Do we have a new standard for FAPE?

As you know by now, the Supreme Court has decided a case that clarifies the meaning of the term “free appropriate public education”—FAPE.  It was a unanimous decision, written by the Chief Justice.  Many have proclaimed that the Court has set a new, higher standard that schools will have to satisfy.  In certain parts of the country, that’s true. But not here. Let me explain.

The original FAPE decision was the Rowley case decided 35 years ago.  In that case SCOTUS held that Amy Rowley was not entitled to the best possible education, but only one that was “reasonably calculated” to enable her to receive “some educational benefit.”

That’s a very vague standard, and courts have struggled with it ever since. Different Circuit Courts have adopted different standards, leading to inconsistency across the country. That’s why the SCOTUS decided to take up a case from Colorado involving a student with autism named Endrew F.

Amy Rowley and Endrew F. are very different kinds of students.  Amy was hearing impaired, very bright, and served in the general education classroom. She was expected to achieve at grade level, and she did. In fact, she was in the upper half of her class.  The Supreme Court noted that Amy was moving along from grade to grade, right on time. Therefore, the Court reasoned, she was receiving “some educational benefit.”   Importantly, the Court limited its ruling to the specific facts of the case before it.  It left to another day a decision about what “some educational benefit” means for kids who are not served in the general education classroom.

That would be Endrew.  Endrew is not on grade level and likely never will be.   What does “some educational benefit” mean for a student like Endrew?  The 10th Circuit, relying on a prior opinion written by Judge Neil Gorsuch, said that FAPE required a level of benefit that was “merely more than de minimis.”  That means just a tad more than an insignificant amount. That’s a pretty low bar.

In fact, it is too low according to the Supreme Court.  The Court said that FAPE requires a level of services that are “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”

So the Supreme Court has rejected the 10th Circuit’s view of FAPE for the lower functioning student, but not the 5th Circuit’s.  The 5th Circuit never has adopted a “merely more than de minimis” standard. Instead, we have the case of Cypress Fairbanks ISD v. Michael F., which establishes a four-part test for FAPE.  Our courts and hearing officers have applied that test since 1997 when Michael F. was decided. The 5th Circuit said that an IEP must 1) be individualized on the basis of the student’s assessment and performance; 2) be administered in the least restrictive environment; 3) include services that are provided in a coordinated and collaborative manner by the key stakeholders; and 4) produce positive academic and non-academic benefits.

The bottom line on the Endrew case for Texas educators is that it is consistent with the standard we have been using since 1997.   In particular the first part of the 5th Circuit’s test (“individualized on the basis of assessment and performance”) is consistent with the Supreme Court’s language (“…make progress appropriate in light of the child’s circumstances”).   ARD Committees should continue to focus on the four-part test, asking themselves: in light of this child’s circumstances, including the data we have regarding the student’s assessment and performance, is this IEP likely to enable the student to make an appropriate amount of progress?

The case of Endrew F. v. Douglas County School District RE-1 was decided by the U.S. Supreme Court on March 22, 2017.


File this one under: SPECIAL EDUCATION

Tomorrow: nitpicking over the length of the blade on a knife.