Thirty five years ago, in Board of Education of Hendricks Hudson District v. Rowley, the Supreme Court ruled that, under the Individuals with Disabilities Education Act, schools must provide students with an individualized education plan (IEP) “reasonably calculated to enable the child to receive educational benefits.” Last week, the Supreme Court revisited that standard in Endrew F. v. Douglas County School District and ruled that “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
The Court in Endrew F., to resolve the dispute below (summarized in this alert) and provide further guidance on the free and appropriate public education (FAPE) standard, looked to the text of the IDEA. The IDEA requires that the IEP “describe the special education and related services … that will be provided so that the child may advance appropriately toward attaining annual goals and, when possible, be involved in and make progress in the general education curriculum.”
The Court agreed with Rowley that for students included in general education classes, FAPE requires an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” But the Court also acknowledged that this standard was not reasonable for all children with disabilities, and for children not included in general education classes, the “educational program must be appropriately ambitious in light of [the child’s] circumstances.”
The standard endorsed by the Court is more rigorous that the one used by the 10th Circuit: “some educational benefit,” meaning “merely more than de minimis.” But the Court also rejected the parents’ proposed standard: “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”
The Court’s standard continues to recognize that an IEP is forward looking; thus it must be “reasonably calculated” to provide appropriate educational benefit, but it does not guarantee any particular outcome. And given the wide spectrum of children with disabilities covered by the IDEA, the Court declined “to elaborate on what ‘appropriate’ progress will look like from case to case.” The standard also continues to give deference to the expertise and judgment of school authorities.
What does this mean here in the Seventh Circuit? The standard the Seventh Circuit has used is that, to be sufficient, the IEP must be “likely to produce progress, not regression or trivial educational advancement.” Alex R. v. Forrestville Valley Cmty. Unit Sch. Dist. #221. And the Seventh Circuit has recognized that the “requisite degree of reasonable, likely progress varies, depending on the student’s abilities.” This standard and the one articulated by the Supreme Court in Endrew F. appear quite similar. Future cases will provide additional guidance. Because IEP goals set out what the team believes is appropriate progress given the student’s circumstances, we anticipate increased focus on accurate present levels of performance, ambitious and realistic annual goals, and thorough progress monitoring.