On December 7, 2017, the U.S. Department of Education (ED) released a question-and-answer document on the Supreme Court’s 2017 opinion in Endrew F. v. Douglas County School District, 580 U.S., 137 S.Ct. 988 (2017) (“Endrew”).  Endrew addressed the Individuals with Disabilities Education Act (IDEA) clarifying the scope of a free appropriate public education (FAPE). The Supreme Court held that in order for a school to meet its substantive obligation under IDEA, it must offer an individualized education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The authors will be presenting on this new guidance and other guidance issued by ED during the Trump Administration on Friday, February 16, 2018, at the National Conference on Education presented by the School Superintendents Association (AASA).

Question-and-Answer Document

The question-and-answer document is ostensibly intended to clarify school districts’ obligations as identified in IDEA and Endrew, although in several respects it also seems to go beyond the Supreme Court’s actual holding in the case, recommending some measures that may not be legally required.  Interestingly, this particular guidance document does not contain preamble language related to how the guidance is non-binding and does not create new requirements, although this type of preamble is typically found in similar guidance documents released by ED. The Trump administration has been critical of its predecessors for allegedly attempting to impose new legal requirements through such non-regulatory guidance.

The Q&A provides the following:

  • Facts, crucial issues, and conclusion in the Endrew decision from the Supreme Court;
  • Identifies how FAPE is defined in IDEA;
  • Statement of the law prior to Endrew regarding the substantive standard for FAPE;
  • Application of Endrew to IDEA cases moving forward;
  • Considerations for implementation of the “reasonably calculated” standard, as identified in Endrew;
  • Practical tips for IEP Teams, including ensuring that every child has the chance to meet challenging objectives and IEP annual goals are appropriately ambitious; and
  • Issues that State Education Agencies (SEA) should consider doing differently as a result of the Endrew

The U.S. Supreme Court specifically did not define “in light of the child’s circumstances,” but ED’s guidance provides that the IEP process needs to ensure that every child has the chance to meet challenging objectives, and IEP teams must keep in mind that the individual needs of each child are essential considerations.

The question-and-answer document confirms that IEPs need not be considered ideal, but in determining whether an IEP is “reasonably calculated” to enable a child to make progress, the IEP Team should consider the following:

  1. The child’s previous rate of academic growth
  2. Whether the child is on track to achieve or exceed grade-level proficiency
  3. Any behaviors interfering with the child’s progress
  4. Additional information and input provided by the child’s parents

To note, this guidance document also uses several undefined terms and isolated statements from the Endrew opinion in ways that may be confusing to administrators, teachers, staff, and parents involved in the IEP process.

 

Husch Blackwell’s Education Team and the Council of the Great City Schools recently was awarded with the Education Law Association’s 2017 “Best Brief” Award for its amicus brief filed in Endrew.

 

Photo of John W. Borkowski John W. Borkowski

Coming from a family of teachers, John knows that educators are dedicated to serving students and society. His lifelong passion for education underlies the insightful counsel he provides to colleges, universities and school districts.

Photo of Demetrius Peterson Demetrius Peterson

Demetrius concentrates his practice on serving educational institutions. He has significant experience advising higher education clients on complex issues relating to Title VI of the Civil Rights Act, Title IX of the Education Amendments, the Rehabilitation Act and the Age Discrimination Act, Title

Demetrius concentrates his practice on serving educational institutions. He has significant experience advising higher education clients on complex issues relating to Title VI of the Civil Rights Act, Title IX of the Education Amendments, the Rehabilitation Act and the Age Discrimination Act, Title II of the Americans with Disabilities Act (ADA) and their implementing regulations.

Photo of Aleks Ostojic Rushing Aleks Ostojic Rushing

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on…

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on investigations, litigation and compliance matters arising from a wide range of civil rights and educational funding issues. These include Title IX, Title IV, the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and the Family Educational Records Privacy Act (FERPA).