Bill’s Blog: The Supreme Court’s Decision in Endrew F.

By Bill Crane, Esq.[1]

This is one of occasional postings on special education law and practice and will be Bill’s final posting (see footnote 1).

A. Introduction

On March 22, 2017, the United States Supreme Court issued its decision in Endrew F.,[2] providing guidance regarding the IDEA’s FAPE standard for the first time since the Court’s Rowley decision in 1982.[3]

The FAPE (or free appropriate public education) standard under the IDEA (or Individuals with Disabilities Education Act) determines the extent of a school district’s responsibility to provide special education and related services to a student with a disability. Its importance to all students receiving services under the IDEA, as well as to school districts providing those services, is self-evident.

This posting will discuss the Endrew F. decision and its implications for students with disabilities, parents and school districts in Massachusetts.

The analysis in this posting is assisted by a Mass. Department of Elementary and Secondary Education (DESE) legal advisory entitled “Advisory on Endrew F. v. Douglas County School District RE-1, U.S. Supreme Court Decision on Standard for Individualized Education Programs under Federal Special Education Law (IDEA)” (or DESE Legal Advisory on Endrew F.).[4] The DESE Legal Advisory on Endrew F. was written by DESE legal staff and issued by the Commissioner on June 16, 2017. It is not unusual for Bureau of Special Education Appeals (or BSEA) hearing officers, as well as courts, to cite to and rely on these kinds of advisories.

B. The “some benefit” standard

The Endrew F. decision initially focused on the question of whether it is sufficient under FAPE for a school district to propose an IEP (or individualized education program) which seeks to provide a student with only “some benefit”.  This phrase had been used in Rowley, and ever since, courts had struggled with the question of whether the “some benefit” standard was all that the IDEA required. Some federal circuit courts adopted a “some benefit” standard while others adopted a “meaningful benefit” standard.

The First Circuit has used the “some benefit” standard in several of its decisions,[5] but more recently (and in all three of its most recent FAPE decisions since 2012), the Court has referenced a “meaningful benefit” standard.[6] But, the First Circuit never explicitly explained that it was moving away from a “some benefit” standard, nor did the Court ever explicitly explain why it had adopted the “meaningful benefit” standard. Perhaps because of this lack of transparency, one can find an inconsistency within the decisions of the federal district courts in Massachusetts.[7] As a BSEA hearing officer from 1999 to 2014, I found that in their written arguments, school district attorneys often cited to and advocated for the “some benefit” standard well after the First Circuit adopted a “meaningful benefit” standard in 2012.

It is therefore significant that Endrew F. explicitly rejected the “some benefit” standard, finding that the IDEA requires school districts to do more. It is worth noting that Endrew F. involved a student whose IEPs provided essentially the same goals and objectives from year to year. It seems that the Court was troubled that endorsing a “some benefit” standard would allow a school district to propose special education services that would likely result in little, if any, educational progress.

C. What Endrew F. tells us about FAPE

The Supreme Court considered and rejected the standard proposed by the student, which was an “equal educational opportunity” standard that had similarly been considered and rejected by the Supreme Court in Rowley.[8]

Neither the student nor the school district advocated for the Court to adopt a “meaningful benefit” standard. Perhaps as a result, the Supreme Court never discussed the “meaningful benefit” standard that had been embraced not only by the First Circuit but also by a number of other Circuit Courts, thus not addressing whether the “meaningful benefit” standard applies in FAPE disputes.[9]

So, after rejecting the “some benefit” standard, after rejecting an “equal educational opportunity” standard and after ignoring the “meaningful benefit” standard that many lower courts have been using, the essential question becomes: what guidance did the Court give us as to what special education and related services must be provided by a school district to satisfy the FAPE standard under the IDEA?

In Endrew F., the Supreme Court addressed this question by stating, at the outset, the following general approach: “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

This language combines two principles: first, that the opportunity for progress is required and second, that progress must be gauged in light of the student’s particular circumstances.  Regarding the requirement of progress, the Court emphasized its central importance to the FAPE standard: “The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.”

Regarding a student’s particular circumstances, the Court further explained that the “adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” An emphasis on the unique circumstances of the individual student in Endrew F. makes sense because, as both Endrew F. and Rowley have made clear, a focus on the unique educational needs of each particular child is at the core of the IDEA.

Endrew F. reaffirmed the central role of the IEP in providing FAPE in accordance with each student’s circumstances, stating that the IEP is the “means through which special education and related services are tailored to the unique needs of a particular child.” The Court went on to explain how this must be done: “An IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.”

Still, one is left with an important question: how much progress or educational benefit are we talking about here? The Court explained that it would “not attempt to elaborate on what ‘appropriate’ progress will look like from case to case.” Nevertheless, as discussed below, the Court’s decision provides guidance by reaffirming principles previously provided by Rowley and, importantly, by providing new guidance on the question as to what special education services should be provided for a particular student.

D. Re-affirming three principles previously found in Rowley

The Court re-affirmed three principles from Rowley. First, as discussed above, the Court explained the critical importance of looking at each student’s particular circumstances and emphasized that this is accomplished by tailoring each IEP to the student’s unique special education needs.

Second, the Court noted language from Rowley that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end.” In other words, expectations regarding appropriate progress under a FAPE standard should vary depending on the learning potential of the particular student. This principle was first identified in Rowley, has now been reaffirmed by Endrew F., and has been adopted by the First Circuit Court of Appeals as well as by all or nearly all of the other circuit courts.[10]

While I was a BSEA hearing officer writing special education decisions, I found the above standard to be nearly always relevant and helpful when resolving a FAPE dispute. I found the FAPE standard of appropriateness (or even meaningful benefit or effective progress) to be inherently ambiguous and difficult to describe, but when a student’s anticipated progress is considered within the context of that student’s learning potential, one can at least begin to come to a more considered opinion as to whether the anticipated progress for this particular student is sufficient. To understand the learning potential of a particular student, I found it nearly always necessary for an education expert to address this question.

Third, Endrew F. continued guidance provided by Rowley regarding a student’s passing grades as an indicator of appropriate progress under the FAPE standard when the student is fully included in a mainstream classroom. Endrew F. explained: “When a child is fully integrated in the regular classroom, as the Act prefers, what that typically means is providing a level of instruction reasonably calculated to permit advancement through the general curriculum.The Court went on to clarify this guidance with the following important caveat: “This guidance should not be interpreted as an inflexible rule. We declined to hold in Rowley, and do not hold today, that every handicapped child who is advancing from grade to grade … is automatically receiving a [FAPE] [internal quotations omitted].”

Because Endrew F. explicitly referenced grade advancement and because it adopted the same guidance provided in Rowley, it is relevant to consider the case law that has developed around this topic since the Rowley decision in 1982. Lower courts have been clear that grade advancement may be relevant to a determination of whether an IEP is reasonably calculated to provide FAPE when a student is fully integrated into the mainstream, but at the same time, as one circuit court explained, courts should not consider grade-to-grade advancement and passing marks to be dispositive of the question whether a student received a free appropriate education.[11]

School districts frequently cite passing grades as an indicator of sufficient progress. But because grades are used in different ways by different teachers and may even be intentionally altered for a particular student, it is always relevant to ask what the specific grades actually indicate for this student. For example, what learning is in fact reflected by a particular passing grade over the course of the marking period for this student? It is only through this kind of inquiry that one can determine whether a student’s passing grades are a true indication of educational progress.

When considering the role of grades in determining whether FAPE has been (or will be) provided, it is relevant to consider how grades may impact a student’s special education eligibility. Discussion of grades in the context of eligibility is relevant to a consideration of grades when determining the adequacy of an IEP because, as the First Circuit has explained, “eligibility and sufficiency-of-an-IEP determinations [must be read] as ‘parts [of] an harmonious whole.’”[12]

In Doe v. Cape Elizabeth Sch. Dist., the First Circuit discounted the importance of considering a student’s grades when determining whether a student has a specific learning disability (SLD) for purposes of determining the student’s eligibility. The Court recognized that a student’s grades, classroom performance, and standardized test scores are relevant in determining whether the student has an SLD. However, it explained that the IEP Team cannot look at such academic measures in isolation when determining eligibility. Rather, the team must consider the relationship between those academic measures and the alleged area of deficiency, and the First Circuit pointed out that the student in this case received low or very low scores on assessments of reading fluency. The Court concluded that it was incorrect to rely on the student’s excellent straight-A grades and above-average performance on statewide assessments in determining that she did not have an SLD.[13]

Also, IDEA regulations (relevant to eligibility) state that FAPE must be “available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.”[14]

In sum, the Endrew F. decision emphasized three principles that we already knew: first, that the only way that an IEP can be appropriate for a student is for the IEP to reflect and be based upon his or her particular circumstances (i.e., the student’s unique educational needs); second, that appropriateness must be gauged within the context of the student’s learning potential; and third, that passing grades may be a relevant consideration for some students who are fully included in a mainstream classroom.

E. New guidance: “appropriately ambitious” and “challenging objectives”

Endrew F. also provided guidance that did not appear in Rowley and that has not appeared, to my knowledge, in any lower court decision addressing the IDEA’s FAPE standard.

Endrew F. explained that each student’s “educational program must be appropriately ambitious in light of his circumstances …. The goals may differ, but every child should have the chance to meet challenging objectives.” The Court made clear its concern that some school districts may be imposing too low expectations on students: “When all is said and done, a student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all. 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 IDEA demands more. [Internal quotations omitted.]” The Court was clear that these mandates apply to each IEP proposed for each special education student under the IDEA, including students at each end of the spectrum of educational ability.[15]

What I suggest is central to an understanding of how the phrases “appropriately ambitious” and “challenging objectives” may impact a determination of the appropriateness of an IEP is factual context. If one seeks, for example, to understand the word “ambitious” by looking at the dictionary or by reading court decisions that have previously used this word in special education and non-special education cases, the results do not provide helpful guidance. Instead, I suggest that it will be the particular educational needs and opportunities of each student — that is the factual and educational context of the case — that tell us what “appropriately ambitious” actually means for a particular student. Examples in section I of this posting (below) seek to illustrate how these new terms might be applied within several specific contexts.

One final thought about this new language: the Court seems to have used words that can be understood and applied by non-lawyers — for example, by educators and evaluators — as well as lawyers. When a term appears in a statute (such as the word “appropriate” as it appears in the statutory expression “free appropriate public education”) the word is considered a term of art that can only be understood, explained or applied by someone with formal legal training. But, I suggest that in using the non-legal words “ambitious” and “challenging”, the Supreme Court may be opening the door to an educator’s or evaluator’s being able to understand and explain these terms and thereby provide guidance to IEP Teams, hearing officers and judges in ways that were not available in the past.

F. DESE’s perspective on “appropriately ambitious” and “challenging objectives”

The DESE Legal Advisory on Endrew F. analyzes the Supreme Court’s decision for school districts, thereby helping districts understand its implications for providing special education and related services in Massachusetts. In the process of doing so, the Advisory makes clear DESE’s belief that the Supreme Court’s “appropriately ambitious” and “challenging objectives” language is now an integral part of the federal FAPE standard and is in accord with existing Massachusetts education standards.

The DESE Legal Advisory is unequivocal that now, “as a matter of federal law, the educational program for a student with disabilities must be ‘appropriately ambitious in light of his circumstances’ and that every student should have ‘the chance to meet challenging objectives’ [emphasis in Advisory].” The Advisory quotes this new language four times, concluding (near the end of the Advisory) that the language is consistent with state education standards in Massachusetts as well as with DESE’s mission:

The federal principles set forth in the Endrew F. decision are in accord with our state education standards. Indeed, the Court’s statement that every student with disabilities is entitled to an educational program that is “appropriately ambitious” in light of the student’s circumstances and that provides “the chance to meet challenging objectives” is entirely consistent with the mission of public education in Massachusetts and our goal of preparing all students, including students with disabilities, for success after high school.

The Advisory concludes by stating its intention to continue to support all school districts in Massachusetts to provide a “high quality education to each and every student”.

In these ways, DESE has embraced the new language found within Endrew F., finding that the language supports DESE’s core mission of raising the quality of special education services for all students with disabilities in Massachusetts.

G. State education standards

State education standards are part of both the federal and the Massachusetts FAPE definitions.[16] It is well accepted by the courts (as well as by all of the BSEA hearing officers) that state education standards must be considered as part of, and are actually incorporated into, the federal FAPE standard.[17] I will summarize below two Massachusetts standards and discuss how they may be relevant to a FAPE analysis after Endrew F.

Massachusetts requires that a student’s IEP be designed to enable the student to make effective progress in the general curriculum.[18] Massachusetts special education regulations define the term “progress effectively in the general education program” as follows:

to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district. The general education program includes preschool and early childhood programs offered by the district, academic and non-academic offerings of the district, and vocational programs and activities.[19]

The DESE Legal Advisory on Endrew F. references the above effective progress regulations as “provid[ing] helpful context” when determining whether an IEP is appropriate.

Also, DESE’s standard IEP form includes the following “effective progress” language in both PLEP (Present Levels of Educational Performance) A and PLEP B:

What type(s) of accommodation, if any, is necessary for the student to make effective progress?

What type(s) of specially designed instruction, if any, is necessary for the student to make effective progress?[20]

Therefore virtually every Massachusetts IEP uses an “effective progress” standard.

The term “effective” or “effectiveness” can also be found within the purposes of the IDEA and within several First Circuit and District of Massachusetts decisions.[21]

BSEA hearing officers have often used the state standard of “effective progress” within their decisions, typically combining it with the “meaningful benefit” standard which has been used by the First Circuit. For example, in a 2015 FAPE decision, a BSEA hearing officer stated the FAPE issue, in part, as “[w]hether [the student] is making effective progress that allows her to benefit meaningfully from her IEP.”[22]

The state standard of “effective progress” becomes particularly important after Endrew F. for two reasons. First, because the Supreme Court’s decision made no reference to the “meaningful benefit” standard, the continued relevance of that standard is unclear. It remains to be seen of course, but it seems possible that the First Circuit will feel more comfortable using language found within Endrew F., rather than continue using the “meaningful benefit” standard.

Second, the effective progress and meaningful benefit standards can be understood as roughly comparable or at least parallel. This can be seen in the way that BSEA hearing offices have used these two standards over the years. Therefore, attorneys, advocates, parents and school districts who have relied on the meaningful benefit standard may decide instead to use the effective progress standard as the approximate equivalent, at least until we see whether judges within the First Circuit will continue to use the “meaningful benefit” standard after Endrew F.

A second, relevant Massachusetts education standard requires that IEPs be written so that they develop the student’s educational potential. This standard appears twice within Massachusetts statutes. MGL c. 71B, s. 1 defines the term “special education” to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities”. MGL c. 69, s. 1 goes further, stating the “paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential”. Massachusetts special education regulations (603 CMR 28.01(3)) echo MGL c. 71B, s. 1 (quoted above) by stating that the “purpose of 603 CMR 28.00 is to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential in the least restrictive environment in accordance with applicable state and federal laws.”

It may be useful to compare this Massachusetts standard with the above-discussed FAPE standard developed in Rowley (and re-affirmed in Endrew F.) that progress under the IDEA must be gauged within the context of a student’s learning potential. As discussed above, this IDEA standard provides a context within which to determine whether the amount of anticipated progress for a particular student is sufficient. Similarly, Endrew F. makes clear, also as discussed above, that an IEP “is constructed only after careful consideration of the child’s … potential for growth.” When a student’s learning potential or potential for growth is considered in developing an IEP under the standards articulated by Endrew F., the IEP should provide special education services that allow the student to increase his or her learning potential. In this way, the IDEA standard is consistent with what the Massachusetts standard requires regarding developing a student’s educational potential.

Nevertheless, the Massachusetts standard has a different emphasis than the IDEA standard because of the state education standard’s central focus on providing special education and related services that will allow each student to increase his or her learning (or educational) potential. This might be illustrated by a student who is making demonstrable progress in developing reading skills but is nevertheless unlikely to become a fluent and independent reader (and be able to read to learn) without substantially more intensive or comprehensive special education services. As will be discussed in the example section below (section I), application of the Massachusetts standard to these facts more clearly focuses the inquiry on the student receiving the special education services that are needed for him to be able to read as a means of learning.

As with the effective progress standard discussed above, the Massachusetts standard of developing a student’s educational potential has been used within BSEA decisions [23] and, as illustrated in section H, below, may become relevant in FAPE disputes after Endrew F.

H. BSEA and federal court decisions after Endrew F.

To date, four BSEA decisions and a number of federal district court decisions have resolved FAPE issues after Endrew F.

In Re: Boston Public Schools, BSEA # 1702809 (Figueroa, May 26, 2017), the hearing officer used a “meaningful benefit” standard, finding that it is aligned with the principles spelled out in Endrew F.[24]

In Re: Student v. Boston Public Schools and Mass. Dept. of Mental Health, BSEA # 17-07097 (Berman, May 8, 2017), the hearing officer used a standard of providing “effective results and demonstrable improvement in the educational and personal skills identified as special needs” as well as a “meaningful benefit” standard. The hearing officer also quoted the “appropriately ambitious” and “challenging objectives” language from Endrew F.

In Re: Student v. Norton Public Schools, BSEA # 16-09348 (Berman, April 18, 2017), the same hearing officer used the same FAPE standard found in her (above-referenced) May 8th decision. The hearing officer also used the “appropriately ambitious” language to find the IEP to be appropriate, as follows: “The overwhelming weight of the evidence in this matter indicates that the proposed IEP and placement for the 2016-2017 school year was appropriate for Student, offering him, goals that are appropriately ambitious in light of his circumstances, and a placement calculated to enable him to reach those goals [internal quotations omitted].”

In Re: Student v. Boston Public Schools, BSEA # 1707797 (Putney-Yaceshyn, April 14, 2017), the hearing officer quoted language found within Endrew F. as part of her FAPE standard: “For an IEP to provide a FAPE, it must be ‘reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.’” The hearing officer used an effective progress standard, citing both to the IDEA and to state education standards.

These four BSEA decisions perhaps reflect that the BSEA will continue using the same FAPE standards that the hearing officers have been using for the past few years, with the addition of language from the Endrew F. decision.

There have been a number of federal decisions applying Endrew F. standards but so far, none of these decisions is within the First Circuit, and none provides discussion or analysis beyond what is found within Endrew F.

I. Examples of how Endrew F., together with Massachusetts standards, might be applied

The following examples may illustrate how the Endrew F. FAPE standards, when read together with Massachusetts education standards, might become relevant when deciding whether an IEP is appropriate.

Window of Opportunity. I begin with the example of a young student diagnosed with autism. Federal courts and BSEA hearing officers have generally recognized the importance of considering a “window of opportunity” for such a student when determining what special education and related services should be provided in order to ensure a child’s meaningful access to education and to avoid jeopardizing a child’s opportunity to make effective progress. One court, for example, explained: “The experts testified that there is a critical developmental window for autistic children with language and behavioral deficits. Without sufficient adult intervention now to help reprogram [student’s] young brain, his opportunity for “meaningful access to education” may be permanently foreclosed. [Citations omitted.]” [25]

The Massachusetts standard of developing the student’s learning or educational potential might be particularly relevant in this kind of dispute because intensive special education services now may substantially improve a student’s potential for learning in the future. After Endrew F., experts might opine that in their professional opinion, it would be ambitious to provide this young student with a regime of very intensive special education services over a period of several years but it would nevertheless be appropriate to do so because of the importance of using the “window of opportunity” to develop the student’s educational potential.

Learning to Read to Learn. A second example would be a case where a student with language deficits is making some academic progress (including progress in isolated reading skills) and passing from grade to grade, and the proposed special education and related services would likely continue this progress. But, let’s assume that an education expert nevertheless concludes that the proposed services are too disjointed and not sufficiently intensive to permit the student to make progress in reading and written language skills that would remediate his underlying reading deficits and allow him to become a fluent and independent reader.

The education expert might further opine that at higher grade levels, the work becomes more challenging, and it becomes increasingly difficult to find sufficient time within a student’s schedule to focus on remediation of basic reading skills. There may be an increasing sense of failure and disengagement from learning if the student’s reading deficits are not soon remediated. This may result in a significant risk of the student’s always being a dysfluent reader and struggling throughout his academic career, even though he has the potential to become a fluent and independent reader.

As with the first example, the Massachusetts standard requiring development of a student’s learning or educational potential is relevant. With sufficiently intensive and comprehensive special education services, this student will have the critical opportunity to gain substantial, life-long learning potential by becoming a fluent and independent reader, allowing the student to read to learn. An education expert might opine that it is appropriate for this student to have a challenging learning objective of becoming an independent, fluent reader in order to develop the student’s learning potential, and it would therefore be appropriate for the student to receive an ambitious special education program in the form of a language-based program that is designed to remediate his underlying reading deficits.

Same Goals and Objectives. A third example might reflect the facts in Endrew F., at least as those facts were alleged by the parents’ attorneys and reported by the Court. Here is what the Court wrote in Endrew F.:

As Endrew’s parents saw it, his academic and functional progress had essentially stalled: Endrew’s IEPs largely carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress toward his aims. His parents believed that only a thorough overhaul of the school district’s approach to Endrew’s behavioral problems could reverse the trend. But in April 2010, the school district presented Endrew’s parents with a proposed fifth grade IEP that was, in their view, pretty much the same as his past ones. So his parents removed Endrew from public school and enrolled him at Firefly Autism House, a private school that specializes in educating children with autism.

This is the context within which the Supreme Court overturned the lower court’s use of the “some benefit” standard and explained that an “educational program must be appropriately ambitious in light of his circumstances, within the context of his or her particular circumstances” and that “every child should have the chance to meet challenging objectives.”

In the past, school districts have sometimes sought to defend IEPs which essentially repeated the same goals and objectives from year to year, with a school district arguing that each IEP was nevertheless reasonably calculated to result in appropriate progress in light of the student’s educational abilities and learning potential at that particular time.

I suggest that after Endrew F., it will be more difficult for this argument to succeed, particularly if parents present credible expert testimony that the student is capable of making substantially greater progress and, therefore, that the IEP is not appropriately ambitious and that the IEP lacks sufficiently challenging learning objectives. One might speculate that the Supreme Court would likely be dissatisfied if its newly-articulated standards simply allowed for the facts of Endrew F. (quoted above) to constitute sufficient educational progress.

Transition Services. A fourth example illustrates how transition services could be affected by Endrew F. There can be little doubt regarding the importance of transition planning and services as students prepare to leave secondary education. DESE has stated that its “overarching goal” is to “prepare all students to succeed in the world that awaits them after high school” with the result that “the ultimate goal of all professional endeavors in special education is to prepare students with disabilities for adult life.”[26] DESE has also explained: “[D]ESE has placed the highest importance on preparing students to succeed as adults.”[27]

Similarly, Congress has pointed out that the importance of transition services is perhaps self-evident when one considers that the vast amounts of resources used to educate students under the IDEA may have only limited usefulness if students are not prepared to move successfully into post-high school education, employment and independent community living.[28] In addition, the essential purpose of transition services is found within the principal purposes of the IDEA.[29]

When one seeks to understand the phrases “appropriately ambitious” and “challenging objectives”, it should be permissible to consider what is at stake for a particular student as well as what the student has the learning potential to accomplish. Certain transition services might seem unreasonable in the abstract; but when considered within the context of enabling a student after high school to become competitively employed, to live independently or to go to college, ambitious special education services and challenging learning objectives may be understood as entirely necessary and appropriate. Again, experts are likely to be an essential part of explaining to an IEP Team or hearing officer that ambitious services are needed so that this student will have a reasonable opportunity to succeed after high school and also to explain why, in very practical terms, it is so important that the student be given this opportunity.

Speech-Language Services. A final example might illustrate how the Endrew F. standards could be applied in a special education case with less at stake than the examples above. Let’s assume that a student with a disability has speech and language needs, and the IEP Team is trying to figure out the amount of speech language services to be provided.

The “appropriately ambitious” and “challenging objectives” language may be applied in this situation, just as it applied in the above examples. The Team would need to write learning goals and objectives for this student that are “challenging” and then would need to write into the IEP speech language services that are “appropriately ambitious” in order for the student to meet his or her goals and objectives. As with the previous examples, the terms “ambitious” and “challenging” would take on meaning as a result of the educational context of the particular student.

J. Conclusion

The United States Supreme Court has now issued two FAPE decisions in which it explicitly gave content to the FAPE standard found within the IDEA — the Rowley decision and the recent Endrew F. decision. In Endrew F., the Court essentially did three things. First, the Court put to rest the argument that FAPE requires no more than an IEP reasonably calculated to provide “some benefit”.

Second, Endrew F. re-affirmed several important FAPE principles first articulated by Rowley —  that special education and related services must be tailored to meet the unique needs and circumstances of each student, that appropriateness must be gauged within the context of each student’s learning potential, and that passing grades may be relevant to the question of appropriateness for students who are fully included in mainstream classes.

Finally, Endrew F. gave us new language (“appropriately ambitious” and “challenging objectives”) to consider when determining what learning goals and objectives are appropriate for a particular student and what special education and related services are appropriate to allow the student to meet these goals and objectives. It remains to be seen, of course, how this new language, combined with existing Massachusetts education standards, will be applied within specific factual contexts by IEP Teams, BSEA hearing officers, and, eventually, the courts.


[1] Bill has been at MAC in a volunteer, of counsel position since July 2014. He was a hearing officer at the Bureau of Special Education Appeals from 1999 to 2014. Bill is leaving his position at MAC on June 27, 2017, and retiring from the law and special education work.

[2] Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017). The decision may be found on-line at https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf

[3] Board of Education v. Rowley, 458 U.S. 176 (1982),

[4] The DESE Legal Advisory on Endrew F. may be found on-line at http://www.doe.mass.edu/lawsregs/advisory/2017-0616ieps.html

[5] See, e.g., Lessard v. Wilton Lyndeborough Cooperative School Dist., 518 F.3d 18 (1st Cir. 2008).

[6] See Ms. S. v. Reg’l Sch. Unit 72, 829 F.3d 95 (1st Cir. July 15, 2016); Sebastian M. v. King Philip Regional School Dist., 685 F.3d 79 (1st Cir. 2012); D.B. v. Esposito, 675 F.3d 26 (1st Cir. 2012).

[7] See, e.g., C.D., by and through her Parents and Next Friends, M.D. and P.D. v. Natick Public Schools and Bureau of Special Education Appeals, 15-13617-FDS, 69 IDELR 213, 117 LRP 11418 (D.Mass. March 28, 2017).

[8] In Rowley and Endrew F., the Supreme Court essentially concluded that the IDEA does not require schools to provide equal educational opportunities to all students. Equal educational opportunity principles can be found within Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, both of which apply to school districts in Massachusetts.

[9] The Supreme Court did not use the phrase “meaningful benefit” and used the similar phrase “meaningful progress” only in the following sentence: “As Endrew’s parents saw it, his academic and functional progress had essentially stalled: Endrew’s IEPs largely carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress toward his aims.”

[10] See, e.g., Lessard v. Wilton Lyndeborough Cooperative School Dist., 518 F.3d 18, 29 (1st Cir. 2008) (“levels of progress must be judged with respect to the potential of the particular child. So here: while the reported progress is modest by most standards, it is reasonable in the context of Stephanie’s manifold disabilities and low IQ”);Beth R. v. Forrestville Valley Comm. Unit Sch. Dist. No. 221, 375 F.3d 603, 615 (7th Cir. 2004) (“requisite degree of reasonable, likely progress varies, depending on the student’s abilities”), cert. denied, 125 S. Ct. 628 (2004); Shore Regional High School Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004) (“IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential”) (Alito, J.); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6th Cir. 2004) (“IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”).

[11] In Re Conklin, 946 F.2d 306, 315-16 (4th Cir. 1991). See also M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F.3d 96, 104 (2nd Cir. 2000) (“Once it is conceded that the IEP is materially incomplete in identifying the learning deficits acknowledged to exist, and the IEP has been found ineffective by the [State Review Officer] as a tool for setting baselines and measuring progress, the School Board cannot rely on the passing grades it has given and the promotional decision it has made to argue that the remedial measures in the IEP are, as a matter of law, reasonably calculated to deliver educational benefits”); D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 567 (3d Cir. 2010) (“when the ‘mainstreaming’ preference has not been met so that high grades are achieved in classes with only special education students set apart from the regular classes of a public school system, the grades are of less significance than grades obtained in regular classrooms”); West Chester Area Sch. Dist. v. Bruce and Suzanne C, 194 F. Supp. 2d 417 (E.D.Pa. 2002) (it was error to focus on student’s grades while disregarding his potential).

[12] Doe v. Cape Elizabeth Sch. Dist., No. 15-1155, 832 F.3d 69, 89 (1st Cir. 2016) (concurring opinion). See also Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1107 (9th Cir. 2007).

[13] Doe v. Cape Elizabeth Sch. Dist., No. 15-1155, 832 F.3d 69, 79 (1st Cir. 2016).

[14] 34 CFR 300.101(c).

[15] Perhaps the only instance where this new language may not apply, according to Endrew F., is a student who is “fully integrated in the regular classroom”, “progressing smoothly through the regular curriculum” and “able to achieve on grade level”.

[16] See 20 USC 1401(9)(b); MGL c. 71B, s. 3.

[17] See, e.g., Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524-25 (2007); Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 11 (1st Cir. 2007).

[18]  See 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”).

[19] 603 CMR 28.02(17).

[20] The DESE standard IEP forms may be found on-line at http://www.doe.mass.edu/sped/iep/eng_toc.html

[21] 20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of, efforts to educate children with disabilities”) (emphasis added); Lenn v. Portland School Committee, 998 F.2d 1083, 1090 (1st Cir. 1993); Roland v. Concord School Committee, 910 F.2d  983, 991 (1st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Andover Sch. Comm. v. Bureau of Special Educ. Appeals of Div. of Admin. Law Appeals, 2013 WL 6147139 (D. Mass. 2013) (“particularly important in this case [where disability is primarily social/behavioral] to assess whether a particular IEP … is reasonably calculated to provide  effective results and demonstrable improvement in the various education and personal skills identified as special needs”) (emphasis in original); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007) (educational program “must be reasonably calculated to provide effective results  and demonstrable improvement in the various educational and personal skills identified as special needs”).

[22] In re: Jacqueline and Brookline Public Schools, BSEA # 14-08578 (Reichbach 2015).

[23] See, e.g., Student v. Boston Public Schools, BSEA # 1707797 (Putney-Yaceshyn 2017); In Re: Student v. Belchertown Public Schools, BSEA # 16-04027 (Figueroa 2016).

[24] The decision is dated May 26, 2016, but it is clear that this is a typographical error. It seems most likely that the decision was issued on May 26, 2017.

[25] TH v. Board of Education of Palatine, 55 F. Supp.2d 830 (N.D.Ill. 1999). See also JH v. Henrico County School Board, 326 F.3d 560 (4th Cir. 2003) (“window of opportunity” is relevant in determining the level of services needed to prevent student’s progress from being “significantly jeopardized”); Burlington v. DOE, 736 F.2d 773, 798 (1st Cir. 1984) (“Some skills must be learned early in the brain’s maturation process for them to be learned well, or in some cases, at all.  Delay in remedial teaching is therefore likely to be highly injurious to such children.”); Lawyer v. Chesterfield County School Board, 19 IDELR 904 (E.D. Va. 1993) (court first notes “a small, but vital, window of opportunity in which [students with moderate to severe childhood autism] can effectively learn”. . .  and then concludes that “it is extremely important that at this critical stage of development, [student] receive uninterrupted speech language therapy”); In Re: Haverhill, BSEA # 05-5383, 11 MSER 242 (SEA MA 2005) (not disputed that failure to provide appropriate services to Student during time period from ages 2 to 7 would likely foreclose any opportunity for Student to develop functional language and learn as a typical child); In Re: Haverhill Public Schools, BSEA # 04-4998, 10 MSER 350 (SEA MA 2004) (critical importance of providing effective services to a child on autism spectrum during his early years); In Re: Revere Public Schools, 38 IDELR 116 (SEA MA 2002) (student is “in a critical period of child development and this valuable window of opportunity for Student to receive FAPE must be fully utilized”); In Re: Belmont Public Schools, 35 IDELR 77 (SEA MA 2001) (because of Student’s window of opportunity to absorb more education now than when she reaches age 7 or 8, it is “particularly important to provide Student at this point in time with all of those educational services from which she can benefit” [emphasis in original]); In Re: Winthrop Public Schools, 29 IDELR 558 (SEA MA 1998) (“there is a narrow window of opportunity which must be capitalized upon in educating children, such as Student, who present with autism/PDD, if their educational development and potential is to be maximized”); In Re: Watertown Public Schools, 24 IDELR 92 (SEA MA 1996) (“Children with PDD and autism have a window of opportunity from the ages of roughly three to seven in which their capacity to learn is at their greatest. Once the window of opportunity closes, hope for further development is greatly limited.”).

[26] “Technical Assistance Advisory SPED 2013-1: Postsecondary Goals and Annual IEP Goals in the Transition Planning Process” found at http://www.doe.mass.edu/sped/advisories/13_1ta.html

[27] “Technical Assistance Advisory SPED 2017-1: Characteristics of High Quality Secondary Transition Services” found at http://www.doe.mass.edu/sped/advisories/2017-1ta.pdf

[28] Congress emphasized this point in 1990 when considering whether to add to the IDEA a specific mandate regarding transition planning and services. In House Report 101–544, Congress observed that

individuals will move from school into adult life with varying degrees of success. Some will go to college, some will enter vocational training programs, while others will enter the workforce and some will qualify for vocational rehabilitation services. Unfortunately, others will exit our nation’s schools into nothing. Years of special education will be wasted while these individuals languish at home, their ability to become independent and self-sufficient (therefore making a positive contribution to society) placed at significant risk. The Committee sees such an outcome as highly undesirable. Although not fully responsible for ensuring an appropriate entrance into the adult world, school systems must do more to address the transition of special education students into adulthood.

H.R.Rep. No. 101-544, 101st Cong., 2d Sess. 9, reprinted in 1990 U.S.Code Cong. & Admin. News 1723, 1731-33 (emphasis supplied), quoted in part in Todd D. by Robert D. v. Andrews, 933 F.2d 1576, n.2 (11th Cir. 1991).

[29] The IDEA’s principal purpose is “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 … prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).