Table of Contents
There are about one hundred sped cases each year that reach the federal court system involving disputes over the IDEA. Typically, these cases center on one or more central issues; and often they involve more than one. Some are about the IDEA. Some are about the ADA/504. Some are about other laws.
The case summaries and links to the actual decisions below are landmark cases establishing important principles of law.
This page was intended to provide an introduction to spedlaw, not to provide definitive interpretations. Wherever possible, we have included links to the decisions themselves which are saved on this website. We have in most cases added additional links to other websites on the Internet for readers wishing to view summaries, expanded analyses, or a discussion of the underlying issues;
The cases below are presented in chronological order, not in order of importance. It is important to remember in reading these cases that while a court may have settled a point of law, it does not necessarily follow that the party prevailing on the legal issue won the lawsuit. To discover that, the reader would need to follow the case back to the lower court to which it was remanded. For example, in the Forest Grove v. T.A. case cited below, the parents won the day in the Supreme Court but ultimately lost their battle for tuition reimbursement in the Ninth Circuit. The technical term for following a case through to its conclusion is called “shepherding.” And it is what we mean when we say “It’s not over until the fat lady sings.”
Since the interpretations and summaries below are not intended to convey legal advice. If you’ve got a real problem, our advice has always been to get a real lawyer.
Riley v. Ambach, Second Circuit, 1980
An early case regarding PL 94-142, wherein the parents had prevailed in a lower court. The circuit court reversed, not on the merits, but because the parents had not exhausted administrative remedies before going to federal court. Important because the precedent has been upheld in a number of decisions since.
The Decision:
Other suggested links regarding “exhaustion of administrative remedies:”
National School Board Association Legal Clips
Exhaustion of administrative remedies
Exhaustion of administrative remedies (a three minute read)
Plyler v. Doe, United States Supreme Court, 1982 (Added May 27, 2018)
Plyler v. Doe was a landmark 14th Amendment decision by the Supreme Court affecting the rights of all public school children, not just children with disabilities. The rights of limited English proficient children speaking English as a second language are enforced by the Education Department’s Office for Civil Rights, the same federal agency regulating and enforcing Section 504 in concert with the Americans with Disabilities Act in both public and post secondary institutions receiving federal funding.
The bottom line is that the Supreme Court in 1982 guaranteed every child, regardless of his or her immigration status, residing in the United States the right to a public education K-12. Lawyers have since argued successfully that anything that might have a chilling effect on that right was also forbidden. For that reason schools are prohibited from asking parents about their immigration status (although not about the first language used in the home), requiring them to produce social security numbers for their children, or even birth certificates if that would unlawfully bar a student from attending. See Information on the Rights of All Children to Enroll in School: Questions and Answers for States, School Districts and Parents, Office for Civil Rights.
However, Secretary Betsy DeVos recently revisited the issue, saying in May, 3028 whether or not to report illegal immigrants was a school decision, a local decision, which is why I am revisiting it here.
Although obviously not everyone agrees with Plyler, it is, Betsy DeVos not withstanding, still good law. It only applies to K-12, and some state legislatures have barred students (what we now call the Dreamers) without citizenship from attending state universities for the same tuition fees as other residents. That, however, does not diminish the effects of Plyler. Secretary DeVos was wrong. Not only do schools not have that option, but neither do states, because the first impact of Plyler was to overturn a 1975 Texas law that sought to bar those students from attending their public schools.
The 1982 decision can be read in its entirety using Justia or Findlaw.
However, there are a number of summaries ranging from the medium short to very long that make easier reading. One of the more authoritative is from UnitedStatesCourts.gov
Access to Education – Rule of law
The American Immigation Council (as might be expected) has a different perspective on Plyler but the facts are the same.
Public Education for Immigrant Students: Understanding Plyler v. Doe.
The second link above also provides a summary of the ways states and public schools have tried to evade the requirements of the Plyler decision. Those two links, however, don’t even scratch the surface.
This Landmark 14th Amedment decision was of course grounded in Constitutional law, but the Court in 1982 also posited some more practical (and even more compelling) concerns, e.g.
The deprivation of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological wellbeing of the individual, and poses an obstacle to individual achievement.
And also:
Even assuming that the net impact of illegal aliens on the economy is negative, charging tuition to undocumented children constitutes an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor is there any merit to the suggestion that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State. Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State’s boundaries and to put their education to productive social or political use within the State.
Still more reference links:
ACLU: School is for Everyone: Celebrating Plyler V. Doe (2012)
National Immigration Law Center: On Plyler v Does 35th Anniversary, This Landmark Supreme Court Decision must be Honored and Protected
Backlash against Secretary DeVoe’s statement:
Astounding Ignorance of the Law (The Washington Post, May 23, 2018)
Betsy DeVos Stirs Uproad by Saying Schools can call ICE (The Huffington Post)
Board of Education v. Rowley, US Supreme Court, 1982
Although Public Law 94-142 was passed in 1975, the first significant case to reach the Supreme Court was the Board of Education v. Rowley in 1982. Rowley v. Hendricks County Board of Education established the standard that would be applied in determining whether or not a district had succeeded in providing a student with FAPE. There are a lot of terms in the IDEA that were basically undefined; this was the first judicial definition of the “appropriate” in “Free Appropriate Public Education.” Basically, FAPE was defined by the court as the provision of some benefit to a child in accordance with the procedural requirements of the IDEA. Although there have been attempts to redefine the meaning of FAPE based on the reauthorization of the IDEA by Congress, the Rowley decision continues to be definitive even today. (See Mercer, Ninth Circuit, 2009, below)
The Decision:
Selected Links to the Internet: (We of course assume no responsibility for the content of websites outside of our website. In fact, we don’t take a whole lot of responsibility for the material that IS on our website.)
The Rowley Decision: What Does it Mean?
IMPORTANT NOTE: The Roqlwy decision (1982) established a standard for FAPE. This “standard,” however, had been interpreted very differently by the circuits, the Tenth notably ruling that the schools only had to establish that a child had receive something more than “de minimus” (nothing) to meet the federal reqiuirement. After 35 years and nothing the split in the circuits, the SC again revisited its interpretatioin of the FAPE requirement in Endrew, 2017. Endrew did not overturn Rowley but “clarified” the meaning of the court in that ruling. See Endrew below for the decision and additional llinks to authoritative commentary.
Irving v. Tatro, US Supreme Court, 1984
Established as a point of law that unless a medical service needed by a child to receive FAPE, it must be provided by a physician, it must be provided by the school system.
The Decision:
IRVING INDEPENDENT SCHOOL DISTRICT
Other suggested links:
Burlington v. Massachusetts, Supreme Court, 1985
Another early Supreme Court case establishing the right of parents to seek tuition reimbursement for a private school placement if they proved the school had not provided FAPE whereas their placement did provide FAPE.
The Decision:
Other suggested links:
Special Education Advisor: Burlington
Honig v. Doe, US Supreme Court, 1988
Held that if a child with a disability was suspended for more than ten consecutive days or for more than ten days cumulative when the constituted a change of placement, the school could not suspend him if the behavior was a manifestation of his disability. Subsequently incorporated into the IDEA as a federal regulation, the Office for Civil Rights has held that the decision applies to students eligible under ADA/504 as well. The difference is that under the IDEA services must be provided even if the change was not a manifestation; children only eligible under 504 would not be entitled to services if the behavior was not a manifestation.
The Decision:
Suggested Links:
OSEP Letter on Manifestation Determinations
Timothy W. v Rochester NH, First Circuit, 1989
A school system argued that a mentally retarded (intellectually disabled) child could not profit from special education, so it should not have to serve that child. The court applied a literal interpretation of federal spedlaw and found for the parents, saying that every child without exception was entitled to FAPE.
The Decision:
TimothyW vs Rochester – appeal (1989)
Other suggested links::
Slideshow on Timothy WV v. Rochester 1985
Buckhannon Board v. West Virginia Department of Health, U.S. Supreme Court 2001
This decsion established broad guidelines for the awarding of attorney fees in spedlaw cases. Prior to this decision, parent attorneys had been successfully arguing that without their involvement school systems would not have provided IEPs that provided significantly more services than the school system would have initially offered. This was based on what was popularly known as “the catalyst theory.”
What “did in” the catalyst theory, however, wasn’t Congress, but a this Supreme Court decision in 2001, Buckhannon Board v. West Virginia. This landmark decision limited parents’ right to obtain attorney fees to those cases where they actually prevailed in a hearing or court case (or other situations where a settlement could be enforced by a court). It’s worth noting that it had a somewhat chilling effect on parents’ ability to obtain legal representation on a contingency basis. It also meant and means parents are unable to obtain legal representation on contingency for IEP team meetings or mediation meetings — putting them on an unequal footing with schools who have attorneys at their disposal prior to any such meetings even when not in actual attendance. Also, even though Buckhannon settled one issue, it raised a whole lot of additional questions making its application much more complicated than it seems. For a discussion of its implications that only a lawyer could love, see “The Effect of Buckhannon on the Awarding of Attorney Fees” in Touro Law Review. Complexity adds uncertainty, and when it comes to getting paid, attorneys are no different than the rest of us . . . when it comes to getting paid, uncertainty is not a welcome factor. So even though Congress has given the parents of children with disabilities every due process right known to man, and even though it invented some new ones, parents without the financial wherewithal to hire an attorney to help them exercise those rights are at a serious disadvantage.
Some schools, it has been alleged, have been especially diligent in exploiting the potential advantages available when the spirit of the law is disregarded while the letter of the law is being observed. For example, schools and parents are prohibited from bringing an attorney to a settlement meeting prior to a due process hearing, but there is nothing in the law that would prevent a school from having an attorney in a nearby room, taking breaks and consulting with that attorney, or even taking a break and having an attorney draft a proposed settlement.
School psychologists are unlikely to need detailed knowledge of Buckhannon and its aftermath, but for readers interested in pursing this iissue further there are a multitude of on-line resources. A few are listed below.
COPAA: Parents Should Receive Attorney Fees When Settle
Is Catalyst Theory of Attorney Fees Still Alive
Rafael Oberti v. Borough of Clementon, Third Circuit, 1993
The parents in this case wanted their child in a regular education class, not segregated in a special education classroom. They argued successfully that the school system had failed to provide their son with FAPE and that the reason for his misbehavior was as a direct result of their failure to consistently provide him with the modifications he needed. The Third Circuit agreed. Many of the principles established in this case have been accepted generally. One principle that was overturned was the court’s conclusion that the burden of proof to show that their program did provide FAPE was on the school system. The Supreme Court later ruled that the burden of proof was on whomever was bringing the lawsuit.
The Decision:
Oberti v Clementon Third Circuit 1993
Other suggested links:
Review of the case by the law firm representing the Obertis
Florence Cty v. Carter, Supreme Court, 1993
By the time this case had reached the Supreme Court, it seemed the more substantive issues had been resolved. No one at this point in time was seriously challenging the parents’ contention that their child had been denied a meaningful special education (FAPE). What was being disputed here was whether the school was obliged to pay her private school tuition. They claimed that the school she was attending was not an approved state school provider of sped. The Catch 22 was that schools were approved on a case by case basis when requested by a school system. The parents, not the school system, had placed the student in that setting. In short, the Supreme Court established a two part test for tuition reimbursement. (1) That the school’s program failed to provide FAPE. (2) That the parents’ program did provide the student with benefit. State approval was not required. Finding: for the parents. Also a major reason for one of our aphorisms, “When a school system thinks it has found a loophole in spedlaw, more often than not it turns out to be a hangman’s noose.” (See Forest Grove v. T.A. below for another example.) For lower court decisions as well as a more thorough analysis, the best source for that information is Wrightslaw.com as Peter Wright was the parent attorney.
The Decision:
Other suggested links:
Extensive resource on the case on Wrightslaw
Light v. Parkway, 8th Circuit, 1994
This case established a two part test for removing a child from one learning environment to another learning environment because he or she posed a danger to other children. (1) There must be evidence that the child did in fact pose a danger to others; and (2) that the school had provided the student with reasonable accommodations prior to the change of placement.
The Decision:
Sacramento City School District v. Rachel H. 9th Circuit 1994
kindergarten child mainstreamed 100% of the school day; the school wanted to serve her in resource. When the school refused the parents request, they withdrew her and sued for tuition reimbursement. In short, they won. Legal fees alone for both sides amounted to an estimated 1.2 million dollars. The court established a four factor test, summarized here (but see the decision for further elaboration. (1) What were the educational benefits in the regular classroom (with accommodations)? (2) What were the social benefits that could come from interacting with non sped students? (3) What would be the effect on other students in the class? (4) What would mainstreaming the child cost?
The Decision:
Other suggested links:
Slideshow on Holland v. Sacramento
Sellers v. Manassas, Fourth Circuit, 1998
A lawsuit seeking damages under the IDEA for educational malpractice. The court found that damages were not available for lawsuits brought under the IDEA (but see Mark H. v Hamamoto, 2010, below).
The Decision:
Sellers v Manassas 4th Cir 1998
Also see on this website:
Damages (Myschoolpsychology.com)
Springer v. Fairfax, Fourth Circuit, 1998
This was a dispute over whether or not a student who was socially maladjusted was also emotionally disabled. The court, after systematically reviewing the evidence within the context of the definition of ED in the federal regulations, concluded he was not. Social maladjustment is not sufficient to establish eligibility, but neither is it exclusionary.
The Decision:
Springer v Fairfax Fourth Circuit 1998
Cedar Rapids v. Garret, US Supreme Court, 1999
The Supreme Court ruled that cost was not a legitimate factor to consider in determining whether or not a child must receive those related services needed for him/her to receive a free appropriate public education.
The Decision:
Garret v. Cedar Rapids Supreme Court 1998
Other suggested Internet links:
Houston Independent School District v. Bobby R., Joyce R, and Caius R, Fifth Circuit 2000
Not an important decision in and of itself, but of interest because of the scores the court relied upon to document progress. While most parent and school attorneys agree that standard scores and percentiles are the most defensible way to report scores, this court determined that the school system correctly relied upon grade equivalent (grade level) scores to document that their program had provided the student with some benefit.
The Decision:
Buckhannon Board v. West Virginia Department of Health, US Supreme Court, 2001.
Before this decision, attorneys were still arguing for and getting attorney fees if the court concurred that they had been a catalyst for a school giving parents what they wanted in an IEP team meeting. Not any more.
What “did in” the catalyst theory was a Supreme Court decision in 2001, Buckhannon Board v. West Virginia. This landmark decision limited parents’ right to obtain attorney fees to those cases where they actually prevailed in a hearing or court case (or other situations where a settlement could be enforced by a court). The decision had an unfortunate chilling effect on parents’ ability to obtain legal representation on a contingency basis. Parents therefore are more unlikely to obtain legal representation on contingency for IEP team meetings or mediation meetings — putting them on an unequal footing with schools who have attorneys at their disposal prior to any such meetings even when not in actual attendance. (Some school systems in Vermont allegedly have their attorneys in an adjoining room, where they can go to have settlement offers drafted and then presented to the parents where attorney participation is prohibited by law.) Also, even though Buckhannon settled one issue, it raised a whole lot of additional questions making its application much more complicated than it seems. For a discussion of its implications that only a lawyer could love, see “The Effect of Buckhannon on the Awarding of Attorney Fees” in Touro Law Review. Complexity adds uncertainty, and when it comes to getting paid, attorneys are no different than the rest of us . . . when it comes to getting paid, uncertainty is not a welcome factor. So even though Congress has given the parents of children with disabilities every due process right known to man, and even though it invented some new ones, parents without the financial wherewithal to hire an attorney to help them exercise those rights are at a serious disadvantage.
Shapiro v. Paradise Valley, NInth Circuit, 2003
Not an especially important case, but an especially important principle. If you leave the parents out of an IEP team meeting, it is almost automatically a denial of FAPE under the Rowley standard. In this instance, a deaf child was being transferred into a public school. The public school held an IEP team meeting without the parent and without a rep from her private school. The parents placed the child in a private school setting and sued for tuition reimbursement. What is particularly important is that the district’s defense, that the program it proposed in her IEP,would have provided her with FAPE was not a consideration in the Ninth’s final decision. The procedural violation alone was enough to sour the fruit, as it were. Leave the parent out, do not pass go, go directly to jail (metaphorically speaking.)
The Decision:
Shapiro v Paradise Valley 9th Cir 2003
Also see Doug C., 2013, below
Suggested Links:
Schaffer v. Weast, US Supreme Court, 2008
There had been a split in the circuits as to which party to a special educational dispute bore the burden of proof. Some said the parents. Others said the school. The Supreme Court ruled that whomever brought the lawsuit was the party bearing the burden of proof. Cautionary note: Several states, e.g., New Jersey, have passed state statutes that put the burden of proof on the school system, whoever the challenging party might be. Check your state statute before citing this case as binding precedent.
The Decision:
Suggested Internet links:
Massachusetts Education Department Advisory Letter on Shaffer v. Weast
NEA Review of Shaffer v. Weast
City of Rancho Palos Verde v. Abrams, Supreme Court, 2005
NOT a spedlaw case. However, the principle set forth in this decision had some ramifications for special educators, because it precluded damages under Section 1983 when another law provided a comprehensive remedial scheme. That would also apply to the IDEA and FERPA. However, unfortunately for school administrators, it would not apply to lawsuits under the ADA/504 seeking damages and punitive damages for an alleged offense based on alleged deliberate indifference. (See Mark H. v. Hamamoto, below.)
The Decision:
Rancho Palos v Abram Supreme Court 2005
Other suggested links:
Wikepedia article on Rancho_Palos_Verdes v. Abrams
Arlington v. Murphy, Supreme Court, 2004
Another example where a seemingly simple question about the law required someone to pay a whole lot of money to get an extremely simple answer. The question here was, “Are parents entitled to reimbursement of expert witness fees if they are the prevailing parties in a special education lawsuit. The court’s answer was “No.” They did a lot of explaining, but the answer was still “No.”
The Decision (without dissents or appendices):
ARLINGTON v Murphy Supreme Court 2006
Suggested Links:
J.L. v. Mercer Island, Ninth Circuit, 2009
This case is primarily important because the Ninth Circuit overturned a lower court decision in 2006 that greatly expanded the definition of FAPE above and beyond what had been required by the Supreme Court in 1982. That district court decision had given hope to parents that they could successfully argue a higher standard in determining whether or not their child had received FAPE in tuition reimbursement cases. The Ninth Circuit’s decision, if it didn’t exactly smash that dream, at the very least put it on hold.
The Decision:
Winkelman v. Parma City, U.S. Supreme Court, 2007
Editorial Note; With attorneys frequently charging $300 an hour for their services, this appeared to be a great parent for parent advocates. However, this reviewer has not seen a single spedlaw case since that has gone to a district or circuit court where the parents were not represented by an attorney. Additionally, with respect to this specific litigation, in compliance with the court’s order, the parents were represented by an attorney, albeit on a contingency basis. Ultimately, upon re-hearing the case on its merits, the Sixth Circuit upheld the decision of the ALJ and district court in 2005 upholding that decision denying the Winkelmans tuition reimbursement for a unilateral private school placement. While considered a landmark decision for parents’ rights, the actual impact on spedlaw litigation appears to have been slight.
Parents, even if they are not attorneys, may represent the interests of their child in a spedlaw case in court. Finding: for the parents.
Parents may seek to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child.
The Decision:
Winkeleman v Parma Supreme Court 2007
Other suggested links:
In Depth Analysis: Parent and Family Rights
Newspaper report on parent’s joy over decision
Forest Grove v. T.A., Supreme Court, 2009
Argued before the district court twice, the circuit court twice, and the Supreme Court once, this case was about a relatively arcane point of law. Decided: parents did not have to give their school’s proposed program a trial if it was clearly inappropriate in order to have the right to sue for tuition reimbursement
The Decision:.
Forest Grove v. T.A. Supreme Court
Also see: Our discussion of Forest City
Mark H. v. Hamamoto Ninth Circuit, 2010
A number of courts had ruled that damages and punitive damages for sped violations were not available under the IDEA or Section 1983 of the Civil Rights Act. However, as in this case, the courts made school districts liable if the parents could prove that those school administrators had been deliberately indifferent to the potentially negative impact their failure to provide due process rights to disabled children and their parents. Although there have as of yet still only been a small number of those cases, they should be of concern to any school administrator seeking to shortcut the rights of children or a child with disabilities.
The Decision:
Mark H v Hamamoto 9th Circuit 2010
Other Suggested Links:
Wrightslaw analysis of Mark H. decision
American Bar Association discusses 504, ADA, and damages–New Look
Doug C. v. Hawaii, Ninth Circuit, 2013
To some early reporters of this decision, it appeared that the school system had been caught in a damned if you do, damned if you don’t situation. It wasn’t that simple. The school system was faced with an annual deadline for getting its IEP reviewed. The parent, who wanted to be there, had been ill. After several attempts at rescheduling, the school went ahead and held the meeting anyway. The parent sued. What got left out by some of the early critics was that the school took advantage of the parent’s absence to unilaterally change the child’s placement from a private school back to a program in its own high school. The circuit court ruled that parental rights trumped the convenience of staff members whose attendance needed to be rescheduled and it trumped timelines. It also held that the procedural violation was substantive because if the parent had been there, the outcome of that meeting could have been reasonably assumed to have been different. Finding: for the parent.
The decision: Doug C Ninth Circuit 2013
Other suggested online links:
Wrightslaw analysis of Doug C.
National School Board discussed implications of decision
T.F. v Fox Chapel, Western Pennsylvania District Court, 2013
This is not a landmark case, but it is of interest for a number of reasons. The child in this case had a severe tree nut allergy. The school provided the student with a number of accommodations, but the parents were not satisfied with them. The parents withdrew the child, and the school system filed a truancy complaint. They maintained the complaint even after the parents placed the student in a private school. The parents sued for a number of things, among them tuition reimbursement because they had not provided the child with FAPE and damages based on an allegation of deliberate indifference under Section 504.
The case is instructive because of the two pronged standard applied by the court in considering the latter allegation. In this case, the district court said that proving deliberate indifference would require a finding that 1) FCASD knew that a federally protected right was substantially likely to be violated and 2) FCASD failed to act despite that knowledge. Negligence alone would be insufficient to substantiate that finding. Cutting to the chase, in substantiating a retaliation claim, the judge said that there would have to be some evidence of causality, that is, that the parents’ exercise of their rights was directly linked to the school system’s actions.
In sum, the court found on all counts for the school system. This case is however again instructive in demonstrating that it is never over until the fat lady sings, and the his case is now being appealed to the Circuit. Court.
The case is also somewhat different from other cases we have reviewed given the community support for the parents. There is a Facebook page from a parent organization supporting them; and not one but two organizations, one an organization for people with food allergies (FARE) and the other an attorney’s group, filed an amici brief for which a link is provided below. The parents also apparently made good use of the local media; those aren’t legally relevant but do provide a good non legalistic summary of the parents’ complaint. It should be remembered, however, that these accounts tend to be one sided, as the parents are unencumbered by any restrictions on what they might choose to share; but the schools are very much encumbered by the limitations imposed by FERPA. One example:
Chapel Hill sued for alleged discrimination in food allergy treatment
Every case involves a roll of the dice, so this writer is not about to predict the outcome of the parents’ appeal. However, the brief in this writer’s opinion was also unusual in that the writers appear to have omitted a reference to the specific errors that they thought the judge might have made. So we will be shepherding this case through the legal process, which may take years if the past is prelude to the future.
The Decision:
Other References:
Legal Clips: National School Board Association report on district court ruling
Hall v. Florida, 2014
This Supreme Court decision was about intellectual disability and the death penalty. Briefly, the majority on the court ruled that intellectual disability was a condition, not a number, and that courts in determining eligibility for the death penalty must consider a variety of factors, including adaptive behavior skills, in making their decisions.
The Decision: Hall v Florida 2014
Other References:
Supreme Court rules against Florida in death penalty case
American Prospect: What is cruel and unusual punishment?
Stacy Fry v. Napolean Public Schools, U.S. Supreme Court, February 22, 2017
The Supreme Court in Fry v. Napolean on February 22, 2017 established a comprehensive standard to be applied by the courts in determining whether or not parents needed to exhaust administrative remedies in issues involving FAPE before going to federal court. That’s the current legal standard courts apply in determining whether or not to dismiss a claim or to hear the claim when parents have not exhausted administrative remedies.
Constitutional Law Reporter: Fry v. Nart Decisions and Dpolean: A simpler, reader friendly analysis
Wrightslaw: Fry v. Napolean: A parent friendly review of the case
Endrew F. v Douglas County, Supreme Court, March 22, 2017
Update (belated): The Supreme Court in the decision discussed below remanded a case heard before the Tenth Circuit in 2015 back to the Tenth. Based on the Supreme Court’s decision, the Tenth Circuit remanded the case back to the District Court on August 2, 2017. As of 12/14/2017, the case had not be reheard on the merits.
Link to the Supreme Court decision Endrew v. Douglas County, District Court, 2/12/2018 (20 page)
Providing somewhat more substance to the judicial definition of FAPE, this decision is important especially to parents seeking tuition reimbursement for a parentally placed student with a disability in a private school setting. That is because the standard for successfully suing requires parents, as the party challenging the status quo, to (1) prove that the school’s IEP or proposed IEP was unlikely to provide their child with FAPE; and (2) that the placement they selected did provide the child with the equivalent of FAPE.
This decision was greeted with an immediate and enthusiastic response from the community serving children with disabilities. Unfortunately, much of the initial hoopla has implied that by defining FAPE as requiring at least a reasonable expectation of meaningful benefit that the Supreme Court’s decision will have a transformative effect on our children’s rights nationwide. Not necessarily so, although the proof of the pudding is always in the eating . . . and in this case, it will be the federal judges charged with applying this revised standard who will be providing the definitive interpretations.
Much in fact stays the same. In the Second and Sixth Circuits, no change whatsoever can be expected as they’ve consistently interpreted both Rowley and the IDEA as requiring something more than non trivial benefit or (as in the Tenth) “merely something more than de minimus benefit.”
Rowley in 1982 established that FAPE might require the Ford but never the Cadillac. That remains unchanged. Pushing the analogy further, neither Rowley nor this court ruled out providing a child who was not fully integrated into general ed with a bicycle, if that’s what circumstances dictated. In fact, what Rowley and this court said was that nothing in the IDEA required the Ford or bicycle provided to be as good as the Ford or bicycle provided to general ed kids.
What is FAPE for the goose may not be FAPE for the gander. While the court did suggest that getting passing grades and being advanced from one grade to the next were typical goals for a child with a disability who was fully integrated into the general education program, neither the Rowley court nor this court offered specific guidance with respect to those children who were NOT fully integrated into general education.
The three statements in this 20 page decision most likely to be quoted by parent advocates probably will be:
To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances
and
The goals may differ, but every child should have the chance to meet challenging objectives. This standard is more demanding than the “merely more than de minimis” test applied by the Tenth Circuit. It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.
Nevertheless, while deciding that something more meaningful than “merely something more than de minimus” was required, this court, as the court in Rowley (see below) sought a middle ground.
Endrew’s parents argue that the Act goes even further and requires States to provide children with disabilities educational opportunities that are “substantially equal to the opportunities afforded children without disabilities.” Brief for Petitioner 40. But the lower courts in Rowley adopted a strikingly similar standard, and this Court rejected it in clear terms. Mindful that Congress has not materially changed the statutory definition of a FAPE since Rowley was decided, this Court declines to interpret the FAPE provision in a manner so plainly at odds with the Court’s analysis in that case
The Endrew F. decision runs only 20 pages and is recommended reading in its entirety, For a brief but authoritative summary, however, this writer recommends Justia’s report.
Some early commentators reported that the lower court’s decision regarding Endrew F was reversed. As noted on our Home Page, this was not the case. The Supreme Court only remanded the case back to the Tenth Circuit, where it will probably be reheard by the District Court judge who found against the parents in the first place. Applying a different standard in this or any other case does not guarantee the original decision will be overturned.
Although much was made of the fact that the Supreme Court had rejected an opinion held by Mr. Gorsuch, at the time being vetted for a position on the high court, it was an opinion held in varying degrees by other judges both on the Tenth Circuit court and a number of other courts as well. What is important long term is that the Supreme Court rejected the “merely more than de minimus” standard . . . one small step forward for children with disabilities, but a step forward nevertheless..
As reported above, a number of reporters of this decision have framed it in more glowing terms. For those readers interested in exploring some other interpretations, a number of references follow. Some are more optimistic than the opinions expressed herein, others are not.
Note: Also see OSERS and OSEP Guidance on Endrew issued 12/7/20170
Wrightslaw – a historical context for Endrew (added 12/17/2017)
The Atlantic: How a New Supreme Court Ruling Could Affect Special Education
NPR Ed: The Supreme Court Rules in Favor of a Special Education Student
Education Week School Law: Unanimous Supreme Court Decision Expands Special Education Rights