Steedman Oral Argument Analysis:  Endrew F. v. Douglas County School District

Endrew F., et al., v. Douglas County School District


On Wednesday, January 11, 2017, Wayne, Cheryl, and Leslie traveled to the Supreme Court to hear oral arguments in the case of Endrew F. v. Douglas County School District.  The Court’s decision in Endrew F. will affect every child with an IEP and every school district in the nation, making it the most important special education case before the Court in 35 years.

Endrew F. is now a 17-year-old young man who has been diagnosed with autism spectrum disorder.  Endrew (known as “Drew”) attended public school in Douglas County, Colorado from preschool until the fourth grade. During his elementary school years, Drew increasingly struggled, experiencing behavioral, social, and academic difficulties, but his IEP remained virtually unchanged. Even the district court who later considered the case described Drew’s progress in the public program as “minimal.” By May 2010, when Drew’s behavior had escalated to the point where he was banging his head, kicking, screaming, crying, eloping from the school building, and toileting in the time-out room, his parents chose to unilaterally place him in a private school for children on the autism spectrum. By all accounts, Drew made substantially greater progress in the private school.  Nevertheless, the district court held that Endrew’s parents had not sufficiently proven that the school district’s educational program had failed to provide him “some educational benefit” before withdrawing him from public school, and were thus barred from reimbursement for the cost of the private program. The court noted that Endrew had received more than “de minimis” benefit, meaning more than trivial, which is all the Act requires.  Endrew’s parents appealed the district court’s decision to the Tenth Circuit Court of Appeals, which affirmed the district court’s decision.

The question before the Supreme Court is this: What level of educational benefit is required to meet the law’s requirement that a school district provide a child with a disability a ‘free appropriate public education’ (FAPE)?  The school district argued that the district court and the Tenth Circuit had ruled correctly in applying a standard that only required the school to provide minimal educational benefit to a student with a disability.  Attorney Neal Katyal, representing the school district, acknowledged that significant changes were made to the IDEA with the 1997 and 2004 amendments.  But, he argued, the amendments did not change the standard for a FAPE established in 1982 when the Supreme Court decided its first special education case, Board of Education v. Rowley.  In Rowley the Court held that school districts are not required to provide a child with the best or optimal education, but they must provide the child with “some educational benefit.”  Mr. Katyal argued that even minimal educational benefit is “some” benefit, and thus is all that is required.  The Justices, however, did not appear to accept that argument.  Chief Justice Roberts stated “Rowley just doesn’t say ‘some benefit.’ It tells you what it is. And it’s enough benefit to keep track with grade progress. And if that’s what the standard is, that’s certainly more than…de minimis.”  Justice Kagan, responding to Mr. Katyal, noted “your substantive standard is so low, is so easy to meet.”  Justice Ginsburg asked Mr. Katyal whether he would agree that “the courts should say that the formulation ‘more than de minimis’ sets the level too low.”  Mr. Katyal declined to agree. Chief Justice Roberts stated further “the whole package has got to be enough to allow the student to keep up with his peers.” Justice Sotomayor noted that Endrew had made significant progress in his private school whereas the progress he had made in the public program was “barely de minimis.

Endrew and his parents were represented by Jeffrey Fisher.  Mr. Fisher urged the Court to adopt a standard that would require school districts to “provide instruction and related services to the child that are reasonably calculated to provide substantially equal educational opportunities.”  Justice Ginsburg noted that that was the standard the Court was asked to adopt in Rowley but was rejected, and inquired why the Court should adopt it now.  Mr. Fisher noted that the amendments to the Act since the Rowley decision supported this standard.  The first iteration of the law did not address the progress of students with disabilities in the general educational curriculum.  However, as the Chief Justice pointed out, in accord with the amendments to the Act, progress in grade level curriculum is now a requirement of the Act to the extent a child is capable of such progress. Mr. Fisher pointed out that in its findings, Congress used the term “substantial educational opportunity” to “encapsulate what is required” of a student’s IEP.  Justice Breyer noted the difficulty of establishing a new standard which courts subsequently could interpret differently.  Mr. Fisher attempted to address Justice Breyer’s concerns stating “it would be fine if the Court decided that the IEP should be tailored to achieve in a general educational curriculum at grade level for most kids,” and when that is not possible to use the alternate achievement standards described in the law.  Justice Kagan questioned how a standard of equal educational benefit could be applied to children who are incapable of achieving at grade level. Mr. Fisher responded that for some students the “alternate benchmarks… that are the highest possible achievable for the student” would be appropriate.

The U.S. Department of Education (USDOE) also argued in support of the Parents’ case.  Irv Gornstein represented the USDOE.  Mr. Gornstein urged the Court to adopt a FAPE standard that would require the school district to provide an educational program that “is aimed at significant educational progress in light of the child’s circumstances.”

IMPRESSIONS:  Although the Justices seemed to favor a FAPE standard higher than “merely…more than de minimis,” they noted the difficulty of crafting a standard that would cover the entire spectrum of children with disabilities in a practicable way.  Justice Ginsburg indicated that the standard suggested by the USDOE seemed to be workable but did not seem particularly enthusiastic about it.  It is possible that the Court will find in favor of Endrew and his parents but not offer a standard that is any more instructive to school districts and parents than the Rowley “some educational benefit” standard.

The Supreme Court’s ruling holds relevance not only for lower court judges reviewing special education cases that have worked their way through the administrative hearing process. A clearer standard, if articulated in Endrew F., will serve as guidance to parents, IEP teams, school districts, hearing officers and Administrative Law Judges as to the level of progress that is considered reasonable in determining whether the school system has truly offered an “appropriate” program to a student with special needs.


A decision should be issued by the Court in the next two to three months.

Bel Air Square
260 Gateway Drive, Suite 11-12 B
Bel Air, Maryland 21014