Drew, a student diagnosed with ADHD and autism, attended public school in Colorado through fourth grade. The goals for his IEP remained the same year after year, and he made very little progress toward his IEP goals. He also exhibited severe behaviors and fears. His parents decided to enroll him in a private school that specialized in autism during his fifth-grade year.
Within months of Drew’s enrollment at the private school, his behaviors improved substantially, and he made significant academic progress. His parents sought reimbursement from the public school district to pay for his $78,000-per-year private school tuition. An administrative law judge rejected the parents’ request for reimbursement. The federal district court and the 10th Circuit Court of Appeals upheld this decision, finding that the IEP only needs to provide “merely more than ‘de minimis'” benefit to students with disabilities. Even though Drew had not met many of his academic goals, the 10th Circuit (which has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) reasoned that the school district had met its obligations under federal law.
Under the Individuals with Disabilities Education Act (IDEA), students must be provided a free appropriate public education (FAPE). Before the Court’s decision in Endrew F. v. Douglas County School District, the standard for what constituted a legally appropriate education for students with disabilities was not entirely clear. Federal circuit courts across the country applied inconsistent standards, creating a split: A majority of the federal circuits required IEPs that conferred “some educational benefit,” and two federal circuits required IEPs to confer “meaningful educational benefit.” The only time the U.S. Supreme Court addressed the FAPE standard was in 1982 when it held that the IEP must only be “reasonably calculated to enable the child to receive educational benefits.” The 10th Circuit applied the ruling in the case of Board of Education v. Rowley in such a way that it only required Drew’s school district to provide just-above-trivial benefits.
Drew’s parents appealed this decision to the U.S. Supreme Court and argued for a higher standard that would provide opportunities “substantially equal to the opportunities afforded to children without disabilities.” In Endrew F. v. Douglas County School District, the Supreme Court rejected both the standard proposed by Drew’s parents and the 10th Circuit’s “de minimis” standard. Instead, the court created a new standard to clarify that IDEA requires schools to provide an education that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
In a unanimous opinion in March 2017, the Supreme Court remanded the case, instructing the 10th Circuit to apply this more stringent standard—which the court described as “markedly more demanding” than the standard employed by the 10th Circuit. Unlike Rowley, the Endrew Court clarified that school authorities should provide a “cogent and responsive explanation” to justify how “the student’s IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” This decision expanded the scope of students’ rights under IDEA.
Endrew’s Emphasis on Behavior
Specifically, the court’s new standard was developed for students like Drew, who—unlike the student in the Rowley case—was not fully integrated into a general education classroom nor achieving academic or behavioral progress. The court clarified that schools could not offer an education that was so deficient that it “would be tantamount to ‘sitting idly … awaiting the time when [students with disabilities] were old enough to drop out.’ ”
Before attending the private school, Drew exhibited escalating behavioral issues that impeded his access to learning. He exhibited severe fears and would scream, hit, and climb over furniture and classmates. On occasion, he would run away from school or relieve himself on the classroom floor. Drew’s parents believed his behavioral challenges could have been reversed if the school would have conducted a Functional Behavior Assessment (FBA) and implemented an effective behavior intervention plan (BIP). The Supreme Court discussed how the private school identified Drew’s most serious behaviors and implemented a BIP to address them. The court stated: “Within months, [Drew’s] behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school.”
IDEA requires that when a student’s behavior is impeding their learning or the learning of others, the IEP team must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” Yet, by incorporating the phrase “consider the use of,” the federal law does not prescribe that an FBA must be conducted, nor that an effective BIP must be implemented.
Schools Should Prioritize Behaviors That Impede Learning
Despite the fact that FBAs and BIPs are not mandated, school leaders would be wise to effectively address behavioral issues in light of the Endrew opinion and subsequent federal court decisions. The Endrew decision shows that where a student is having a behavior issue that impedes his learning and a BIP is not put into place, the lack of a BIP will be heavily weighed in determining if an IEP is “appropriately ambitious in light of his circumstances.”
For example, a month after Endrew was decided, an Arkansas federal district court ruled that a school district had failed to provide a FAPE to a student with autism. The court reasoned that the district’s “behavior plans were inadequate, especially in light of the higher standard of Endrew.” Because the school neglected to address the student’s behaviors, law enforcement was called to intervene and charged the student with crimes on nine separate occasions. The district court noted that “while the IDEA does not explicitly mandate a behavior plan, any given child’s circumstances might implicitly require one” based on Endrew.
Future courts will also scrutinize whether a school has effectively addressed behavior that impeded a student’s ability to learn. As a result, schools will likely be held in violation of IDEA for failing to take meaningful, intentional steps to address such behaviors. After Endrew, school authorities must be prepared to clearly explain how the student’s IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Therefore, savvy leaders should:
- Ensure they have specially trained staff who can conduct FBAs that result in the creation and implementation of effective BIPs (such as board-certified behavior analysts).
- Scrutinize whether students who have limited interaction in general education settings could achieve greater inclusion if behavioral issues were reduced (i.e., examine BIPs for students who are not achieving on grade level and are educated in self-contained or special education classrooms).
- Track and analyze disciplinary referral data of students with disabilities in order to monitor whether behavioral issues need to be better addressed (e.g., through staff training or adjustments made to BIPs).
- Assign staff to monitor and document not only the academic, but also the behavioral progress achieved by each IDEA-eligible student.
- Instruct IEP teams that they are now legally required to create IEPs that are “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”
It is possible that Endrew will signal a new era of increased FAPE litigation. However, if leaders prioritize behavior, they could prevent lawsuits or decrease their probability to prevail. More important, implementing effective BIPs is likely to enhance students’ access to learning, which should result in greater progress.
Janet R. Decker, PhD, JD, is an assistant professor at Indiana University. Her publications focus on legal issues related to students with disabilities, including co-editing the Education Law Association’s A Guide to Special Education Law. Francesca Hoffmann, JD, instructs education law courses at Indiana University and practices school law in Indianapolis. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University. She has published widely on school legal matters, including co-editing The Principal’s Legal Handbook.