November 14, 2017
by Dan Ahearn
Introduction. In the world of special education law, there are constant subtle and significant legal developments that impact the education of students with disabilities. This blog is designed to highlight significant changes and trends concerning the education of students with learning disabilities. Within that framework, there are two recent court decisions worthy of attention.
Endrew F. v. Douglas County School District, 580 U.S. ___ (2017). On March 22, 2017, the United States Supreme Court issued the Endrew F. decision. For the first time in decades, the Court addressed the issue of what level of education is “appropriate” under the Individuals with Disabilities Education Act. For context, the Supreme Court initially addressed this issue in 1982 in the leading case of Hendrick Hudson School District v. Rowley, 458 U.S. 176 (1982).
In Rowley, the Court determined that a student received an “appropriate” education if that student received an educational program reasonably calculated to enable the student to receive “some educational benefit.” The Court further noted that students are not entitled to maximize their education. Since the Rowley decision, federal courts have further refined that standard. Some courts have held that a student receives “educational benefit” if the school district provides some minimal educational benefit, while other courts have opined that the student must receive meaningful educational benefit from their education. Given the varying interpretations, the Supreme Court elected to hear the Endrew F. case.
In Endrew F., the Court emphasized that an educational program must be more than de minimus (minimal). “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 Court noted specifically that the IDEA demands more than a minimal education. “It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Finally, the Court concluded by stating that, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”
Based on this decision, there is now increased, though not precise, clarity on the level of an “appropriate” education. It is not the maximum education possible for the student nor is it a de minimus, or minimal, level of education for the student. Rather, a middle ground exists where a student is entitled to make reasonable progress. For children with learning disabilities, there will need to be an individualized inquiry that examines their “unique circumstances” and an assessment of what level of education constitutes reasonable progress. In some states, the concept of “reasonable progress” will exceed an existing standard of minimal progress; in other states, the change in the law may not be as significant. Regardless, the Supreme Court sent a clear message that the IDEA requires a meaningful education and that anything less than reasonable progress will not be tolerated legally.
Doe v. Cape Elizabeth School District, 832 F.3d 69 (1st Cir. 2016). In a case involving an 8th grade student, the Court of Appeals for the First Circuit examined whether a student with a very strong academic record could, nonetheless, be found to have a specific learning disability and therefore be found eligible for services under the IDEA. Although found initially eligible for special education services due to a specific learning disability, the Team eventually ended the student’s eligibility because she was achieving in all academic areas and a series of test scores were strong. Arguing that new testing that focused on reading fluency showed continued weakness in fluency, the student contested the finding of no eligibility at both the administrative hearing level and the federal District Court level; she lost at both levels and appealed to the Court of Appeals.
The Court of Appeals addressed whether a deficiency in reading fluency alone can support a finding of eligibility as linked to a specific learning disability. The Court decided that the lower court committed an error by not focusing more heavily on the issue of fluency as part of the student’s overall academic performance. The Court also directed the lower court to examine whether standard testing measures and assessments appropriately reflected the student’s reading fluency.
In other words, although the tests administered to the student displayed strong scores and her grades were in the A range, the Court emphasized that there must be a deeper inquiry as to whether those tests and grades appropriately assessed and quantified her reading fluency skills. In addition, other tests that did focus on fluency and indicated weakened fluency skills needed to be considered more fully as part of the whole picture analysis of the student’s needs. Echoing language in the Endrew F. case noted above, the Court of Appeals also stated the need for a case by case inquiry into the “unique circumstances” of the student. In essence, the Doe case indicates that, with sufficient evidence, a child with a deficiency in reading fluency may be found eligible for IDEA services as having a specific learning disability even when that student displays a very strong academic record.
Conclusion. Taken together and in the context of students with specific learning disabilities, the Endrew F. and Doe cases indicate that, moving forward, there will be increased scrutiny on the following points: 1) whether IEP Teams are ensuring that an individualized inquiry into a student’s unique circumstances occurs; 2) whether that inquiry represents a holistic inquiry into the student’s specific learning disability; 3) and whether the student will ultimately receive an education that provides reasonable educational progress for the student.
Dan Ahearn is an educator and attorney. He has a B.A. from the University of Rochester, an M.A. in Education from Tufts University, and a J.D. from Suffolk University Law School. He is the Assistant Head of School, directs the Landmark Outreach Program, and serves as in-house legal counsel. In addition, he also teaches language arts and social studies, co-teaches the Student Advocates class, and coaches soccer and tennis at Landmark. He has also taught high school social studies and coached track in the Rochester, New York public schools.
