special education

What Public Schools Owe Students with Disabilities – A New Definition of an Old Standard

Public schools must provide students with an educational program that is “appropriately ambitious” and “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___ (2017).

Introduction

Imagine you are the principal at a public school. A student with a disability enrolls in your school. What services must the school provide? Do you have to ensure that the student achieves grade-level progress, is on track to gain self-sufficiency, and has opportunities similar to those given to children without disabilities? Or do you just need to ensure the student achieves some progress, no matter how minimal?

The United States Supreme Court (the “Court”) recently provided additional clarity for parents and school officials when they develop interventions for students with disabilities. While there is still room for interpretation, the Court’s guidance requires that schools provide students services that are “appropriately ambitious” given the severity of a student’s disability. The Court’s standard is higher than what many schools and districts were previously providing. Schools and parents should revisit their students’ interventions to make sure they comply with the new standard.

The Facts

The Douglas County School District in Colorado (the “District”) faced just such a question when Endrew F. enrolled as a kindergarten student. Endrew has autism. The school district, as required under the Individuals with Disabilities Education Act (the “IDEA”), worked with Endrew’s parents to develop an Individualized Education Plan (“IEP”) intended to address Endrew’s unique educational and functional needs. The IEP was essentially rolled over every year through fourth grade. By the end of fourth grade, Endrew’s parents became worried that Endrew’s academic and functional progress seemed to stall but the District proposed no new interventions. Instead, the District proposed a similar IEP for fifth grade.

Endrew’s parents had their worries validated when they enrolled their son at Firefly Autism House, a private school specializing in education for children with autism. Endrew began to make substantial progress. His parents asked the District to implement some of the behavioral interventions that were working for Endrew at Firefly in Endrew’s prior public school. The District essentially refused.

The Case

Under the IDEA, if a public school district fails to provide proper services to a student with disabilities parents may seek reimbursement for the cost of seeking those services elsewhere. When the District refused to provide additional interventions for Endrew his parents sought reimbursement from the District for the cost of sending Endrew to Firefly. The District refused and the issue wound its way through the courts.

The IDEA requires school districts to provide every student with a free appropriate public education, or FAPE, in order to receive certain funds. The dispute between Endrew’s parents and the District came down to their definitions of what constitutes a FAPE. The District argued that it was only required to provide services to Endrew that allowed him to receive some educational benefit – a minimal standard. An administrative law judge, a district court, and a court of appeals all agreed with the school district. Each ruled that so long as Endrew was making some progress, the District met its burden under the IDEA.

scotusThe Ruling 

The Supreme Court disagreed with the lower courts. In a unanimous decision issued on March 22, 2017, the Court rejected the District’s argument that any level of progress was sufficient. Without creating any bright-line rule, the Court stated that a child’s IEP “must aim to enable the child to make progress” and “must be appropriately ambitious.” The Court declined to adopt a more ambitious standard proposed by Endrew’s parents, which would have required school districts to provide “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded to children without disabilities.”

Takeaways

So how does a school district decide what is appropriately ambitious? The Court seems to say that each child with a disability must be viewed on a case by case basis. Schools should design ambitious plans based on a disabled student’s unique strengths and challenges without benchmarking their progress against children without disabilities. School officials must be able to offer a “cogent and responsive explanation” for their decisions related to the IEP.

In order to comply with the Supreme Court’s ruling, schools and districts should begin to review their IEP procedures. IEP teams should consider not only whether a student has made progress under their current and prior IEPs, but how much progress the student is reasonably capable of achieving in light of the student’s circumstances.

While the implications are not yet clear, the Supreme Court’s ruling is likely to invigorate parents and advocacy groups that seek additional services for children with disabilities enrolled in public schools.

 

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Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

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American Diabetes Association
American Friends of the Hebrew University
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Association of Fundraising Professionals
Avalon Consulting
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A.B. Data
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
American Rivers
Association of Fundraising Professionals
Baton Rouge Area Foundation
BrightFocus Foundation
Burger King McLamore Foundation
Cancer Care
Carnegie East House and James Lenox House Association
Center for Car Donations
Changing Our World
Charity Defense Council
Christian Appalachian Project
Coca-Cola Scholars Foundation
Convoy of Hope
Cornell University
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Feed The Children
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Helen Keller Services
Hope for New York
Human Rights Watch
Humane Society of US
Indiegogo
International Campaign for Tibet
International Crisis Group
International Justice Mission
Japanese American National Museum
Johns Hopkins University
Lane Bryant Charities
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law
LSU Foundation
Mattel
Meyer Partners, LLC
Milken Institute
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National Marrow Donor Program
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Obama Foundation
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
Population Action International
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Rails to Trails
Redeemer Presbyterian Church
Rock and Roll Hall of Fame and Museum
Rockefeller Philanthropy Advisors
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Steinhardt Foundation
Subaru of America
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Our attorneys’ recent contributions to the media and nonprofit sector publications.

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Check out our attorneys’ recent contributions to the media and industry publications.

Secure Your Data – Seriously, AFP New York Chapter News
As Jon Dartley, a data privacy and security attorney at Perlman and Perlman says, “It is vital to have the appropriate legal terms in the contract to protect your interests.”  Find out what your liability limit is.  Have it in writing who bears the responsibility and cost of a data breach.  And, have the vendor agree on a specific timeframe within which they need to advise you of a data breach.

Warning: Don’t Cut Legal Corners When Mixing Social And Business Impact,  Forbes
Particularly striking is that (Karen) Wu believes this is the “first multi-state regulatory activity involving cause marketing in almost two decades.”

Is stealing, then giving back, OK?
Cliff Perlman lends his advice on theft within a nonprofit.

Buyer Beware: Negotiating Terms in Technology Agreements
Jon Dartley provides tips on negotiating contracts with technology vendors.

Four Ways Charitable Giving Could Change with a Tax Overhaul
Cliff Perlman remarks on the possible threat of a change to charitable deduction.

How To Deal With Residual Data, Nonprofit Times
Jon Dartley’s advice on addressing “data exhaust”.

Secure Your Data – Seriously, AFP New York Chapter News
As Jon Dartley, a data privacy and security attorney at Perlman and Perlman says, “It is vital to have the appropriate legal terms in the contract to protect your interests.”  Find out what your liability limit is.  Have it in writing who bears the responsibility and cost of a data breach.  And, have the vendor agree on a specific timeframe within which they need to advise you of a data breach.

Warning: Don’t Cut Legal Corners When Mixing Social And Business Impact,  Forbes
Particularly striking is that (Karen) Wu believes this is the “first multi-state regulatory activity involving cause marketing in almost two decades.”

Is stealing, then giving back, OK?
Cliff Perlman lends his advice on theft within a nonprofit.

Buyer Beware: Negotiating Terms in Technology Agreements
Jon Dartley provides tips on negotiating contracts with technology vendors.

Four Ways Charitable Giving Could Change with a Tax Overhaul
Cliff Perlman remarks on the possible threat of a change to charitable deduction.

How To Deal With Residual Data, Nonprofit Times
Jon Dartley’s advice on addressing “data exhaust”.

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who we work with

Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

who we work with

Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

A.B. Data
AB InBev Foundation
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
Association of Fundraising Professionals
Avalon Consulting
Baton Rouge Area Foundation
Black Lives Matter Global Network Foundation
Bleeding Blue for Good Fund
Bradley Cooper’s One Family Foundation
BrightFocus Foundation
Brooks Brothers
Chadwick Boseman Foundation for the Arts
Changing Our World
Charity Defense Council
Christian Appalachian Project
Doctors of the World/ Medecins du Monde
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Estee Lauder Companies, Inc.
Feed The Children
Food For The Poor
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Hope for New York
International Campaign for Tibet
International Crisis Group
International Justice Mission
J. Crew Group
Johns Hopkins University
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law
LSU Foundation

Marts & Lundy
Meyer Partners, LLC
Milken Institute
NAACP Foundation
National Alliance on Mental Illness (NAMI)
National Marrow Donor Program
National Park Foundation
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
PopSockets
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rockefeller Philanthropy Advisors
Save the Children Federation
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Subaru of America
The Little Market
Touro University
United States Equestrian Team Foundation
United Way Worldwide
University of Connecticut
University of Virginia
Vote.org
Whitney Museum of American Art
World ORT
World Wildlife Fund
YWCA USA

A.B. Data
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
American Rivers
Association of Fundraising Professionals
Baton Rouge Area Foundation
BrightFocus Foundation
Burger King McLamore Foundation
Cancer Care
Carnegie East House and James Lenox House Association
Center for Car Donations
Changing Our World
Charity Defense Council
Christian Appalachian Project
Coca-Cola Scholars Foundation
Convoy of Hope
Cornell University
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Feed The Children
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Helen Keller Services
Hope for New York
Human Rights Watch
Humane Society of US
Indiegogo
International Campaign for Tibet
International Crisis Group
International Justice Mission
Japanese American National Museum
Johns Hopkins University
Lane Bryant Charities
LSU Foundation
Mattel
Meyer Partners, LLC
Milken Institute
National Breast Cancer Coalition
National Marrow Donor Program
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Obama Foundation
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rock and Roll Hall of Fame and Museum
Rockefeller Philanthropy Advisors
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Steinhardt Foundation
Subaru of America
United States Equestrian Team Foundation
University of Montana Foundation
University of Nevada, Las Vegas Foundation
Whitney Museum of American Art
World ORT
World Wildlife Fund
YMCA USA
YWCA of New York City
YWCA USA
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law

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