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Rachael Wurtman
BY Rachael Wurtman

The Supreme Court Case Every Parent of a Child with a Disability Should Be Following

Legal experts predict that the US Supreme Court will take a major step towards advancing the legal rights of children who have special needs when the justices decide the case of Endrew F. v Douglas. The Court heard oral arguments last week in the case and is expected to provide a decision by the summer. The decision, in this case, could impact several million children and define what a free appropriate public education entitles them to.

For the second time since 1975, when Congress passed the Individuals with Disabilities Education Act (IDEA), the Supreme Court is expected to define and further clarify the legal mandate of the IDEA. The IDEA states that school districts that receive public funding are required to provide each student who has a disability with a free appropriate public education (FAPE). The only previous Supreme Court case to define the term FAPE was Board of Education v Rowley 458 U.S.176 (1982).

An Earlier Ruling on FAPE

From the perspective of some parents and special education attorneys and advocates, the Rowley holding did not provide adequate legal protections. In addition, there has been disagreement between lower court federal judges concerning the application of the Rowley decision; therefore, the meaning of the term FAPE varies according to location.

In Board of Education v Rowley, the Supreme Court stated that the purpose of the IDEA is to provide “access to a free public education” and that there are two definitions of FAPE. First, a child receives FAPE when the educational instruction is “specially designed to meet [his] unique needs … supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.” The second definition of FAPE is an “individualized educational program … reasonably calculated to enable the child to receive educational benefits.”

The determination of whether or not FAPE is being provided is relative to the expectations for each child, based on the child’s developmental needs. The justices wrote in Rowley that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end… We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children…”

The case limits the obligations of school districts in their education of students who have special needs. The opinion states explicitly that states are not required to “maximize the potential of handicapped children” or to “guarantee any particular level of education.”

Setting a Standard for Special Education

Circuit Courts have interpreted the decision in Rowley with varying results; there is no uniform standard in the meaning of FAPE. The case of Endrew F. will provide an important opportunity for parents and advocates to gain further insight into the Court’s understanding of the IDEA.

The case of Endrew F. v Douglas County School District involves a seventeen-year-old male, Endrew, who has autism. When he was in fifth grade, Endrew’s parents felt that he was not making adequate progress towards his social-emotional goals. Endrew, known as ‘Drew,’ was banging his head on the floor, removing his clothes, and bolting from school.

Drew’s parents withdrew him from public school and placed him in a school that specialized in treating children who had autism. He started to make progress immediately, and his parents sued the school district for reimbursement of the $70,000 annual tuition. The federal judges ruled that because the school was providing “some educational benefit,” the parents were not entitled to reimbursement.

Defining “Free Appropriate Public Education”

The case before the Supreme Court is based on the meaning of FAPE. At the oral arguments, three lawyers presented varying interpretations. On the Scotus blog, reporter Amy Howe describes the positions, gives the responses of the justices, and provides commentary of the likely outcome. According to this report, the justices seemed to reject the proposal advanced by the school district’s lawyer, namely that even with minimal progress, a “non-trivial benefit” at school satisfies FAPE.

The lawyer representing the family modified his argument at the oral argument in order to address the justices’ concerns about cost and the need for a national standard. His new proposal had two alternatives, according to the Scotus blog post: “A student’s IEP should generally ‘be tailored to achieve a general educational curriculum at grade level’; if that is not possible, the IEP should use alternative benchmarks that are ‘the highest possible achievable by the student.’”

The lawyer for the Justice Department stated that the IDEA required “significant educational progress in light of the child’s circumstances.” The Scotus blog report states that this is the standard most likely to be assumed by the Court because it follows legal precedent most closely. The Scotus post also states that the federal government’s suggestion “comes from the Department of Education, which – as Breyer noted – has expertise in issues related to education and the IDEA.”

Parents should pay attention to the decision in this vital case. It is expected to provide a long-awaited definition to the crucial phrase “free appropriate public education.”

Rachael Wurtman

Written on January 17, 2017 by:

Rachael Wurtman J.D., M.S, is a Special Education Attorney. She graduated from Barnard College of Columbia University and the Law School at the University of Pennsylvania, and she has a master’s degree in child development from Wheelock College. Prior to starting her Special Needs Consulting practice, she worked as an attorney and as an early intervention developmental specialist. She is also an experienced family mediator. To learn more or to request a consultation, see her website at