on disability law matters

The administrative process serves to develop a record, which is heard by a hearing officer, which in turn assists a federal court that may eventually have to rule on the case (thus the deference to hearing officer decisions on IDEA appeals)

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• Why a Litigant Might Want to Skip IDEA remedies…

IDEA due process can be time-consuming and costly

Most importantly, however, IDEA litigation cannot lead to money damages

A plaintiff that seeks money damages may not want to spend time and money on litigation that cannot confer that remedy

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§ What’s left under Section 504/ADA when an appropriate IEP has been provided?

The range of services remaining would seem rather narrow (i.e., something to provide equal opportunity to access, participate, or benefit but not related to educational need?) and/or

Unique and specific regulations such as effective communication and equal access provisions for service animals

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• E.F. v. Napoleon Cmty. Schs., 62 IDELR 201 (E.D.Mich. 2014)(Lower Court Opinion)

8-year-old IDEA-eligible girl born with spastic quadriplegic cerebral palsy, requires physical assistance in daily activities

Pediatrician wrote prescription for a service animal

“Wonder” is a Goldendoodle, trained to retrieve dropped items, help her balance when using a walker, open/close doors, turn on/off lights, transfer to and from toilet, etc.

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Wonder also “enables [E.F.] to develop independence and confidence and helps her bridge social barriers.” (Note—Sounds kind of like something an IEP would do…)

Parents allege that Wonder is specially trained and certified. (Note—DOJ regs do not require certification, informal training is OK]

School decides Wonder cannot come to school, since IEP meets all FAPE needs

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School then allows Wonder to come to school for a 30-day trial period, at end of which school reasserts that dog is not needed for FAPE and cannot return

Parents sue, alleging violations of §504 and ADA—They seek a declaratory judgment, monetary damages, and attorney's fees.

School argues that parents have failed to exhaust required administrative remedies under IDEA

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Court notes that parents are not alleging that there was a denial of FAPE or violation of IDEA

But, Court “fails to see how Wonder’s presence would not — at least partially — implicate issues relating to E.F.’s IEP,” such as requiring various modifications to the IEP to facilitate the dog

Thus, Court dismisses case for failure to exhaust IDEA remedies, the 6th Circuit affirms the dismissal, and parents appeal to the Supreme Court

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• E.F. v. Napoleon Cmty. Schs., 69 IDELR 116 (2017)(Supreme Court Opinion)

At the Supreme Court, focus was on the rights of IDEA students under §504/ADA and whether those rights can be pursued without first going through IDEA due process

“Under E.F.’s existing IEP, a human aide provided E.F. with one-on-one support throughout the day; that two-legged assistance, the school officials thought, rendered Wonder superfluous.”

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Court—Just because a student wants relief from a school does not mean they must exhaust remedies under IDEA

“The IDEA’s administrative procedures test whether a school has met [the FAPE] obligation—and so center on the Act’s FAPE requirement…. For that reason, §1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education.” 51

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Court—Look to the “graveman” (underlying basis) rather than the language of the complaint

IDEA “requires exhaustion when the gravemenof a complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way.”

So, how does one ascertain the “graveman” of a complaint?

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“One clue…can come from asking a pair ofhypothetical questions.

First, could the plaintiff have brought essentiallythe same claim if the alleged conduct had occurredat a public facility that was not a school— say, apublic theater or library?

And second, could an adult at the school—say, anemployee or visitor—have pressed essentially thesame grievance?”

If answers are yes, the gravemen is not FAPE53


Another clue, says the Court, is if there ishistory of the parents previously invoking theIDEA remedies to address the dispute

This is also an indicator that the dispute isFAPE-based, and thus, requires exhaustion

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The Court applies the test to two examples:

A wheelchair-bound child sues his school for discrimination under ADA (again, without alleging denial of a FAPE) because the building lacks access ramps. RESULT?

A student with a learning disability sues his school under ADA for failing to provide remedial tutoring in mathematics. RESULT?

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A wheelchair-bound child sues his school for discrimination under ADA (again, without alleging denial of a FAPE) because the building lacks access ramps.

Result—Not a FAPE complaint, not subject to exhaustion, could have been raised by a non-student or against another public facility

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A student with a learning disability sues his school under ADA for failing to provide remedial tutoring in mathematics

Result—FAPE-based complaint, requires exhaustion of IDEA remedies, could not have been raised by a non-student or against another type of public facilituy

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Thus, the Court reverses the lower courtdecisions and remands the case back to themfor a decision based on its new analysis

(Case has now been sent back to the District Courtfor reconsideration based on Supreme Court’sanalysis (See Endrew F. v. Douglas County Sch.Dist. RE-1, 117 LRP 31173 (10th Cir. 2017)))

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Question—Is every IDEA due process hearing request really based on an allegation of denial of FAPE? What about challenges to a manifestation determination in a discipline placement dispute? To failure to evaluate?...

Question—Do not the IDEA regulations require the IEP to include modifications needed for participation in nonacademic activities, even if not needed for FAPE? (See34 C.F.R. §300.320(a)(4)(ii))

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Question—With respect to the §504 claim, does not the provision of an appropriate IEP equal compliance with §504 requirements? If so, why would a §504 claim be viable in this case?

Question—What if the ADA/§504 relief requested conflicts with the IEP’s efforts to provide a FAPE under IDEA? Would that not implicate the FAPE requirement? Which law and purpose would prevail?

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Practical “Takeaways” from E.F.

§ More plaintiffs seeking money damages under the disabilities laws will try to go straight to federal court

This ramification of E.F./Fry will lead to more intensive litigation on the exhaustion of administrative remedies question

Attorneys will try various ways to “draft around” what may really be an IDEA claim


§ For the IDEA-eligible student, requests for services, devices, or notice of use of a service animal should go to through the IEP team first

For students with communication needs, since the duty to consider effective communication is ongoing, IEP team should discuss effective communication in annual IEP meetings

Team should document if the requested item is needed for FAPE or for ADA/§504 access



If required for FAPE, add to the IEP

If not needed for FAPE, but required under ADA/§504, and no conflict with FAPE, ensure school provides the requested item

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If the provision of a requested ADA/§504 item would conflict with FAPE, consult attorney:

• Prior written notice informing parents of FAPE conflict areas?

• Refusal on basis of “fundamental alteration”?• Other options?



If the provision of a requested ADA/§504 item would conflict with FAPE, IEP team should carefully document in detail how the item would undermine implementation of the IEP and provision of a FAPE


§ Ensure your district understands that even if the IEP contains everything required for FAPE, ADA and §504 might require more

E.g., school may have to provide an intensive communication program (such as CART) to an IDEA student, even if he is performing well in his classes and on his IEP goals, due to ADA effective communication requirements

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