To Infinity and Beyond
2/27/2018
To Infinity and Beyond – The Rediscovery of Potential in Endrew F. Rich Weinfeld Executive Director, Weinfeld Education Group www.weinfeldeducationgroup.com Michael J. Eig, Esq. Paula A. Rosenstock, Esq. Michael J. Eig and Associates, P.C. www.lawforchildren.com Diamonds in the Rough March 10, 2018 1
1
2/27/2018
The preamble of the IDEA makes clear that the purpose of the Act 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 meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C § 1400(d)(1)(A).
In 1975, Congress passed the first iteration of the Individuals with Disabilities Education Act, the Education for All Handicapped Children Act. The focus of the Act was on providing access to a Free Appropriate Public Education or FAPE to all eligible students. In 1982, the Supreme Court interpreted the IDEA for the first time in Rowley, finding that in order to be appropriate, education under the IDEA must be "sufficient to confer some educational benefit" or provide a "basic floor of opportunity.” 4
2
2/27/2018
It does not have to be the best or provide maximization of educational benefit. It also cannot be the least or what we might call negligible benefit. The Court did not address consideration of progress.
Between 1982 and 2017, courts tried to interpret the Rowley standard leading to years of litigation and conflicting holdings.
Many circuits found that educational benefit meant, “merely more than de minimis” or, “barely more than trivial.”
Others, such as the 3rd and 6th Circuits, used a higher standard. Appropriate means: “great deal more than negligible benefit."
3
2/27/2018
Basic Floor of Opportunity.
Give opportunities to make progress but no guarantee of actual progress?
Meaningful Benefit – what is meaningful to one, may not be to another.
Rowley Standard Revisited: Endrew F. v. Douglas County School District ■
In Rowley, the Supreme Court considered a student in the general education setting advancing from grade to grade, and did not consider students in other settings. The Supreme Court finally deals with that “more difficult problem” in Endrew F.
■
An appeal from the 10th Circuit which found that a student was making sufficient progress based on a merely more than de minimis test.
■
Who is Endrew F.? What was his profile?
4
2/27/2018
The Court clarified that its Endrew F. ruling is consistent with, but clarifying of, its Rowley standard. But the Court made its impact quire clear: its Endrew F. standard is “markedly more demanding than the ‘merely more than de minimis’ test.”
Knowledge- Your Child’s Rights From Supreme Court in Endrew F. Expectation of meaningful progress: “A school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” “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.” “The goals may differ but every child should have the chance to meet challenging goals.”
5
2/27/2018
Endrew F. Standard: What is NOT Appropriate “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.’”
Creation of IEPs Under Endrew F. ■
The “educational program must be appropriately ambitious in light of [the student’s] circumstances.”
■
“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.”
6
2/27/2018
7
2/27/2018
3
“Every child has the right to realize his or her unique potential.”
8
2/27/2018
“A focus on the particular child is at the core of the IDEA.”
“The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created."
The Court emphasizes that an, “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.”
9
2/27/2018
What makes a child unique?
How do we make the program appropriately ambitious?
The Court emphasizes that to do so, we must consider the student’s potential for growth.
We must consider strengths and challenges.
Impact on twice-exceptional students!
YES!! “This fact-intensive exercise [the IEP process] will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.”
10
2/27/2018
“The Act vests these (school) officials with responsibility for decisions of critical importance to the life of a disabled child.”
“A reviewing court may fairly expect those (school) authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”
11
2/27/2018
Endrew F. Remand ■
The Supreme Court remanded the case for further proceedings.
■
District Court in Colorado hears case on remand, and issues a new Memorandum Opinion and Order on February 12, 2018.
■
Court reverses its prior finding upon application of Endrew F.
Upon application of the new standard, the court finds that Endrew’s educational plan was not reasonably calculated “to enable Petitioner to make progress, even in light of his unique circumstances, based on the continued pattern of unambitious goals and objectives of his prior IEPs.”
12
2/27/2018
IEP that contains “only updates and minor or slight increases in the objectives, or carrying over the same goals from year to year,” is insufficient.
Similarly, abandonment of goals when they cannot be met is not appropriate.
On remand, Court finds relevant, “the District’s inability to properly address Petitioner’s behaviors that, in turn, negatively impacted his ability to make progress on his educational and functional goals.”
13
2/27/2018
Parents have always been part of the IEP process. Endrew F. stresses the importance of their participation.
While courts will still give deference to school systems, under Endrew F. the school officials must now offer cogent and responsive explanations to justify their decisions. Must be able to explain why.
Purpose of the IEP: "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.” Focus on the Individual Child: “A focus on the particular child is at the core of the IDEA.” “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created."
14
2/27/2018
Summarizing Your Child’s Rights Under Endrew F. Child Must Make Meaningful Progress: “A school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” This does not mean goals that repeat from year to year. The goals must be challenging and ambitious.
The Impact of Endrew F. in the Courts ■
M.L. v. Smith, 867 F.3d 487: Fourth Circuit confirmed that its prior FAPE standard was similar to the Tenth Circuit’s.
■
M.C. v. Antelope Valley Union High School, 858 F.3d 1189: Ninth Circuit confirms that a school must implement an IEP that remediates and accommodates the child’s disabilities so that the child can make progress in the general education curriculum, “taking into account the progress of his non-disabled peers and the child’s potential.”
15
2/27/2018
Final Words “Not every child has an equal talent or an equal ability or an equal motivation, but children have the equal right to develop their talent, their ability, and their motivation.” John F. Kennedy
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3 1
Your Questions
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16
To Infinity and Beyond – The Rediscovery of Potential in Endrew F. Rich Weinfeld Executive Director, Weinfeld Education Group www.weinfeldeducationgroup.com Michael J. Eig, Esq. Paula A. Rosenstock, Esq. Michael J. Eig and Associates, P.C. www.lawforchildren.com Diamonds in the Rough March 10, 2018 1
1
2/27/2018
The preamble of the IDEA makes clear that the purpose of the Act 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 meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C § 1400(d)(1)(A).
In 1975, Congress passed the first iteration of the Individuals with Disabilities Education Act, the Education for All Handicapped Children Act. The focus of the Act was on providing access to a Free Appropriate Public Education or FAPE to all eligible students. In 1982, the Supreme Court interpreted the IDEA for the first time in Rowley, finding that in order to be appropriate, education under the IDEA must be "sufficient to confer some educational benefit" or provide a "basic floor of opportunity.” 4
2
2/27/2018
It does not have to be the best or provide maximization of educational benefit. It also cannot be the least or what we might call negligible benefit. The Court did not address consideration of progress.
Between 1982 and 2017, courts tried to interpret the Rowley standard leading to years of litigation and conflicting holdings.
Many circuits found that educational benefit meant, “merely more than de minimis” or, “barely more than trivial.”
Others, such as the 3rd and 6th Circuits, used a higher standard. Appropriate means: “great deal more than negligible benefit."
3
2/27/2018
Basic Floor of Opportunity.
Give opportunities to make progress but no guarantee of actual progress?
Meaningful Benefit – what is meaningful to one, may not be to another.
Rowley Standard Revisited: Endrew F. v. Douglas County School District ■
In Rowley, the Supreme Court considered a student in the general education setting advancing from grade to grade, and did not consider students in other settings. The Supreme Court finally deals with that “more difficult problem” in Endrew F.
■
An appeal from the 10th Circuit which found that a student was making sufficient progress based on a merely more than de minimis test.
■
Who is Endrew F.? What was his profile?
4
2/27/2018
The Court clarified that its Endrew F. ruling is consistent with, but clarifying of, its Rowley standard. But the Court made its impact quire clear: its Endrew F. standard is “markedly more demanding than the ‘merely more than de minimis’ test.”
Knowledge- Your Child’s Rights From Supreme Court in Endrew F. Expectation of meaningful progress: “A school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” “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.” “The goals may differ but every child should have the chance to meet challenging goals.”
5
2/27/2018
Endrew F. Standard: What is NOT Appropriate “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.’”
Creation of IEPs Under Endrew F. ■
The “educational program must be appropriately ambitious in light of [the student’s] circumstances.”
■
“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.”
6
2/27/2018
7
2/27/2018
3
“Every child has the right to realize his or her unique potential.”
8
2/27/2018
“A focus on the particular child is at the core of the IDEA.”
“The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created."
The Court emphasizes that an, “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.”
9
2/27/2018
What makes a child unique?
How do we make the program appropriately ambitious?
The Court emphasizes that to do so, we must consider the student’s potential for growth.
We must consider strengths and challenges.
Impact on twice-exceptional students!
YES!! “This fact-intensive exercise [the IEP process] will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.”
10
2/27/2018
“The Act vests these (school) officials with responsibility for decisions of critical importance to the life of a disabled child.”
“A reviewing court may fairly expect those (school) authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”
11
2/27/2018
Endrew F. Remand ■
The Supreme Court remanded the case for further proceedings.
■
District Court in Colorado hears case on remand, and issues a new Memorandum Opinion and Order on February 12, 2018.
■
Court reverses its prior finding upon application of Endrew F.
Upon application of the new standard, the court finds that Endrew’s educational plan was not reasonably calculated “to enable Petitioner to make progress, even in light of his unique circumstances, based on the continued pattern of unambitious goals and objectives of his prior IEPs.”
12
2/27/2018
IEP that contains “only updates and minor or slight increases in the objectives, or carrying over the same goals from year to year,” is insufficient.
Similarly, abandonment of goals when they cannot be met is not appropriate.
On remand, Court finds relevant, “the District’s inability to properly address Petitioner’s behaviors that, in turn, negatively impacted his ability to make progress on his educational and functional goals.”
13
2/27/2018
Parents have always been part of the IEP process. Endrew F. stresses the importance of their participation.
While courts will still give deference to school systems, under Endrew F. the school officials must now offer cogent and responsive explanations to justify their decisions. Must be able to explain why.
Purpose of the IEP: "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.” Focus on the Individual Child: “A focus on the particular child is at the core of the IDEA.” “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created."
14
2/27/2018
Summarizing Your Child’s Rights Under Endrew F. Child Must Make Meaningful Progress: “A school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” This does not mean goals that repeat from year to year. The goals must be challenging and ambitious.
The Impact of Endrew F. in the Courts ■
M.L. v. Smith, 867 F.3d 487: Fourth Circuit confirmed that its prior FAPE standard was similar to the Tenth Circuit’s.
■
M.C. v. Antelope Valley Union High School, 858 F.3d 1189: Ninth Circuit confirms that a school must implement an IEP that remediates and accommodates the child’s disabilities so that the child can make progress in the general education curriculum, “taking into account the progress of his non-disabled peers and the child’s potential.”
15
2/27/2018
Final Words “Not every child has an equal talent or an equal ability or an equal motivation, but children have the equal right to develop their talent, their ability, and their motivation.” John F. Kennedy
31
3 1
Your Questions
3 2
16
