The NCSL Blog


By Lisa Soronen

The U.S. Supreme Court’s decision in Endrew F. v. Douglas County School District might be construed as bad timing for Supreme Court nominee Judge Neil Gorsuch.

Supreme Court - The New York TimesThe Supreme Court held unanimously that public school districts must offer students with disabilities an individual education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The court rejected the 10th U.S. Circuit Court of Appeals holding that an IEP must merely confer “some educational benefit” that is “more than de minimis.”

This ruling came down while Gorsuch was testifying before the Senate Judiciary Committee. Gorsuch was the author of a 2008 opinion that was the basis for the 10th Circuit’s opinion in Endrew F.

Under the federal Individuals with Disabilities Education Act (IDEA), a student with a disability receives an IEP, developed with parents and educators, that is intended to provide that student with a “free and appropriate public education” (FAPE).

Endrew F. is autistic. When he was in fourth grade his parents removed him from Douglas County School District because they thought he wasn’t making adequate progress. Per IDEA, parents may enroll their child with a disability in a private school and receive reimbursement from the public school if the public school was unable to provide the child a FAPE. The district argued it was able to provide Endrew F. a FAPE and refused to reimburse his parents for the cost of private school tuition.

Board of Education v. Rowley (1982) was the first case where the Supreme Court defined FAPE. In that case, the court failed to articulate an “overarching standard” to evaluate the adequacy of an IEP because Amy Rowley was doing well in school. But the court did say in Rowley that an IEP must be “reasonably calculated to enable a child to receive educational benefits.” For a child receiving instruction in the regular classroom an IEP must be “reasonably calculated to enable the child” to advance from grade to grade.

In Endrew F. , the court stated that if “progressing smoothly through the regular curriculum” isn’t “a reasonable prospect for a child, his IEP need not aim for grade level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.”

The court admitted its new standard is “general” but was also clear that it is “markedly more demanding than the 10th Circuit’s standard.” According to Endrew F.’s certiorari petition, four federal circuit courts of appeals applied a standard similar to the 10th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming):  1st (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island); 4th (Maryland, North Carolina, South Carolina, Virginia, West Virginia); 7th (Illinois, Indiana, Wisconsin); and 8th (Arkansas, Iowa, Minnesota, Missouri, and Nebraska).

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.