Annual IEP Meetings and Endrew F.: What Happens Next?
I posted last month about the U.S. Supreme Court’s decision in Endrew F. v. Douglas County School District RE-1. Since the Supreme Court issued this decision, I have read many commentaries, analyses, blogs, posts, and other thoughts about the meaning of this decision for parents of children with disabilities with IEPs. I would say most of the comments were positive. In other words, many attorneys who practice in the area of special education believe the Supreme Court’s decision in Endrew F. believe it will be favorable for parents. For me, I have tried to be a student of the law for many years and try not to rush to rendering an opinion on such an important case such as Endrew F. until the “jury is out. What do I mean? In my many years of practicing law, I try to wait for lower courts to interpret a Supreme Court decision or new statute and then wait for appeals to follow before jumping to rendering an concrete opinion. I have learned that it may take sometimes years before lower courts and appellate courts interpret a Supreme Court decision or new statute before you can determine which way the legal wind will blow. As an example, it took many years before lower courts and appellate courts interpreted the meaning of the Supreme Court’s decision in Rowley. And it also took many years before lower courts and appellate courts had an opportunity to review and issues decisions on the Individuals with Disabilities Education Improvement Act of 2004. In fact, the courts are still churning out new decisions on the IDEA of 2004.
I would take my analysis one step further. In which state you live may also determine whether the Supreme Court’s decision in Endrew F. will be interpreted favorably for parents of children with disabilities. You can bet families in California, for instance, will likely receive better and more favorable decisions interpreting Endrew F. than families in Georgia. You have probably heard from time to time how liberal courts are in California and the Ninth Circuit Court of Appeals. I bet you never heard anyone say the administrative law judges, federal district courts, and the Eleventh Circuit Court of Appeals are very liberal. So it is more predictable that administrative law judges and federal district courts in Georgia will be more cautious and moderate about their interpretation of the Endrew F. decision. This is not say that some judges in Georgia will construe and interpret the Endrew F. decision more liberally. We can certainly advocate for a liberal interpretation of this decision. But I would be cautious in predicting precedent setting special education decisions of Endrew F. by most judges in Georgia who tend to be judicially conservative.
So what do parents do in the meantime? Most annual IEP meetings usually occur in March, April, May and even June of each school year. You can definitely advocate that the standard for reviewing IEP goals and objective is no longer just a de miniums or a trivial benefit standard. The Court in Endrew F. expects that a child with a disability will make more than trivial progress during the school year. How much more is yet to be determined. The Supreme Court in Endrew F. declined to “establish any one test for determining the adequacy of educational benefits upon all children are covered by the Act.” Again, what test is adopted by the courts will depend, in part, in which state or jurisdiction you live in. You can safely argue that when a school system develops an IEP with the same goals and objectives from year to year indicating that he has failed to make meaningful progress toward such goals and objectives will no longer pass muster. In other words, you should not accept adoption of the same goals and objectives for your child each year for several years. This will not pass the Endrew F. test. You should advocate for an IEP that is reasonably calculated to enable your child to male progress appropriate in light of the child’s circumstances. You may be able to advocate that your child’s potential for making progress should be considered by the IEP team. Higher aspirational goals, depending upon your child’s unique circumstances and abilities, should be on your list at an annual IEP meeting. The Supreme Court, however, in Endrew F. cautioned that a court should consider whether the IEP is reasonable, and not whether the court regards it as ideal.
For a child in regular education classes, the Court in Endrew F. expects the IEP should be reasonably calculated to enable the child to achieve passing grades and advance to grade to grade. This is basically the same standard adopted by the Court in Rowley in 1983. The IEP team should expect more of a child with a disability fully integrated in regular education classes. On the other hand, Rowley did not address or provide concrete guidance with respect to a child that is not fully interpreted in regular education classes and will not be able to achieve on a grade level. For these children, the Court in Endrew F. clearly stated the standard should be markedly more demanding than just de minimus or trivial benefits. What that standard may be is yet to be determined by a court in Georgia. You can reach for the sky or just reach further than you ever have for your child at your annual IEP meeting. No doubt, Endrew F. sets no specific limitation on what the IEP team must do for a child that is not fully integrated in regular education classes.
If you have comments or questions about the Endrew F. decision, please feel free to contact me.