Endrew at Nine: What Has It Changed?
In March 2017 the Supreme Court of the United States handed down a unanimous decision in Endrew F v. Douglas County School District. Chief Justice Roberts’ opinion in Endrew was the first time in 35 years that the Supreme Court had addressed the meaning of a “free appropriate public education” (FAPE) under the Individuals with Disabilities Education Act. And for students whose “progress” through education was not measured in the same manner as students generally in regular education, Endrew was the first time the Court has spoken to what FAPE meant for many special education students.
Endrew was widely viewed as upping the ante from the Court’s previous effort in Rowley v. Board of Education, 485 U.S. 176 (1982). The Court, however, viewed itself as coloring entirely within the lines laid down by Rowley. It overturned the Tenth Circuit’s misinterpretation of that case, and then innovated a new vocabulary for FAPE analysis that declined to follow any circuit’s efforts to apply Rowley to cases like Endrew’s. The Court:
- Required each IEP to call for progress to be viewed in light of the student’s “circumstances.” This is an explicit reference, in part, to the inevitable limitations implicit in the very word “disability.”
- Clearly identified the student’s perceived potential as one such circumstance. This is clear direction to account for each student’s strengths and skills, and an implicit endorsement of use of IDEA to address the needs of “twice exceptional” students.
- Described what was “appropriate” as goals that were “ambitious” for the student — and stated that objectives should be as “challenging” for a student with disabilities as they would be for students in regular education. This is the first Supreme Court articulation of an explicit equity concept under IDEA.
- Re-iterated that the ultimate question was whether an IEP was “reasonable, not whether the court regards it as ideal.”
- Expressly reaffirmed that courts should give “deference” to sound educational judgments and not become embroiled in pedagogical debates, nor begin creating a federal “common law of public education.”
- And yet, qualified deference by requiring school positions to be “cogent” and well-explained. In other words, deference is earned with good thinking and good practice, not just given to school officials automatically.
- Acknowledged that IEPs are forward-looking plans. Like all such plans an IEP’s goals may or may not be met. Goals should neither be unrealistic nor ones that are virtually guaranteed. As Endrew endorses “challenging” students, this necessarily means progress will sometimes fall short of the goal. But not quite meeting a challenging or ambitious goal is different from not making any real progress.
We are now nine years into implementing Endrew. How has it gone?
First, as one might have predicted, some advocates insist that goals not met are automatically evidence of failure to meet FAPE. That is simply untrue. But when goals go unmet, it is important to document any progress that was made; whether the goal can be restated; whether external factors (e.g., medical complications) intervened; and whether changes in educational strategy are warranted to improve progress. The grace schools may receive on meeting goals is real, but it is conditioned on continuing to have “ambition” for each child’s education, documenting achievements that are made, and reflecting seriously on how to improve situations that may seem at risk of stagnating.
Second, several reviews in the wake of Endrew have found little change in the pattern of lower courts’ ruling primarily in favor of school districts in IDEA disputes. This is not surprising, though it may reflect some courts not fully taking on board Endrew’s break with previous law. There is certainly evidence that some circuits that never participated in the Tenth Circuit’s low-balling approach to FAPE have not fully adapted to the new thinking represented in Endrew. Whatever the causes, the hopes and fears parties had for a dramatic increase in rulings in favor of parents have not been realized.
Third, fears of dramatic increases in parents disputing IEPs or IEP implementation are also not really in evidence in Colorado. Clearly, COVID, the impact of electronics on youth, and the dramatic push-and-pull in the last three federal administrations may have created a distortion field that makes identifying impacts of one court decision, however important it seemed at the time, problematic. But we remain a state where disputes over IEPs are happily low and many of those are successfully resolved in negotiation or mediation.
Fourth, more than anything Endrew has given us a common vocabulary for approaching IEPs. And that vocabulary fits better with what parents want to hear (that educators have real ambitions for their children), than previous approaches. IEP meetings in which the Tenth Circuit standard was trotted out explicitly often felt like reading a sign saying: “Abandon Hope, All Ye Who Enter Here.” To the extent the Endrew standard seems more conducive to parent demands, the conversation created by Endrew (where educators have listened to the Court talking about ambitious goals and challenging objectives) is the opposite: more inviting to agreement.
One might conclude: the more things change, the more they stay the same. But Endrew marks a new way of talking about IEPs and if it taken seriously it sets a positive framework for IEP discussions. If that can translate into a positive tone in IEP meetings, leaving Colorado dispute rates low, while everyone focuses on what ambitions we should have for, and which challenges we should present to, students with disabilities, the change, though perhaps subtle, will be most welcome.