***Post Written by Dan Mayer, Public Relations Chair for WSPA***

In Julie Weatherly’s article (found below) outlining her recommendations (in the Council of Administrators of Special Educators Newsletter) for districts based upon the Endrew decision, what role does a school psychologist play in determining the appropriateness in determining the reasonableness of the IEP? How does the 3 year reevaluation play in the determining this “reasonable” standard? How does this ruling change your attitude towards the 3 year reevaluation in developing the IEP? It was determined the District’s inability to properly address [Endrew’s] behaviors resulted in him not making progress, how do we ensure we are conducting FBAs and BIPs?


JULIE J. WEATHERLY, ESQ. – Resolutions in Special Education, Inc. Mobile and Birmingham, Alabama and Naples, Florida

As everyone in the field of special education is keenly aware, on March 22, 2017, the Supreme Court unanimously decided the Endrew F. case and updated its substantive legal standard for determining whether FAPE has been provided to a child with a disability, which had first been articulated in its Rowley decision in 1982. The standard, the Court said, requires a reviewing court (and due process hearing officers) to determine “whether the IEP is reasonably calculated to enable the child to make progress in light of the child’s circumstances.” The Court specifically rejected the Tenth Circuit Court of Appeals’ application of a FAPE standard that required “merely more than de minimis” educational benefit.

In the article that I wrote for this newsletter last year summarizing the Supreme Court’s ruling, I concluded it by noting that it would be important to watch how courts rule after Endrew and in light of its updated FAPE standard. For a year now, we have been watching many courts across the country issue orders addressing the provision of FAPE and applying Endrew’s FAPE standard to the individual circumstances presented in those cases. But I was particularly interested in how the federal district court judge in Colorado—the one who originally found in 2014 that Endrew had received FAPE—would rule when re-visiting the case on remand.

On February 12, 2018, U.S. District Judge Lewis T. Babcock re-visited his initial decision in favor of the school district and found that, in light of the Supreme Court’s new standard and its rejection of the “merely more than de minimis” standard, the school district had not provided Endrew with FAPE. In essence, Judge Babcock found that while the “minimal progress” Endrew made in his educational program provided by the school district may have been sufficient under the Tenth Circuit’s former standard, it was clearly not sufficient in light of the Supreme Court’s new one.

In finding that Endrew was denied FAPE, Judge Babcock pointed out that, in his previous ruling, he had found that while additions and modifications made to Endrew’s IEP objectives from year to year “did not reveal immense educational growth, they were sufficient to show a pattern of, at the least, minimal progress.” This was evidenced, he said, by “small advances or alterations” to Endrew’s IEP objectives starting with the second grade IEP through the proposed objectives contained in the April 2010 IEP offered by the district for Endrew’s fifth grade year. For example, the Judge noted that he had found that while some of the math objectives had been “carried over from year to year and some were only slightly modified,” it was clear that the objectives were increased over time and, as a result, he had ruled that the pattern of Endrew’s IEPs showed that he had received “some educational benefit” under the Tenth Circuit’s standard based “only a basic floor of opportunity.”

Looking now through the lens of the Supreme Court’s standard on remand, Judge Babcock found that the “minimal progress” revealed in Endrew’s educational plans was insufficient to show that the April 2010 IEP offered by the school district at the time the parents placed him in private school was reasonably calculated to enable him to make progress. Judge Babcock noted that “Endrew’s past educational and functional progress—as evidenced by the changes to his yearly IEPs after second grade—was minimal at best,” where those changes consisted of “only updates and minor or slight increases in the objectives, or carrying over the same goals from year to year, or abandonment if they could not be met.” Judge Babcock concluded that “[t] he April 2010 IEP was clearly just a continuation of the District’s educational plan that had previously only resulted in minimal academic and functional progress.” While that may have been sufficient under the Tenth Circuit’s former FAPE standard, it is not under the Supreme Court’s current one.

Judge Babcock was also concerned about the school district’s response to Endrew’s significant behavioral issues. Judge Babcock agreed that the minimal progress evidenced in Endrew’s educational plans, culminating in the April 2010 IEP, was “clearly impacted by the District’s lack of success in providing a program that would address Endrew’s maladaptive behaviors.”

While Judge Babcock had previously ruled that FAPE had been provided because the school district had been attempting to address Endrew’s behavioral issues with a behavior plan that was “in progress” at the time that Endrew’s parents withdrew him from the school district, his ruling changed in light of the Supreme Court’s FAPE standard. Indeed, Judge Babcock concluded that the district’s failure to develop a formal behavior intervention plan or properly address Endrew’s behaviors that had clearly disrupted his access to educational progress beginning in his second grade year did now “impact the assessment of whether the educational program it offered to Endrew was or was not reasonably calculated to enable him to make progress in light of his circumstances.” Judge Babcock concluded that “the District’s inability to properly address [Endrew’s] behaviors that, in turn, negatively impacted his ability to make progress on his educational and functional goals, also cuts against the reasonableness of the April 2010 IEP.” Accordingly, Judge Babcock reversed the Administrative Law Judge’s original decision and held that Endrew’s parents are entitled to reimbursement for the private school placement.

So, what does this ruling mean for schools and their provision of FAPE to their students with disabilities? In other words, what are the specific “take aways” from it? For one, if there were or still are any school districts subscribing to a FAPE standard akin to “merely more than de minimis” educational benefit or progress, those school districts are clearly going to have to “up their game.” Second, in cases where a child’s annual IEP goals are recycled from year to year with little change or adjustment, and the district is not able to clearly demonstrate that the child has made more than minimal progress during those years, the district is not going to be able to meet the Endrew Court’s standard for FAPE. Third, service providers must address behavioral issues expeditiously and, where current behavioral strategies and interventions are not showing success and demonstrable progress, different approaches must be developed and implemented, including the timely development of behavior intervention plans.

In conclusion, I will repeat what I recommended in my article last year, which remains unchanged: In general, I recommend that all service providers continue to be trained to develop appropriate IEPs that contain present levels of performance that are based upon current and comprehensive evaluative and other relevant data; ensure that annual IEP goals are appropriate (ambitious and challenging, but reasonable) and, now more than ever, measurable; and that progress is continuously monitored on annual goals (and objectives/benchmarks where applicable) to ensure that data are available to demonstrate that progress has been made. Where progress monitoring indicates that sufficient progress is not being made, service providers must ensure that IEP teams are convened to address why progress is not being made and what additional assessments or services may be needed under the circumstances.