The United States Supreme Court issued a decision on March 22nd about the Individuals with Disabilities Act ("IDEA") holding that "a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas County School Board, (March 22, 2017), Slip Op. at page 11. The effect of this decision on New Hampshire schools will be determined as courts apply this standard as they review future challenges to New Hampshire schools' IEP plans. Early analysis suggests that the impact may not be substantial. New Hampshire is in the jurisdiction of the First Circuit Court of Appeals. In a July 2016 case the First Circuit articulated the standard it has adopted as "whether the IEP is 'reasonably calculated to confer a meaningful educational benefit." Ms. S. v. Regional School Unit 72, 829 F.3d 95 (1st Cir. 2016) (citing D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012)). Therefore, the Supreme Court's decision will require changes in New Hampshire only to the extent the courts determine that an IEP "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances" requires more than an IEP that is "reasonably calculated to confer a meaningful educational benefit."
The Endrew F. case arose from Colorado and involved a student who was diagnosed with autism at age two. Endrew attended school in the Douglas County School District from preschool through fourth grade. He had an IEP each year. Endrew's parents believed that his "academic and functional progress had essentially stalled: Endrew's IEP largely carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress . . . ." Slip Op. at 7. Endrew's parents withdrew him from public school and enrolled him in a private school that specializes in educating children with autism. Endrew did much better at that school. Endrew's parents met with the public school, which presented a new IEP. The parents believed the new IEP "did not differ meaningfully from the plan in his fourth grade IEP" despite his experience in the private school that suggested he would benefit from a different approach. The parents sought reimbursement for his tuition at the private school, ultimately bringing this case which made its way to the United States Supreme Court. Id.
Colorado is in the jurisdiction of the Tenth Circuit Court of Appeals, which had interpreted the IDEA to "mean that a child's IEP is adequate as long as it is calculated to confer an 'educational benefit that is merely more than de minimus." Slip Op. at 8 (internal quotes omitted). The Supreme Court rejected this standard. The Court observed that "the IDEA requires participating States to educate a wide spectrum of handicapped children, and the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between." Slip Op. at 12. The Supreme Court's holding recognized that it was not providing a bright-line rule. It cautioned this "should not be mistaken for an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Slip Op. at 16. The Court went on to say "A reviewing court may fairly expect those 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." Slip Op. at 16.
Please let us know if you have any questions regarding this decision. The New Hampshire School Board's Association will continue to monitor the developments of the law in this important area and will alert you to significant developments.