U.S. Supreme Court Rejects “More than De Minimis” Standard

by Dean Micknal

The U.S. Supreme Court issued an opinion today that expressly rejects “merely more than de minimis” as the standard for measuring whether an IEP is reasonably calculated to provide FAPE under the IDEA.  Instead, the Court has held that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

In Endrew F. v. Douglas County School District, the Court overturned the 10th Circuit’s interpretations of IDEA and the Supreme Court’s previous ruling in Board of Education of Hendrick Hudson School District, Westchester City v. Rowley (“Rowley”) as only requiring an IEP to be reasonably calculated to enable a student to make some progress, as long as the progress is more than de minimis.  The leading case in the 5th Circuit, Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. applied a similar interpretation, explaining that the educational benefit to which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be “likely to produce progress, not regression or trivial educational advancement.”

While the opinion makes it clear that the “more than de minimis” standard is unacceptable, the new standard is anything but definite.  This should not be viewed as an oversight, though.  In fact, the Court expressly refused to establish a bright-line rule on what “appropriate” progress means, explaining that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”

The frustrating reality of this ruling is that it leaves districts (and their legal counsel) in the position of knowing what FAPE isn’t, but not knowing what FAPE is.  That determination is going to have to be developed through litigation, a fact that the Court seemingly acknowledged when it cautioned future courts that “[t]his absence of a bright-line rule” should not be mistaken as “an invitation…to substitute their own notions of sound educational policy for those of the school authorities which they review.”

This affirmation that the legal presumption of appropriateness is still standing is one of the two areas in which districts might find some measured solace.  The second is that the Court flatly declined to adopt the standard asserted by the Petitioners that IDEA requires “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 children without disabilities.”

So what should districts do in response to the new ruling?  First, take a deep breath. The “more than de minimis” standard may have been the law, but in reality the overwhelming majority of districts have always committed to providing much more than the bare minimum to their special education scholars.  Next, recommit to emphasizing the importance of ensuring that an IEP is truly individualized and based on a student’s Present Level of Academic Achievement and Functional Performance (PLAAFP).  The fact that the new standard is directly tied to “the unique circumstances of the child” means that a well written PLAAFP statement is more crucial now than ever.

Finally, acknowledge that the ruling raises the bar, but stops well short of requiring the district to issue a blank check.  IEP development is a collaborative process and sometimes disagreement is inevitable. The IDEA provides parents with the right to file for a due process hearing in these instances.  When that happens, remember that the Court chose to close this decision with the following message:

The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue.  By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.  A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.

If you should have any questions or concerns about what the new decision means for your district, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.