by Maureen Anichini Lemon (Spring 2017)

In a unanimous decision, the U.S. Supreme Court recently clarified the Rowley standard to which school districts are held in providing a free appropriate public education (FAPE) to students with a disability. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). In its 1982 decision Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), the U.S. Supreme Court affirmed that the Individuals with Disabilities Education Act (IDEA) guarantees a substantively adequate program of education to children with disabilities. Recognizing that the educational benefits may differ from child to child, the Rowley court had declined to establish any one test to determine the substantive adequacy of educational benefits to achieve FAPE.

In the 35 years since the Rowley, decision, most courts have followed what is known as the “Rowley standard,” based on the following statement found in that decision: an individualized education plan (IEP) has to be “reasonably calculated” to provide educational benefits. Such benefits do not have to be maximized; a school does not have to offer a Cadillac of educational services when a Chevrolet will do. (See, Doe v. Board of Education of Tullahoma City Schools, 9 F.3d 455 (6th Cir. 1993), cert. denied, 511 U.S. 1108 (1994)). Courts in several jurisdictions, including the Tenth Circuit, have interpreted the Rowley standard to require educational progress that is simply “more than de minimis.”

The Endrew F case represents the first time that the U.S. Supreme Court has clarified the Rowley standard. In doing so, the Court rejected the notion that a child’s progress needs only be “more than de minimis ” to provide FAPE.

Endrew, a child with autism, attended school in the Douglas County School District in Colorado from preschool through the fourth grade. While a student in the school district, Endrew received services under an IEP prepared by the school district to address his academic and functional needs. While he was in fourth grade, his parents believed that his academic and functional progress had stalled. When the school district proposed a fifth grade IEP with substantially the same goals as Endrew’s previous IEPs, his parents unilaterally enrolled him in a private school specializing in educating children with autism.

The private school developed a behavioral intervention plan to address Endrew’s most problematic behaviors. The school also developed more ambitious IEP goals for him. After a few months at the private school, Endrew’s behavior improved significantly, allowing him to make academic progress that he had not been able to make in the public school.

Endrew’s parents filed a due process complaint seeking reimbursement for Endrew’s private school tuition. They alleged that the public school’s proposed IEP was a denial of FAPE because it was not reasonably calculated to enable Endrew to receive educational benefits. The state hearing officer disagreed. On appeal, the district court and Tenth Circuit Court of Appeals also disagreed with the parents, finding that the public school had offered FAPE to Endrew. While they acknowledged that his performance under past IEPs did not reveal immense educational growth, he did demonstrate “at least, minimal progress.” Relying on their past interpretation of the Rowley standard, these courts ruled that Endrew’s IEP was adequate because it was calculated to confer an educational benefit that was “more than de minimis.”

The U.S. Supreme Court reversed the lower court rulings, rejecting the argument that an educational benefit that is merely more than de minimis satisfies the Rowley standard. While the IDEA cannot and does not promise any particular educational outcome, the Court held that a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. For a child who is fully integrated in the regular classroom, the level of instruction should be reasonably calculated to permit the student to advance through the general curriculum. For a child who is not fully integrated in the regular classroom, the standard must be more demanding that the “merely more than de minimis” test utilized in the Tenth Circuit.

In establishing Endrew F.’s standard that a child’s IEP be reasonably calculated to enable the child to make progress appropriate in light of their circumstances, the Court rejected the parents’ request for an even higher standard. The parents sought a ruling that an IEP must provide opportunities to allow a child with a disability “to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” The Court rejected this higher standard, believing that it would present an unworkable standard requiring impossible measurements and comparisons. The Endrew F. Court reaffirmed that the IDEA does not require school districts to maximize each disabled child’s potential.

While the Endrew F. decision establishes a new, higher standard for FAPE than the standard previously espoused by the Tenth Circuit, it is not a new or higher standard for the 7th Circuit Court of Appeals that governs cases in Illinois. The Seventh Circuit’s prior interpretation of the Rowley standard was consistent with the U.S. Supreme Court’s Endrew F. standard. In Alex R. ex rel. Beth R. v. Forrestville Valley CUSD #221, 375 F.3d 603 (Seventh Cir. 2004), the Seventh Circuit interpreted the Rowley standard to require reasonable progress, not trivial educational advancement. The Alex R. court noted that what constitutes reasonable progress varies depending on the individual student’s abilities.

In summary, the “some benefit” standard of Rowley is to be measured in relative terms (appropriate in light of the student’s individual circumstances) rather than in absolute terms (some, rather than none). As long as Illinois school districts continue to consider the nature and severity of a child’s disability, and propose reasonable, measurable goals calculated to allow the student to make reasonable (not trivial) progress, they will meet the substantive Rowley standard used to determine FAPE.