The student, Endrew, qualified for special education due to autism. Endrew’s parents withdrew him from the district, however, because they believed the child’s educational progress was inadequate. They later sought reimbursement that the district challenged. The district’s denial of reimbursement was upheld after a due process hearing in administrative court, and that determination was also upheld in federal district court.
The parents raised both procedural and substantive challenges: (1) the district failed to provide them with adequate reporting of the boy’s progress, and (2) the district failed to conduct a proper assessment of his behavior and put in place an adequate plan to address his particular behavioral needs. The parents claimed that the child’s individualized education program (IEP) was inadequate because he made no measurable progress on IEP goals and there was no consideration to his escalating behavior.
The Tenth Circuit Court of Appeals out of Colorado held that, even if there was a procedural violation related to progress reporting, that did not result in the denial of FAPE. While it could have been more robust, the district’s progress reporting was sufficient for the parents to assess their child’s progress and the boy’s education did not suffer as a result. The parents were aware of the student’s progress and fully participated in his education.
With respect to assessments of the boy’s behavior, the district properly considered his behavioral issues and interventions. While the student’s behavior impeded his learning and that of others, the record was filled with examples of the district’s attempts to address the student’s problem behaviors.
The court of appeals next addressed the legal standard for the provision of FAPE under the IDEA. Some courts have required a showing of “some educational benefit,” while other courts impose a higher burden of “meaningful educational benefit.” Among the federal circuit courts that apply the heightened burden of “meaningful educational benefit” is the Fifth Circuit, which has jurisdiction over Texas. The Tenth Circuit, however, followed its own precedent on this issue and applied the “some educational benefit” standard. Using that standard, the appeals court concluded that the student had made progress towards his academic and functional goals. His goals increased from year to year and his teacher testified that he had made progress. His mother also testified that she had seen progress in prior years. Because the evidence supported the finding that the child had made some academic progress, despite his behavioral difficulties, the parents failed to establish a denial of FAPE. The court of appeals upheld the decision to deny the parents reimbursement for the costs of a unilateral private placement.
This case is one for school administrators in Texas to watch. The Fifth Circuit, which has jurisdiction over Texas, requires a higher level of progress to be shown to establish FAPE – “meaningful benefit” as opposed to “some benefit.” The U.S. Supreme Court will have to reconcile these two standards and, only time will tell, which one will be required moving forward.
