Embed Size (px)
Citation preview
Implications of the Supreme
Court’s Endrew F. Decision
Rud Turnbull ([email protected])
Ann Turnbull ([email protected])
Inclusion Institute
University of North Carolina at Chapel Hill
Chapel Hill, NC
May 8, 2018
IDEA Overview
First Finding of Fact--
“Disability is a natural part of the human experience
and in no way diminishes the right of individuals to
participate in or contribute to society. Improving
educational results for children with disabilities is an
essential element of our national policy of ensuring
equality of opportunity, full participation, independent
living, and economic self-sufficiency for individuals
with disabilities.”
2
• Right to have opportunities in life
equal to those of people without
disabilities – equal protection
• Right to be included in all aspects
of community life and to be
protected from discrimination and
segregation
• Right for one’s education to
be a means for economic
productivity
• Right to autonomy, namely,
self-determination, expressed
as making choices about how
to live one’s life
Equality of Opportunity
Full Participation
Independent Living
Economic Self-
sufficiency
IDEA
Outcomes
3
Rowley – Facts (1982)
• Amy Rowley received a special tutor, hearing aids,
and speech therapy
• She was advancing from grade-to-grade at
elementary-school level
• Parents requested an interpreter (related services)
4
Rowley – Parents’ Argument
• Amy’s Parents
o “…opportunities to achieve academic access, attain self-
sufficiency, and contribute to society that are substantially
equal to the opportunities afforded children without disabilities”
• IDEA
o Equality of opportunity
o Full participation
o Independent living
o Economic self-sufficiency5
Rowley – Supreme Court Decision
• Issue: Right to interpreter (related service) as
element of appropriate education
• Court’s substantive standard – “basic floor of
opportunity” consisting of “access to specialized
instruction and related services which are
individually designed to provide educational
benefit to the handicapped child.”
6
Endrew F. – Facts (2017)
• Diagnosed with autism at age 2
• Enrolled in local public school
• Academic and functional progress “essentially stalled”
(1st-4th grades)
• Problem behavior escalated (3rd-4th grades)
• Mother summoned to help, not a behavior specialist
• Enrolled in private school in 5th grade, age 11
• Has made progress since then, now 18
7
Endrew F. – Parents’ Argument
• Endrew’s Parents
o Appropriate education – “…opportunities to contribute to
society that are substantially equal to the opportunities
afforded children without disabilities” (same “equal to
opportunities” claim as in Rowley)
• IDEA
o Equality of opportunity
o Full participation
o Independent living
o Economic self-sufficiency8
Endrew F.’s Path to Supreme
Court
• Due process hearing – lost, 2012
• State review—lost, 2012
• Federal district court – lost, 2014
• Federal court of appeals – lost, 2015
o Tenth Circuit Court interpretation –
“…educational benefit that is merely more than
de minimis”
9
Supreme Court Rejects Both
Arguments • Parents argued for equal opportunities
o Court rejected – “Unworkable, requiring impossible
measurements and comparisons” (comparable to Rowley)
• LEA argued for “merely more than de minimis”
o Court rejected – a child “…can hardly be said to have been
offered an education at all…. (R)eceiving instruction that aims so
low would be tantamount to ‘sitting idly…awaiting the time when
they were old enough to drop out’” (stronger than Rowley)
o LEA loses on tuition and other costs, and attorney fees, Feb. 2018
o Briefs on amounts, Mar. 201810
Endrew F. Standard – Supreme
Court Decision
• Court’s standard
o “Markedly more demanding” than 10th Circuit
o “The IDEA demands more (than de minimis). It requires an
educational program reasonably calculated to enable a child
to make progress appropriate in light of the child’s
circumstances.”
• Rowley-plus, middle path with more traction – “heftier” but not
the sought-after “equal to non-disabled students” standard
11
Four Key Components – All Students
• “The IDEA demands more. It requires an educational
program reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances”
o Educational program
o Reasonably calculated
o Child’s circumstances
o Progress appropriate for the child
12
1. Educational Program
• IDEA…“requires an educational program reasonably
calculated to enable a child to make progress appropriate in
light of the child’s circumstances”
• Process definition from Rowley
o Nexus of decisions on evaluation, appropriateness, and
environment
o “A focus on the particular child is at the core of IDEA”
o “The IEP is the centerpiece of the statute’s education
delivery system”
13
• Progress definition – new in Endrew F.
“Crafting an appropriate education” is a “fact-intensive
exercise” that results in “a plan” focused on “student
progress”
14
1. Educational Program
2. “Reasonably Calculated”
• The IDEA “requires an educational program reasonably
calculated to enable a child to make progress appropriate
in light of the child’s circumstances”
• Definition of reasonably calculated
o Carefully considered -- calculated
o Providing reasons/explanations to justify decisions
• IDEA’s requirements for reasonable calculation
o Role of parents
o Role of research-based practice
15
IDEA – Role of Parents in
Reasonable Calculation
• Four components of principle of parent participation – family
as core unit of society, participatory democracy in schools,
accountability of educators, and responsibility of a team
• “The IEP meeting serves as a communication vehicle
between parents and school personnel, and enables them
as equal participants to jointly decide what the child’s
needs are, what services will be provided to meet those
needs, and what the anticipated outcomes will be.” (Federal
Register, 1981, p. 5462)
16
Endrew F. – Role of Parents in
Reasonable Calculation
• “The ‘reasonably calculated’ qualification reflects a recognition
that crafting an appropriate program of education requires a
prospective judgment by school officials. The Act
contemplates that this fact-intensive exercise will be informed
not only by the expertise of school officials, but also by
the input of the child’s parents or guardians.”
• Compare “judgment” and “expertise” of school officials with
“input” of parents and guardians – doctrine of deference to
professional judgment weakens parents’ roles (but see
“collaboration” in process definition in Endrew F.)
17
Role of Parents in Reasonable
Calculation
• “We will not attempt to elaborate on what ‘appropriate’ progress will
look like from case to case. It is in the nature of the Act and standard
that we adopt to resist such an effort…this absence of a bright-line
rule, however, should not be mistaken for ‘an invitation for the courts
to substitute their own notions of sound educational policy for those of
the school authorities which they review’…At the same time,
deference is based on the application of expertise and the exercise
of judgment by school authorities. The Act vests these officials
with responsibility for decisions of critical importance to the life
of a disabled child.”
• The “doctrine of deference” about education does not exclude parent
collaboration and judgment. It may, however, limit them,
problematically. 18
IDEA – Role of Research
• IDEA mentions research or scientifically-based
strategies 76 times; regulations mention them 160 times
• IDEA identifies “an insufficient focus on replicable
research on proven methods of teaching and learning”
as one of two factors that have “impeded” IDEA’s
implementation
• Without identifying the research on which “school
authorities” base their “cogent and responsive
explanation,” educators arguably fail the “reasonably
calculated” standard – rule of professional defensibility
19
3. “Child’s Circumstances”
• “The IDEA…requires an educational program
reasonably calculated to enable a child to make
progress in light of the child’s circumstances.”
20
IDEA – Child’s Circumstances
• Nondiscriminatory evaluation
o To identify if the student has a disability (eligibility)
o To identify the nature of special education and related
services
• IEP requirement for present levels of performance
o Must address academic and functional strengths and needs
o Must address how the disability affects the student’s
involvement and progress in the general curriculum
21
IDEA – Specific Circumstances
• IEP requirement for five special factors to be considered
o Positive behavior support and other behavior strategies
o Language needs of students with limited English
proficiency
o Instructional aspects of Braille
o Communication needs, especially for children who are
deaf or hard of hearing
o Assistive technology devices and services
22
Endrew F. – Child’s
Circumstances
• Must be “careful consideration” of the child’s
o Levels of achievement
oDisability
o Potential for growth (compare NDE and
IEP domains)
• Court did not require consideration of family
or community circumstances; environments
are within scope of consideration: what is
the professional standard and what are the
related services (nursing, social work, etc.) 23
4. Progress Appropriate for the Child
• “The IDEA…requires an educational program
reasonably calculated to enable a child to make
progress appropriate in light of child’s circumstances”
• IDEA creates right to an appropriate education
• Rowley requires opportunity to benefit
• By contrast, Endrew F. requires progress appropriate to
child’s circumstances (slides 20-23)
24
IDEA – Progress Requirements
• IEP requirement for present levels of performance
o Must address academic achievement and functional
performance (compare evaluation domains: functional,
developmental, academic, behavioral)
o Must address how the disability affects the student’s
involvement and progress in the general curriculum
• IEP requirement for documenting progress
o How progress will be measured in meeting goals
(objectives for students taking alternative assessments)
o Schedule of reports (quarterly or other)
25
Progress and Placement:
Full Integration
• Endrew F. re-affirms Rowley
o IEP “typically should…be reasonably calculated to
enable the child to achieve passing marks and advance
grade-to-grade” (citing Rowley)
o “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.”
26
Progress and Placement:
Not Full Integration
• Endrew F. strengthens Rowley
o “If that (namely, earning passing grades that justify
grade-to-grade advancement) is not a reasonable
prospect for a child, his IEP need not aim for grade level
advancement. But his educational program must be
appropriately ambitious in light of his circumstances,
just as advancement from grade to grade is
appropriately ambitious for most children in the regular
classroom.”
27
Not Full Integration – “Markedly
More Demanding”
• “…this standard is markedly more demanding than the “merely
more than de minimis” test applied by the Tenth Circuit. It cannot
be the case that the Act typically aims for grade level advancement
for children with disabilities who can be educated in the regular
classroom, but is satisfied with barely more than de minimis
progress for those who cannot. 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’” (quoting Rowley, p. 14).28
Right of All Students Regardless of
Extent of Integration
• “The goals (for these two types of children) may differ, but every
child should have the chance to meet challenging objectives” (p. 14)
• Three components of general education, with full or partial
integration into each
o Academic
o Extracurricular activities
o Other school activities
• Thus, “ambitious” and “challenging objectives” apply in all three
components of general education
29
Endrew F. – Justifying Appropriately
Ambitious Education and Challenging
Objectives• “Endrew did much better at Firefly (the private school).
The school developed a ‘behavioral intervention plan’
that identified Endrew’s most problematic behaviors and
set out particular strategies for addressing them…Firefly
also added heft to Endrew’s academic goals. Within
months, Endrew’s behavior improved significantly,
permitting him to make a degree of academic progress
that had eluded him in public school.”
30
Endrew F. – Four Gold Nuggets
• Emphasizes that “progress” (not simply “benefit”) is the measure
of appropriateness
• Requires those who develop the IEP to take into account the
student’s “circumstances,” including the student’s “potential for
growth”
• Requires an “appropriately ambitious” program
o Arguably for all students
o Inarguably for students who are not fully integrated into general
education classes and making grade-to-grade progress
• Declares that every child should have the chance to meet
“challenging objectives”31
Endrew F.– Could/Should
Have…
• Supported his parents’ basic argument that Endrew has a
right to opportunities substantially equal to those of children
without disabilities, in order to achieve IDEA policy goals
of full participation, independent living, and economic self-
sufficiency
• Explicitly affirmed IDEA’s requirement that educators must
use research as the basis for making reasonable
calculations about the nature of appropriately ambitious
programs, challenging objectives, and students’ potential for
growth32
Endrew F. – Could/Should
Have…
• Explicitly declared that parents on the
educational team (including teachers and not
just school officials/authorities) should be equal
partners in making joint decisions to comply with
Endrew F. and ensure appropriate progress
• Strengthened the LRE “preference” to be a
presumption
33
Endrew F.’s Practice
Implications
• Keep the four national goals in mind—equality of
opportunity, full participation, independent living,
and economic self-sufficiency
• Address all four IDEA domains—cognitive,
behavioral, functional, developmental
• Determine appropriately ambitious
• Determine challenging objectives
• Monitor progress comprehensively and regularly
34
Endrew F.’s Practice
Implications
• Develop a trusting partnership with parents
o “Public agencies may find it useful to examine current practices
for engaging and communicating with parents throughout the
school year as IEP goals are evaluated and the IEP Team
determines whether the child is making progress toward IEP
goals…Parents and other IEP Team members should collaborate
and partner to track progress appropriate to the child’s
circumstances.” (U.S. Department of Education, 2017)35
Endrew F.’s Practice
Implications
• If the partnership breaks down, ask why and seek
common ground
• Consider the urgency of educating each child
effectively and now
• Convert the LRE “preference” to be a strong
presumption in favor of inclusion
36
• Opportunities to engage
in income producing work
that contributes to
household
• Opportunities to fully
participate in decision-
making and to experience
autonomy in making
choices
• Opportunities in life similar to
others without disabilities
• Opportunities to be included
in all aspects of the
community and protected
from attempts at segregationEquality of Opportunity
Full Participation
Independent Living
Economic Self-
sufficiency
IDEA
Outcomes
37
