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Are We Still Providing FAPE?

Special Education

  Guest Post by John B. Comegno II

What does the Endrew F. Ruling mean for FAPE?

Did the Meaning of FAPE Change in March 2017?

What does a “Free and Appropriate Public Education” (FAPE) actually mean for the over 6.6 million1 students currently receiving special education in U.S. public schools, following the March 22, 2017 U.S. Supreme Court ruling on special education? How should a student’s needs be met and tracked? These are questions raised by the parents of plaintiff, Endrew F., as they sought to secure tuition reimbursement for the placement of their son with Autism and behavioral challenges, arguing that his public school failed to provide appropriate supports in order for him to learn.

In the resulting case, Endrew F. v. Douglas County School District, the Supreme Court revisited its earlier definition of FAPE, and clarified that FAPE requires appropriate goal-setting, and progress, based on individual student “circumstances.”

For districts, schools and teachers — the question heading into the 2017-18 school year is: How should the ruling guide our special education program moving forward? Are our IEPs appropriately individualized, based on individual student circumstances? Are our students making the kind of appropriate, “ambitious” progress discussed by the Court?

What “Appropriate Progress” Means as We Plan Student Support


Connecting the Dots to Plan Next Steps

In Endrew F., the Court reviews Congress’ original intent in requiring the delivery of special education, and answers current questions regarding the goal of special education.

Congress reauthorized its first piece of special education legislation, the Education of All Handicapped Children Act (1975), in 1990 through its Individuals with Disabilities in Education Act (IDEA). Through the IDEA, the U.S. administered a four-part (A-D) piece of American legislation that ensured public school students with a disability are provided with FAPE, tailored to meet their individual needs.

Both the EHCA and the IDEA were revolutionary laws that addressed historic disadvantage — what the Court in Endrew F. remembered as the “pervasive and tragic academic stagnation” experienced by disabled students who either sat “idly by” in public school classrooms without appropriate supports or who suffered exclusion from public schools. Although these laws established standards to educate special needs students, including the provision of an Individualized Education Plan (IEP) that helped to identify a student’s academic, social and emotional goals, neither act defined a uniform standard for learning or FAPE under that IEP. Congress understood that a uniform FAPE standard would be difficult considering the different special education classifications, and that each student is unique, with different strengths and weaknesses.

The Supreme Court, in 1982’s Board of Education v. Rowley, first addressed what FAPE means, noting that the IEP must be “reasonably calculated to enable a child to receive educational benefits.”  The phrase “reasonably calculated” has generally been understood to mean that the IDEA does not guarantee any particular result — rather, the educational services provided by a school district must only provide some benefit to the student. How much benefit is sufficient? In other words, learning must occur; but schools are not required to provide the BEST services.

Providing Much, Much More Than De Minimis

You may be saying to yourself — this is all semantics! Appropriate, benefit, best, adequate, learning? Don’t all students deserve the kind of education they need in order to succeed? Shouldn’t special education always enable learning? Is there a rubric or template for sufficient progress? Although there is no template, the Supreme Court did provide guidance in Endrew F.: while students’ needs differ, they student should be offered special education and relates services “appropriately ambitious in light of his circumstances.” Although students’ goals may differ, “every child should have a chance to meet challenging objectives.”

Ultimately, for the Endrew F. case, the Court agreed with the parents that “to meet its substantive obligation under the Individuals with Disabilities Education Act, a school must offer an ‘individualized education program’ reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Importantly, Endrew F.’s parents lost every legal proceeding through the hierarchy from the administrative hearing through the lower federal appellate courts, until reaching the Supreme Court.  The lower courts relied upon a “de minimus” standard of FAPE, concluding that minimum services which produced “some benefit” for the student, were sufficient to meet the IDEA standard. The Supreme Court disagreed, and adopted a higher standard, requiring meaningful educational progress to satisfy FAPE.  In so ruling, the Court reconciled a split between the federal appellate courts on this issue, and provided direction to all public schools across the nation – FAPE means learning that is appropriate considering the skills of the specific student.

How Does the Endrew F. Ruling Affect Your Staff and Best Practices?

So, what does all of this mean for teachers and schools?

  • Teachers — should collaborate with parents and colleagues (other members of a student’s support team) to objectively focus on individual needs across academics and general education.
  • Schools — have a unique opportunity to combine input from a student’s teachers and his or her parents to get a clearer picture of student need and progress. Combining this data in a student’s IEP and using it to monitor progress throughout the year helps to ensure special education programs are meeting their legal obligations under IDEA.

Although the needs of students with disabilities differ, progress must be derived from an objective, individual need, and learning must be appropriately ambitious. The Endrew F. Court notes that appropriate progress is impossible to clarify for all students but that all students must receive ambitious, meaningful benefit.

Does this change how your special education program needs to operate?

The answer depends on where your school or district is located and what your current best practices delineate. Specifically, if your school district is located within the states covered by the Fourth (West Virginia, Virginia, North and South Carolinas), Seventh (Wisconsin, Illinois, Indiana), Eighth (North and South Dakotas, Nebraska, Minnesota, Iowa, Missouri, Arkansas), Tenth (Wyoming, Utah, Kansas, Colorado, New Mexico, Oklahoma), or Eleventh (Alabama, Georgia, Florida) United States Circuit Courts of Appeal, you should consult with your school attorney regarding the uniform FAPE standard articulated by the Endrew F. Court, and whether the law in your state has changed.

Does your program have the tools it needs to gain insights from student data — and to use those insights to plan individualized instruction? Connecting your data in a common system not only helps with organization and compliance — it can help teachers, providers and parents collaborate to get a clearer view of student need. Check out Frontline’s solution for IEP and special education management now.

[1] Frontline Research and Learning Institute. (2017). Crossing the Line: Exploring Equity in Special Education Classification Across the United States. Malvern, PA. Accessed from

John B. Comegno II

John Comegno is Founder and President of the Comegno Law Group, P.C., and is recognized nationally as a leading School Law practitioner, representing public and independent schools, Educational Services Commissions, Special Service School Districts, and third-party education vendors. A nationally-recognized lecturer on School Law who has lectured to thousands of educational professionals across the United States, John regularly presents to conventions, professional groups, associations, public and independent schools, and other audiences

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