Plan vs. Action: How Special Education Law Is Evolving in the Wake of Endrew

Kelsey Lear*

Today, a higher number of special education students are benefiting from the dedicated service of the United States education system than ever before.  See Joel McFarland et al., The Condition of Education 2019, Nat’l Ctr. for Educ. Stat., 60 (May 22, 2019),  Students who qualify “are those identified by a team of professionals as having a disability that adversely affects academic performance and as being in need of special education and related services.”  Id.  During the 2017–2018 school year, 7.0 million students between the ages of three and twenty-one received special education services, which accounted for 13.7% of all public-school students in the country.  Id.  This was an increase from the 6.4 million students who received special education services during the 2011–2012 school year.  Id.  The United States Legislature has sought to protect these students through the implementation of the Individuals with Disabilities Act (IDEA).  See generally 20 U.S.C. § 1400 (2012).I.  The IDEA

Congress enacted the IDEA in 1974 “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”  Id. § 1400(d)(1)(A).  States that receive federal funding for education must provide a “free appropriate public education” (FAPE) to all children with disabilities that reside in the state.  Id. § 1412(a)(1).  A “FAPE [is] comprise[d] of ‘special education and related services’—both ‘instructions’ tailored to meet a child’s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction.”  Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748–49 (2017) (citing 20 U.S.C. §§ 1401(9), (26), (29)).  A FAPE is provided to a child through the “individualized education program” (IEP).  20 U.S.C. § 1401(14).  “The IEP is a written statement that sets forth the child’s present performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals.”  Ass’n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1043 (10th Cir. 1993).  The IEP is developed by the child’s “IEP team,” a group of school officials, teachers, and parents.  Fry, 137 S. Ct. at 749.  IEPs must be reviewed at least annually and, if appropriate, the IEP is revised.  20 U.S.C. § 1414(d)(4).

II.  Plan: Rowley and Endrew

The Supreme Court first articulated the standard that is used as a starting point to determine if a child’s IEP complies with the obligations imposed by Congress in Board of Education v. Rowley, 458 U.S. 176, 207 (1982).  In Rowley, the Court concluded that a school must offer an IEP that is “reasonably calculated to enable the child to receive educational benefits,” and that “the achievement of passing marks, and advancement from grade to grade” is an important factor to determine educational benefit if the “child is being educated in the regular classrooms of a public school system.”  Id. at 207 & n. 28.  However, this decision left many questions unanswered because the Court declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.”  Id. at 202.  The Rowley decision’s failure to establish a test suited for all students caused a split between the circuits with some courts interpreting it to mean that an IEP required schools to provide “some educational benefit,” while others believed they were to follow the “meaningful educational benefit” standard.  Compare Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1154 (10th Cir. 2008) (“[A] school district is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student’s IEP goals.”) with Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3d Cir. 1988) (“Although the Supreme Court has instructed that Congress did not intend to provide optimal benefit, the Act’s use of the phrase “full educational opportunity” … indicate[s] an intent to afford more than a trivial amount of educational benefit.”).

In 2017, the Court clarified the Rowley standard in Endrew F. v. Douglas County School District, where the Court rejected the Tenth Circuit’s “merely more than a de minimis” standard.  Endrew F. v. Douglas Cty. Sch., 137 S. Ct. 988, 1001 (2017).  While Rowley dealt with a narrow issue in which the child was fully integrated in a regular classroom, it failed to “provide concrete guidance with respect to a child who is not fully integrated in the regular classroom.”  Id. at 992.  The Court reasoned that a de minimis standard is too weak for students who cannot be educated in the regular classroom because it is out of line with the IDEA’s guarantee of access to an education and with the IEP standards set forth in Rowley.  Id.  at 999–1001.  After Endrew, for a school “to meet its substantive obligation under the IDEA, [it] must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”  Id. at 999.

Rowley and Endrew provide useful guidelines for evaluating the substance of a child’s IEP and explain how an IEP, as written, may fail to satisfy the IDEA’s substantive threshold.  See Rowley, 458 U.S. at 180; see also Endrew, 137 S. Ct. at 1001.  However, even if a written IEP satisfies the IDEA’s substantive threshold, schools can fail to meet their obligation to provide a FAPE by failing to adequately implement the IEP in practice.  L.J. by N.N.J. v. Sch. Brd. of Broward Cty., 927 F.3d 1203, 1208 (11th Cir. 2019).

III.  Action: L.J. by N.N.J v. School Board of Broward County

For over forty years, courts have struggled to articulate the extent of educational benefits that schools must provide to special education students.  See Rowley, 458 U.S. at 180; see also Endrew, 137 S. Ct. at 1001.  The various courts’ ambiguity and variance have caused extensive confusion and disagreement between parents, teachers, and school districts.  Id.  Unfortunately, parents and school districts do not always agree on the best course of action.  See Tracey G. Mueller, IEP Facilitation: A Promising Approach to Resolving Conflicts Between Families and Schools, 41 TEACHING Exceptional Child. 60, 60 (2009).  Even if the parties do agree on the child’s IEP, problems can arise during the implementation of the IEP.  See id. at 65.  The recent Eleventh Circuit decision in L.J. by N.N.J., attempted to refine what it means to adequately implement a student’s IEP.  L.J. by N.N.J., 927 F.3d at 1208.  L.J., a student diagnosed with autism as well as a speech and language impairment, received special education services since the third grade.  Id. at 1206.  Since that time, L.J. and his mother challenged the school’s plans on multiple occasions, disputing both the content and implementation of his IEP throughout various points of his education.  Id.  Unfortunately for all of the parties involved, L.J.’s disagreements continued from third grade into adulthood, with his appeal coming before the court at the age of twenty-six.  Id. at 1221 (Jordan, J., concurring).

The nature of L.J.’s most recent dispute was directed solely at the implementation of his IEP as he transitioned from elementary to middle school.  L.J. by N.N.J., 927 F.3d at 1204.  The majority distinguished between the concepts of plan and action to further refine what it means to receive a FAPE.  Id. at 1206.  The court concluded that “the materiality standard—asking whether a school has failed to implement substantial or significant provisions of the child’s IEP—is the appropriate test in a failure-to-implement case.”  Id. at 1213.  Further, the court stated that “whether an implementation failure is material will therefore depend on the relevant provision’s place and purpose in the IEP, as well as the overall educational context that the IEP was designed for and the extent and duration of any difference between practice and plan.”  Id. at 1214.  Therefore, the task for courts reviewing failure-to-implement cases will be to compare the services described in the IEP with those actually delivered, weighing how much was withheld and how important the services were with respect to the IEP.  Id.

IV.  Conclusion

It is unclear what, if any, impact L.J. by N.N.J. will have on subsequent cases dealing with the implementation of a child’s IEP.  However, as courts continue to disagree on the proper interpretation of Rowley, Endrew, and their progeny, a more refined standard that involves both the written substance of the IEP and the implementation of the IEP is needed.  See Paris Sch. Dist. v. A.H., No. 2:15-CV092197, 2017 WL 1234151 (W.D. Ark. April 3, 2017); see also Bd. of Educ. v. Maez, No. 16-cv-1082, 2017 WL 3278945 (D.N.M. Aug. 1, 2017) (“[the child] was making some meaningful progress, even if it was not the exact type of progress that Parents would have wanted.”).  As the number of special education students served under the IDEA increases, courts will continue to have various interpretations of what it means to provide a FAPE to those students who need it most.  Students and school officials alike need the standard clarified to correctly implement a student’s IEP.

*Kelsey Lear is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society.  Kelsey is the Vice President of the Criminal Law Association, a law scholar for Professor Robert Knowles’s Civil Procedure class, and a research assistant for Professor Donald Stone.  This summer she will join Rollins, Smalkin, Richards & Mackie, L.L.C. as a summer associate. 




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