Department of Education Issues Q&A on FAPE Decision

Last week, the United States Department of Education issued Questions & Answers addressing the Supreme Court’s decision in Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017).  In Endrew F., the Supreme Court for the first time in over thirty years considered the legal standard for a free and appropriate public education (FAPE).  Endrew F. held that, to provide FAPE, a school district must offer a child an Individualized Education Program (IEP) that aims to enable the child to make progress that is appropriate in light of her circumstances.  Endrew F. then provided detailed guidance about what this standard means and how to apply it.  For example, the decision clarified that a child’s “circumstances” include the child’s “potential for growth.”  Endrew F. and the Department of Education’s Questions & Answers are important developments for students in Philadelphia and across the country.

Here are the main points from the Department of Education’s Questions & Answers:

Q. How is FAPE defined in the IDEA?

A. Under the IDEA, FAPE is a statutory term.  It is defined to include special education and related services that (1) are provided at public expense, under public supervision and direction, and without charge; (2) meet the standards of the State educational agency (SEA), including IDEA Part B requirements; (3) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (4) are provided in conformity with an IEP that meets the requirements of [federal regulations.]  Further, each child with a disability is entitled to receive FAPE in the least restrictive environment (LRE).

Q. Prior to Endrew F., what did the [Supreme] Court say about the standard for FAPE?

A. Prior to Endrew F., courts relied on the landmark case Board of Education of Hendrick-Hudson Central School District v. Rowley, 458 U.S. 176 (1982).  In Rowley, the Court held that Amy Rowley, a child with a disability involved in the case, would receive FAPE if her IEP was “reasonably calculated to enable the child to achieve educational benefits.”  In Rowley, the Court did not establish any one test for determining educational benefit provided to all children covered by the IDEA.  The Court did, however, discuss what appropriate progress would be for a child with a disability who was performing above average in the general education classroom with the supports included in her IEP.  In Rowley, the Court emphasized that an IEP had to be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

Q. How did Endrew F. clarify the standard for determining FAPE and educational benefit?

Q. What does “progress appropriate in light of the child’s circumstances” mean?

A. The essential function of an IEP is to provide meaningful opportunities for appropirate academic and functional advancement, and to enable the child to make progress.  The expectations of progress in the IEP must be appropriate in light of the child’s unique circumstances.  This reflects the focus on the individualized needs of the particular child that is at the core of the IDEA.  It also reflects States’ responsibility to offer instruction “specially designed” to meet a child’s unique needs through an IEP.

While the [Supreme] Court did not specifically define “in light of the child’s circumstances,” the decision emphasized the individualized decision-making required in the IEP process and the need to ensure that every child should have the chance to meet challenging objectives.  The IDEA’s focus on the individual needs of each child with a disability is an essential consideration for IEP Teams.  Individualized decision-making is particularly important when writing annual goals and other IEP content because “the IEP must aim to enable the child to make progress.”  For example, the Court stated that the IEP Team, which must include the child’s parents as Team members, must give “careful consideration to the child’s present levels of achievement, disability, and potential for growth.”