December 17, 2017

Tenth Circuit: “Some Educational Benefit” Required for Free and Appropriate Public Education Under IDEA

The Tenth Circuit Court of Appeals issued its opinion in Endrew F. v. Douglas County School District on Tuesday, August 25, 2015.

Endrew “Drew” F. has autism. He was enrolled in Douglas County Public Schools, but in 2009, after a particularly rough fourth grade year, his parents rejected the district’s proposed Individualized Education Plan (IEP) for the fifth grade year and instead enrolled him in Firefly Autism, a private school in which he is thriving. Drew’s parents submitted a tuition reimbursement request to the Douglas County School District, seeking reimbursement under the Individuals with Disabilities Education Act (IDEA) because the school had failed to provide Drew with a free appropriate public education (FAPE). Drew’s parents argued that because Drew was making minimal progress and had escalating behavioral issues, he was being denied a FAPE. The district declined to pay Drew’s tuition at the private school.

Drew’s parents sought a due process hearing with an ALJ, who ultimately found that Drew had received some educational benefit in the public schools and therefore was receiving a FAPE. The federal district court affirmed the ALJ’s finding, and Drew’s parents appealed to the Tenth Circuit.

The Tenth Circuit first evaluated the strictures of the IDEA, noting that the Act does not prescribe a substantive level of achievement for the education to be considered appropriate. Under Supreme Court and Tenth Circuit precedent, the individual need only show “some educational benefit.” The Tenth Circuit then addressed the IDEA provisions which allow parents to seek tuition reimbursement from a district, noting that parents who take unilateral action do so at their own financial risk. The Tenth Circuit next set forth the two-step process for determining whether a district provided a student with a FAPE: (1) whether the district complied with the IDEA’s procedural requirements, and (2) whether the IEP is reasonably calculated to enable the child to receive educational benefits.

Turning to the parents’ procedural arguments, the Tenth Circuit rejected the parents’ argument that they were not adequately informed of Drew’s progress because although the notes on the IEP were inadequate, there was record support that Drew’s parents communicated with the special education teacher regularly. The parents also argued that the district failed to provide a FAPE because it did not address Drew’s escalating behavioral difficulties, but the Tenth Circuit again rejected this argument, finding the district had requested a behavioral assessment but it was scheduled for after the parents pulled Drew from the district and therefore never occurred.

The Tenth Circuit next turned to the parents’ substantive arguments regarding Drew’s fifth grade IEP. The parents contended that because the fifth grade IEP was similar in all material aspects to previous IEPs, Drew’s lack of progress on those past IEPs was dispositive of whether the fifth grade IEP was reasonably calculated to lead to educational benefit. The parents also contended that the ALJ failed to consider the impact of Drew’s escalating behavioral problems in determining the IEP was reasonably calculated to provide Drew an educational benefit. Finally, the parents asserted that recent Tenth Circuit case law changed the standard by which the IEP should have been evaluated from “some educational benefit” to “meaningful educational benefit.”

The Tenth Circuit first disagreed with the parents’ contention that its recent case law signaled a shift in precedent, finding that the neither the previous panel nor the current panel could change the precedent absent en banc review or a new Supreme Court decision. The Tenth Circuit also noted that the distinction between “some educational benefit” and “meaningful educational benefit” was semantic. The Tenth Circuit found no error in the ALJ’s reliance on the “some educational benefit” standard. The Tenth Circuit then evaluated whether Drew progressed on the prior IEPs and found that he did. Although it was “without question a close case,” the Tenth Circuit found that Drew received more than a de minimus benefit and therefore affirmed the ALJ. The Tenth Circuit similarly rejected the parents’ contentions that the district failed to address Drew’s escalating behavioral concerns or the ALJ ignored them. The Tenth Circuit found record support that the district began implementing a behavioral intervention plan before the parents pulled Drew from the district.

The district court and ALJ were affirmed.

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  1. […] benefit” that was more than de minimus — more than nothing. The parents appealed, and the 10th Circuit upheld the hearing officer’s decision that because Endrew was making some progress, he was […]

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