Special education advocates were excited with last March’s Supreme Court ruling on Endrew F. v. Douglas County School District and its determination that students must make “appropriately ambitious” progress in their special education programs under the Individuals with Disabilities Education Act (IDEA). Cases are now coming up that will hopefully begin to flesh out the pararmeters of Endrew F and give more defintion to the term "meaningful progress". The Rowley case, which was decided in 1982, provided some guidance on what constitutes progress, but Endrew further refines it and raises the standards of special education for students. This past October, referencing the Endrew case, the Supreme Court remanded a special education case (E.F. v. Newport Mesa Unified School District) back to the lower court not because of the arguments in the case put forth by the parents, but because the Supreme Court wanted the district court to reconsider the case using the new Endrew standard.
Rowley addressed the needs of special education students who were fully included in general education classes. The Rowley court stated that a child’s educational program must be “reasonably calculated to enable the child to receive educational benefits.” For children fully integrated in the regular classroom, as was Amy Rowley, the program should enable the child to achieve passing marks and advance from grade to grade. According to the Court, Amy Rowley met this standard as she was doing better than the average student in regular education classes.
In Endrew, the student had autism and severe behavioral issues that necessitated his placement outside the general education classroom. His parents, frustrated by his lack of progress in his program, withdrew him from his public education program and enrolled him in a specialized private program where he clearly progressed. In delivering the Court’s decision, Chief Justice Roberts argued that the Rowley standard did not apply to Endrew. Wrote Chief Justice Roberts, “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.” Chief Justice Roberts continued, “When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year' can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly. . . awaiting the time when they were old enough to drop out.’”
The case remanded last month to its district court, E.F. v. Newport Masa Unified, is a California case that had been decided by the 9th Circuit. In it, the parents of a kindergartener with autism claimed that the district failed to provide FAPE to their child by refusing to do a high-tech AT evaluation even though he was failing to progress with the use of low-tech devices, such as a PEC system or communication books. The district defended the lack of an AT evaluation because the child was making “some progress” toward meeting his speech and language goals without use of high tech. Perhaps it is this language that the Supreme Court focused on in vacating and remanding the case back to the district court. De minimis progress was insufficient.
Unfortunately, the Supreme Court refused to hear other special education cases this past month, including a disturbing case regarding a teacher’s use of excessive force. However, it is very exciting that the Supreme Court has indicated that students with disabilities need to be challenged and is willing to return cases to a lower court for review using the Endrew standard. It will be interesting to see how the 9th Circuit rules in its re-examination of Mesa. The return of the case shows the Supreme Court’s interest in raising the achievement bar for our students.
