February 15th, 2018

The MLO Minute: COLORADO’S US DISTRICT COURT DECISION IN ENDREW F. DECLARES ANOTHER VICTORY FOR STUDENTS WITH SPECIAL NEEDS

By Tanya Alvarado, Esq.

Parents and professionals working with children with special education needs recall last year’s resounding victory when the United States Supreme Court unanimously struck down the exceedingly low standards set by a Colorado Court regarding expectations for educational progress for students with disabilities. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. — US –, 137 S.Ct. 988, 992 (March 22, 2017).  After its decision, the Supreme Court remanded Endrew F.’s case to the lower court to determine whether Endrew’s school district provided him with a free appropriate public education (FAPE) in light of the new standards.  In yet another victory for families of children with special needs, on February 12, 2018, the Honorable Lewis T. Judge Babock of the U.S. District Court of Colorado found that Endrew’s school district had set exceedingly low and unacceptable expectations for his educational progress.  The District Court determined that Endrew’s parents are entitled to tuition reimbursement from their school district for the cost of the private school placement among other remedies, all of which could amount to seven figures.

In Endrew F., the Supreme Court rejected the “merely more than de minimis” standard and set a new, rigorous and undeniably higher standard of expectations for academic progress for all children with disabilities educated in public schools in the United States.  Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. — US –, 137 S.Ct. 988, 992 (March 22, 2017).   The new standard, which the Supreme Court established as “markedly more demanding”, “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” and “appropriately ambitious relative to the child’s unique strengths and needs” elevates the robust and individualized qualities of a child’s educational program.  In doing so, the Supreme Court determined that “every child should have the chance to meet challenging objectives,” regardless of the child’s identified needs.  137 S.Ct. at 1000.  However, the Supreme Court did not consider whether Endrew’s Individualized Education Plan (IEP) offered him appropriate educational programming.  Instead, it remanded the case to the lower federal court for that determination. On remand, the U.S. District Court of Colorado found that Endrew’s minimal programming evidencing years of little to no educational progress deprived him of an appropriate public education.

In his complaint, Endrew, a child diagnosed with Autism and Attention Deficit Hyperactivity Disorder (ADHD), and his parents, Joseph and Jennifer F. sought private school tuition reimbursement from his school district due to his lack of educational progress and continued offers of substantially similar IEPs from year to year, among other remedies.  Endrew attended public school until May 2010 of his fourth grade school year when his parents enrolled him at the Firefly Autism, a private specialized school for students with Autism.

In finding the IEPs inappropriate, the District Court noted that since Endrew’s second grade school year, his IEPs consisted of mere updates, minor increases of his objectives, carry over of the same goals from year to year despite his lack of progress, or complete abandonment of goals that could not be met.  Meanwhile, Endrew’s behavioral needs escalated and these, too, were not appropriately addressed.  Judge Babcock found that the IEPs were not reasonably calculated for Endrew to “achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded to children without disabilities.” citing to Endrew F. v. Douglas Cty., supra, 137 S.Ct. at 1001.

The District Court ordered reimbursement for private school tuition expended by the family, reasonable attorney’s fees and litigation costs, and awaits the family’s accounting of these expenses by March 5, 2018. The school district will have an opportunity to respond. Interestingly, a Colorado newspaper covering this story confirmed that Endrew has continuously attended Firefly Autism for nearly eight years since his placement in May 2010.  Firefly Autism’s annual tuition has averaged $70,000 per year.

You can find Judge Babcock’s decision here: http://c.ymcdn.com/sites/www.copaa.org/resource/resmgr/docs/2018_Documents/Endrew2018.02.12.Opinion_and.pdf