Ever since Congress passed the original law requiring public schools to provide a free appropriate public education (FAPE) to students with disabilities in 1975, everyone involved in the special education system has struggled with the definition of “appropriate.” This includes teachers, parents, advocates, attorneys and the court system. The problem, of course, is that the word appropriate defies precise definition. On one hand, the law does not require public schools to provide children with disabilities the best possible education, even though parents should always advocate for that. On the other hand, if a child fails to make any progress and merely gets a de minimis education, that is clearly not appropriate and therefore violates the law. The challenge has been in that huge grey area in between. Some have said the the child is not entitled to a Cadillac type of education, but only a Chevrolet. I like to add that the Chevrolet must have 4 wheels and be in sound operating condition.
Fortunately, earlier this year, in a unanimous decision, the U.S. Supreme Court offered updated clarification on this issue and rejected the 10th Circuit Court of Appeals definition of appropriate. The 10th Circuit had ruled that public school merely needed to provide, “merely more than de minimis” education to children with disabilities, but in the case known as Endrew F., the Supreme Court stated that,
a school must offer an IEP [individualized education program] that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
The Court additionally emphasized the requirement that “every child should have the chance to meet challenging objectives.”
While this case, especially in light of its unanimous nature in an often divided Supreme Court, is very important, earlier this week, something even more important happened when the U.S. Department of Education issued a Q&A on the Endrew F. decision. This Q&A is very important because:
- Many advocates feared that Secretary DeVos would eviscerate enforcement of the special education law known as the IDEA (Individuals with Disabilities Education Act);
- Public reaction was strong and many were troubled with the U.S. Department of Education rescinded 72 pieces of policy guidance in October; and
- Most important, as set forth below, the Q&A fully supports both the substance and rationale of the Endrew F. decision and thus the U.S. Dept. of Education appears prepared to enforce the IDEA according to this landmark decision.
Due to the importance of both the Endrew F. decision and the administration’s interpretation of it, everyone involved in the education of children with disabilities should be aware of the following key points emphasized by the Q&A:
- Public schools must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” to all students with disabilities, including those performing at grade level and those unable to perform at grade level.
- “[A] student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all…The IDEA demands more.”
- Each child’s educational program must be appropriately ambitious in light of his or her circumstances, and every child should have the chance to meet challenging objectives.
- In determining whether an IEP is reasonably calculated to enable a child to make progress, the IEP Team should consider the child’s previous rate of academic growth, whether the child is on track to achieve or exceed grade-level proficiency, and any behaviors interfering with the child’s progress.
- The IEP Team, which must include the child’s parents, must give “careful consideration to the child’s present levels of achievement, disability, and potential for growth.”
- The IEP must include annual goals that aim to improve educational results and functional performance for each child with a disability. This inherently includes a meaningful opportunity for the child to meet challenging objectives.
- Annual IEP goals for children with the most significant cognitive disabilities should be appropriately ambitious and “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”
The Q&A concludes by stating that,
IEP Teams must implement policies, procedures, and practices relating to: (1) identifying present levels of academic achievement and functional performance; (2) the setting of measurable annual goals, including academic and functional goals; and; (3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F. standard is met for each individual child with a disability.
In sum, with both a typically divided Supreme Court and the U.S. Department of Education which advocates feared would take special education backwards, making strong statements in favor of a meaningful definition of appropriate education, parents and advocates now have important tools to insist that children with disabilities receive the kind of education that will allow them to make meaningful progress every year.
For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.