Special Needs Students Deserve More Than “Some Benefit” in Education

Christopher D. Johnson, KLJ Staff Editor[1]

In its upcoming term, the Supreme Court of the United States has elected to hear the case of Endrew F. to determine “what kind of benefits schools must provide to children with disabilities.”[2] Endrew has been diagnosed with both autism and attention deficit/hyperactivity, conditions that effect an estimated two percent and five percent of United States children respectively.[3]

Federal funding for education is contingent on “a free appropriate public education” (FAPE) to all children with disabilities.[4] The predominant way a FAPE is achieved is through the creation and execution of an individualized education program (IEP).[5] An IEP is a written statement that describes the child’s current academic achievement, how the disability affects the child’s performance, and measurable goals individualized to the child’s growth and progression.[6]

After feeling that their son was not being provided with a FAPE, Endrew’s parents rejected the proposed IEP, withdrew him from school, elected to enroll him in a more accommodating private school, and sought tuition reimbursement pursuant to 20 U.S.C. § 1412(a)(10)(C)(ii).[7]

The core of the controversy is by what standard an IEP should be measured, thus determining if the child has been provided with a FAPE.[8] The standard at issue, proffered by the Supreme Court in the 1982 case Board of Education v. Rowley, is ambiguous: an IEP must be “reasonably calculated to enable the child to receive educational benefits.” [9] The Tenth Circuit has held that the required educational benefit to students must be “more than de minimis.”[10] In line with the Tenth Circuit holding, the majority of the other circuits have adopted the “some educational benefit” standard.[11]

To measure if “some educational benefit” has been achieved, the Tenth Circuit “measure[s] . . . whether the IEP is reasonably calculated to guarantee some educational benefit, not whether it will do so.”[12] This loose standard effectively allows for a current IEP to be considered adequate simply because prior IEP goals were met, and the new IEP built on those prior goals.[13] This standard gives educators protection from statutorily mandated tuition reimbursement, as undoubtedly it can be proven that a child was able to receive “some benefit” from attending school.

Other circuits have adopted a more stringent standard for schools, mandating that a “meaningful educational benefit” must be provided to students.[14] This test, while seemingly more stringent, has one glaring problem: there is no determinative standard for what constitutes a “meaningful educational benefit.”[15] The Third Circuit Court of Appeals held that there must be “more than a trivial educational benefit.”[16] The Polk court seemed wary of the idea that minimal, incremental progression could be considered “appropriate education.”[17] This incremental progress is the same type that is implicitly endorsed by the Tenth Circuit’s application of the “some educational benefit” test.[18]

In an instance where the “meaningful benefit” standard was met, professional testimony from doctors as to the benefit a child would have received from the school, small class size, the presence of a full-time aide, supplemental staff, a child custody team, and the daily implementation of the child’s IEP were sufficient to reach the ambiguous standard.[19] On its face, this test appears to require more inquiry into the situation than the majority’s standard of “some educational benefit.”

In Endrew’s case, it is argued that the IEP was not adequate because his newest IEP was nearly identical to his past IEPs, which included goals that progress was not made toward.[20] Endrew’s parents reason that because of the lack of progress on the previous IEPs, the new and identical IEPs could not possibly be reasonably calculated to provide their child with an educational benefit.[21]

Refusing to adopt the “meaningful benefit” test, the Tenth Circuit determined the less-stringent “some educational benefit” standard was met because the objectives and measuring criteria listed under the annual goals set by the IEP increased with difficulty from year to year, goals that were not accomplished remained the same from year to year, and Endrew’s “special education teacher testified . . . that the change in objectives reflected the progress [he] was making.”[22]

The Supreme Court should take this opportunity to lay to rest the easily attained standard of “some educational benefit.” The “meaningful benefit” test will require an individual analysis for each student, and what the school has done to accommodate said student. A bright-line rule would likely not be applicable, or even beneficial, as every student possesses different capabilities, and requires distinct accommodations.[23] Instead, by adopting the “meaningful benefit” standard, claims will be heard on a case-by-case basis, and students will get the proper education they both need and deserve.

[1] J.D. expected May 2018.
[2] Amy Howe, Justices Add Eight New Cases to Docket for Upcoming Term, SCOTUSblog (Sept. 29, 2016, 11:14 AM), http://www.scotusblog.com/2016/09/justices-add-eight-new-cases-to-docket-for-upcoming-term/#more-246958.
[3]Autism Spectrum Disorder (ASD), Centers for Disease Control and Prevention, http://www.cdc.gov/ncbddd/autism/data.html (last visited Oct. 1, 2016); Attention-Deficit/Hyperactivity Disorder (ADHD): Data & Statistics, Centers for Disease Control and Prevention, http://www.cdc.gov/ncbddd/adhd/data.html (last visited Oct. 1, 2016).
[4] 20 U.S.C. § 1412(a)(1)(A).
[5] See 20 U.S.C. § 1414(d).
[6] See Id.
[7] Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. Re-1, 798 F.3d 1329, 1333 (10th Cir. 2015).
[8] Id. at 1338.
[9] 458 U.S. 176, 207 (1982).
[10] Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1149 (10th Cir. 2008).
[11] Ronald D. Wenkart, The Rowley Standard: A Circuit by Circuit Review of How Rowley Has Been Interpreted, 247 Educ. L. Rep. 1, 1 (2009) (explaining that the First, Fourth, Seventh, Eighth, Tenth, Eleventh, and District of Columbia circuits have all used the “some educational benefit” test.).
[12] Endrew F. ex rel. Joseph F., 798 F.3d at 1341 (emphasis in original).
[13] Id.
[14] See, e.g., Deal v. Hamilton Cty. Bd. Of Educ., 392 F.3d 840, 862 (6th Cir. 2004); Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808-09 (5th Cir. 2003); Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988).
[15] Wenkart, supra note 12, at 2.
[16] Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 180 (3d Cir. 1988).
[17] Id. at 184.
[18] See Endrew F. ex rel. Joseph F., 798 F.3d at 1341.
[19] T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000).
[20] See Endrew F. ex rel. Joseph F., 798 F.3d at 1338.
[21] Id.
[22] Id. at 1341–42.

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