Just over a year ago, on March 22, 2017, the Supreme Court of the United States issued its first decision in decades clarifying the standard required for provision of a free appropriate public education (FAPE) first enunciated in Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U. S. 176 (1982). In Endrew F. v. Douglas County School District, 580 U.S. ___, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017), the Court reversed the standard followed by the Court of Appeals for the Tenth Circuit, that a child’s Individualized Education Plan (IEP) need only be calculated to enable the child to make “merely more than de minimis” progress. Rather, the Court held that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” If grade level advancement “is not a reasonable prospect for a child [based on his individual circumstances], 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.” The Court’s numerous references to its previous decision in Rowley led to the conclusion that Endrew F. was a clarification of Rowley, and did not represent a new standard.
Since the decision in Endrew F., the Court of Appeals for the Second Circuit has made passing references to the decision, but addressed it squarely for the first time in Mr. P and Mrs. P. ex rel. M.P. v. West Hartford Bd. of Educ., __ F.3d __, 2018 WL 1439719 (2d Cir. March 23, 2018). The Court confirmed what school districts have hoped and believed since the decision in Endrew F. was announced, that is, the FAPE standard within the Second Circuit was already aligned with the high court’s decision. The Court of Appeals wrote:
[T]his Court has emphasized that the substantive adequacy of an IEP is focused on whether an IEP was reasonably calculated to enable the child to receive educational benefits and likely to produce progress, not regression. In Walczak, this Court explained that, while the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP, the door of public education must be opened for a disabled child in a meaningful way. This is not done if an IEP affords the opportunity for only trivial advancement. Merely crossing the threshold of ‘trivial advancement’ does not satisfy the IDEA, as the Walczak court and the Supreme Court have explained.
2018 WL 1439719, at *16 (internal quotations and citations omitted). Those who argued that Endrew F. raised the bar in this jurisdiction may be disappointed, but school districts can breathe a collective sigh of relief.