Lynn Brown Authors, "More Than a Year After the U.S. Supreme Court’s Decision in Endrew F., Little Has Changed for Parents of Children in Special Education in New York"

When the U.S. Supreme Court issued its 2017 decision in Endrew F. ex rel. Joseph F. v. Douglas County School Dist., __ U.S.__, 137 S. Ct. 988 (2017), it was hailed as an important step forward for students receiving special education. In fact, however, at least in New York, Endrew F. appears to have had little effect on the courts’ analysis as to whether a school district has provided a special education student with a free, appropriate public education (known as “FAPE”), as required by the applicable federal statute, the Individuals with Disabilities Education Act (“IDEA”).

Before Endrew F., it was well established that a school district had to provide a special education student with an individualized educational program (“IEP”) that was “appropriate,” meaning that it was “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034 (1982). In Endrew F., the U.S. Supreme Court purported to give some guidance on what that meant, holding that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” 137 S. Ct. at 1001. Rejecting the contention that an IEP was sufficient where the student had received an educational benefit that is “merely more than de minimis” (id. at 1001), the Court found that “it cannot be the case that the [IDEA] 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.” Id. at 1000-1001. Rather, the Court held, “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.” Id. at 1001. Still, however, the IEP must only be “reasonable,” not “ideal.” Id. at 999. Further, an educational program need not include “grade level advancement” if such progress is not “a reasonable prospect” for the particular child. Id. at 1000. Moreover, in making the assessment as to whether an IEP passes muster, the U.S. Supreme Court reminded the lower courts that they are not permitted “to substitute their own notions of sound educational policy for those of the school authorities which they review.” Id. at 1001(citation omitted).

While the decision in Endrew F. was lauded as a watershed moment for special education students, in fact, that has not been the case in New York. To the contrary, the Second Circuit and the federal courts within this Circuit have repeatedly held, “[p]rior decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.” See, e.g., F.L., individually and on behalf of R.C.L., 735 Fed. Appx. 38, 41, n.3 (Mem) (2d Cir. Aug. 24, 2018); Mr. P. v. West Hartford Bd. of Educ., 885 F.3d 735, 757 (2d Cir. 2018); E.E., individually and on behalf of G.E. v. New York City Dep’t of Educ., 2018 WL 4636984, at *7 (S.D.N.Y. Sept. 26, 2018). Thus, the courts have determined that Endrew F. imposed no higher standard than the federal courts in New York were already imposing upon school districts when crafting an IEP, and, therefore, did nothing to change the rules applicable to school districts.

As a practical matter, this means that the courts remain deferential to school districts’ Committee on Special Education (“CSE”), independent hearing officers (“IHOs”) and the New York State Commissioner of Education (sometimes referred to as the “State Review Officer” or “SRO”) despite the U.S. Supreme Court’s decision in Endrew F. Although parents have relied on Endrew F. to claim that IEPs designed for their special education children are not “appropriate” as their children have not made the necessary advancement, since Endrew F, the courts in the Second Circuit still remain reluctant to find IEPs deficient on that basis. See, e.g., J.R. v. New York City Dep’t of Educ., 2018 WL 4664086 (2d Cir. Sep’t 27, 2018) (summary order) (although parents claimed that IEP was not reasonably calculated to confer educational benefits, the Second Circuit rejected that contention, finding it owed the state deference in that regard and found student with speech and language impairments received FAPE); G.E., 2018 WL 4636983, at *4 (rejecting parent’s claims that school district denied student with autism FAPE by failing to conduct a functional behavioral analysis, implement a behavioral intervention plan, or identify temporary transitional support services to new classroom teacher, and allegedly predetermined what was in the IEP, developed an IEP that recommended an inappropriate program and goals, failed to provide a 1:1 aide, prescribe the appropriate teaching methodology, or adequately address the student’s sensory and management needs; impartial hearing officer and SRO applied the proper legal standard).

These and other cases decided after Endrew F. demonstrate that it remains an uphill battle for parents to demonstrate that a school district has denied a child FAPE. An IEP is likely to be deemed to provide FAPE as long as the school district can show that it was created after due consideration of all relevant evidence concerning the student’s functioning and needs. Furthermore, because IEPs continue to be judged prospectively, i.e., on the basis of what is known about the student at the time it is crafted, a parent may not challenge an IEP based upon speculation that, once implemented, an IEP may not, in fact, meet a student’s needs. Rather, it remains the case that an IEP may have to be implemented, and actually shown to be inappropriate (meaning that a child fails to progress, or even keep up with the curriculum), before a court is willing to find that an IEP deprived a student of FAPE. See, e.g., M.E. and T.E., individually and on behalf of K.E. v. New York City Dep’t of Educ., 2018 WL 582601 (S.D.N.Y. Jan. 26, 2018) (parents failed to demonstrate that the IEP developed by the CSE was inadequate and the district’s proposed placement was insufficient to meet their child’s sensory needs; SRO’s decision was thorough and well-reasoned); J.P., on behalf of their Son, J.P. v. City of New York Dep’t of Educ., 717 Fed. Appx. 30, 32 (2d Cir. 2017) (parents did not establish that IEP was procedurally or substantively inadequate; as the “SRO considered the record as a whole and explicitly referred to materials that J.P.’s parents now suggest were ignored,” and “the CSE heard [the parents’] objections, considered materials they submitted, and convened a second meeting to address their objections and explain its reasoning”).

Thus, while under Endrew F. more than de minimus progress must be the goal of an IEP, that case seems to have had no practical effect in New York. Accordingly, a parent who has concerns that the IEP developed for his child at the CSE meeting will not provide FAPE should ensure that a record is made at the CSE meeting regarding (a) what evaluations were performed, (b) whether the CSE has considered a student’s current level of functioning and needs, and (c) what evidence the CSE considered (or failed to consider) when developing the IEP. Only if the parent can demonstrate that the CSE, IHO and/or SRO was less than thorough in determining what is “appropriate” for the student is that parent likely to be successful in any court challenge to an IEP. See S.B. and S.B., Individually and on Behalf of C.B. v. New York City Dep’t of Educ., 2017 WL 4326502, at *15 (E.D.N.Y. Sept. 28, 2017) (parents demonstrated that school district failed to timely reevaluate student in her areas of need and failed to review her most recent evaluations during the IEP meeting; decisions of the CSE and SRO were belied by a preponderance of the objective evidence and neither reconciled inconsistencies nor acknowledged their existence, and, thus, “[t]he IEP was not designed to enable C.B. to make progress in light of her educational needs”).