“Meaningful Progress”

By Dennis C. McAndrews, Esquire

I. Introduction

The passage of the Education for All Handicapped Children Act of 1975 (“EHA”), later re-enacted as the Individuals with Disabilities Education Act (“IDEA”), was initially adapted to ensure that children with disabilities have access to a free appropriate public education (“FAPE”). At that time, approximately 1,000,000 children were excluded entirely from public schools. However, Congress later found that the implementation of the IDEA was impeded by low expectations, and an insufficient focus on applying research-based methods of teaching and learning for children with disabilities. Thirty (30) years of research and experience demonstrated to Congress that the education of children with disabilities can be made more effective by focusing on actual education benefits, and requiring research-based programs and services for children with disabilities. 20 U.S.C.A. Section 1400, amended in 2004.

In 1982, the Supreme Court in Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley held that the Education for All Handicapped Children Act’s (“EHA”) requirement of a “free appropriate public education” (“FAPE”) is satisfied only when the state provides personalized instruction with sufficient support services to adequately confer “some educational benefit” upon a child with disabilities. 458 U.S. 176, 200 (1982) (emphasis added). The Supreme Court found that “[i]t would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education.” Id. After noting EHA’s standard, the Court recognized the difficulty in determining whether a child is receiving sufficient educational benefits. Id. at 202. The Court noted that grading and advancement systems constitute important factors in determining educational benefit, but it also specifically recognized that mere advancement from grade to grade is not dispositive that a child with disabilities is receiving sufficient educational benefits to satisfy the requirements of FAPE. Id. at 202.

The Rowley Court declared that in order to meet the statutory requirements of FAPE under the IDEA, school districts must: 1) conform to the procedural requirements of the Act; and 2) ensure that the eligible student’s IEP is reasonably calculated to yield educational benefit. Rowley, 458 U.S. at 206-207. The Supreme Court stated that “the IEP . . . should be formulated in accordance with the requirements of the Act and . . . should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade .” Id. at 203.

The Third Circuit Court of Appeals has clarified that under the IDEA, “[t]he IEP must be reasonably calculated to afford the child the opportunity to receive "meaningful educational benefit." Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004); Accord, Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999); Oberti v Bd. of Educ. Of the Borough of Clementon Sch. Dist., 995 F.2d 1204, 1213 (3d Cir. 1993); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 184 (3d Cir. 1988).

In Breanne C. v. Southern York County Sch. Dist., the district court recently held that to confer meaningful educational benefit, an IEP must be designed to offer the child the opportunity to make progress in all relevant domains under the IDEA, including behavioral, social, and emotional domains. 732 F.Supp.2d 474, 483 (M.D.Pa. 2010) (referencing M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 394 (3d Cir. 1996)). To provide meaningful benefit, a child’s IEP must be tailored to the unique, individual needs of the child consistent with the child’s potential. Ridgewood, 172 F.3d at 247; 34 C.F.R. Section 300.320(a). Finally, passing grades do not themselves establish that a child with disabilities is receiving sufficient educational benefits to satisfy the requirements of FAPE. Rowley, 458 U.S. at 202; D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 567 (3d Cir. 2010); Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474, 486 (M.D.Pa. 2010); Williamson County Board of Education v. C.K., 2009 U.S. Dist. LEXIS 15907, at *56 (M.D. Tenn. Feb. 27, 2009); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1028-1029 (8th Cir. 2003); Elida Local Sch. Dist. Bd. of Educ. v. Erickson, 252 F.Supp.2d 476, 490-491 (N.D. Ohio 2003); Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247, at *33 (N.D. Tex. April 11, 2002).

II. Analysis of Cases Regarding Student Progress and Potential

Battle v. Commonwealth of PA, 629 F.2d 269 (3d Cir. 1980).

The Third Circuit held that the procedural safeguards of the Education of the Handicapped Act (“EHA”) requires that every state which elects to receive federal assistance under EHA must provide all handicapped children with the right to a “free appropriate education” which requires individual attention to the needs of each handicapped child. Battle v. Commonwealth of PA, 629 F.2d 269, 280-281 (3d Cir. 1980). Consequently, the Third Circuit found that the application of the Commonwealth of Pennsylvania’s administrative policy which set a limit of 180 days of instruction per year for all children, handicapped or not, was incompatible with the emphasis on the individual of EHA. Id. at 281 (emphasis added). The Court noted that its decision did not tackle the substantive content of the educational programs at issue even though the statute provides for federal and state judicial review of individual educational programs which have been appealed through the statutory procedure. Id.

Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171 (3d Cir. 1988).

Through its analysis of the EHA, 20 U.S.C. §§ 1401-1461 (1982), EHA’s legislative history, and its interpretation of Bd. of Educ. v. Rowley, 458 U.S. 176 (1982), the Third Circuit in Polk v. Central Susquehanna Intermediate Unit held that Congress intended to afford children with special needs an education that would confer “meaningful benefit,” and not an education that afforded merely trivial educational benefits. 853 F.2d 171, 180 (3d Cir. 1988). The Third Circuit further explained that an appropriate Individualized Education Program (“IEP”) should provide “significant learning” to confer “meaningful benefit” upon a student. Id. at 180-184.

In Polk, the Third Circuit derived its interpretation of “meaningful benefit” from the text of the EHA and from the legislative history concerning the passage of EHA’s 1975 amendments. Id. at 181. The self-defined purpose of the EHA is to provide “full educational opportunity to all handicapped children.” Id. (referencing 20 U.S.C. Section 1412(2)(A) (emphasis added)). Similarly, the Senate Report on the 1975 Act defined “related services” as “transportation, developmental, corrective, and supportive services (specifically including at least speech pathology and audiology, psychological services, counseling services, physical and occupational therapy, and recreation) necessary for a handicapped child to fully benefit from special education.” Id. (referencing Sen.R.No. 168, 94th Cong., 1st Sess. At 42 (emphasis added)). The House Report echoed this language, citing the EHA’s “goal of providing each handicapped child with a free, full, public education.” Id. (referencing H.Rep.No. 332, 94th Cong. at 11 (1975) (emphasis added)); See also 121 Cong.Rec. 19482 (remarks of Senator Randolph, W. Virginia, Chair, Senate Subcommittee on the Handicapped) (discussing the goals of the EHA as “[a]chieving a goal of full educational opportunities”). While the Supreme Court instructed in Rowley that Congress did not intend to provide “optimal” benefit, EHA’s use of the phrase “full educational opportunity” and the EHA’s legislative history, indicated to the Third Circuit a Congressional intent to afford more than a trivial amount of educational benefit. Id.

M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3d Cir. 1996).

The Third Circuit held that when an IEP fails to confer meaningful educational benefit to a student, that student has been deprived of the appropriate education guaranteed by IDEA. M.C. v. Central Regaionl Sch. Dist., 81 F.3d 389, 396 (3d Cir. 1996). In order to comply with the IDEA an IEP must be designed to allow a student to make “meaningful educational progress.” Id. at 394. Here, the Third Circuit found that the school district failed to provide an appropriate program (including parent training) and placement that would allow the Student to reduce his severe self-stimulatory behavior or improve his toileting, eating, and communication skills. Therefore, the Third Circuit awarded the Student compensatory education. Id. at 392.

Ridgewood v. N.E., 172 F.3d 238 (3d Cir. 1999).

The Third Circuit held that a minimal amount of benefit or “more than a trivial educational benefit” does not equate with “meaningful progress,” and noted that IDEA “requires a satisfactory IEP to provide ‘significant learning.’ ” Ridgewood v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). Furthermore, the Third Circuit reinforced that there is no bright line rule on the amount of benefit required for an appropriate IEP, but rather a benefit is determined by carefully considering each special education student’s individual abilities and potential, and then determining the benefit on an individualized basis. Id. at 248.

T.R. v. Kingwood, 205 F.3d 572 (3d Cir. 2000).

The Third Circuit again held that “more than a trivial educational benefit” does not meet the “meaningful benefit” standard which is necessary to provide a child FAPE. T.R. v. Kingwood, 205 F.3d 572, 577 (3d Cir. 2000). Furthermore, educational benefit of an IEP “must be gauged in relation to a child’s potential.” Id. at 578 (quoting Ridgewood v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)). Here, the district court failed to explicitly apply the meaningful benefit requirement, yet the Third Circuit found that enough evidence was presented to meet the meaningful benefit standard, a “somewhat more stringent” standard than a “more than trivial benefit” standard. Id. at 577. The Third Circuit found testimony from the student’s teacher and two expert witnesses credible and sufficient to establish that the student received meaningful benefit from his IEP. Id.

de Mora v. Dept. of Public Welfare, 768 A.2d 904 (Pa. Cmwlth. 2001).

The Commonwealth Court of Pennsylvania found that for a county to meet its responsibility in an infants and toddler program, an Individual Family Service Plan (“IFSP”) must provide services that are “likely to produce progress, not regression or trivial … advancement.” deMora v. Dept. of Public Welfare, 768 A.2d 904, 907 (Pa. Cmwlth. Ct. 2001) (quoting Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 183 (3d Cir. 1988) (quoting Bd. of Educ. v. Diamond, 808 F.2d 987, 991 (3d Cir. 1986)). If an IFSP provides for multiple types of developmental service, i.e., speech therapy, occupational therapy, physical therapy, and special instruction, then each of the services must be likely to produce meaningful progress. Id. Meaningful progress can be tracked by clear progress reports; however, evidence of progress does not prove that a student made meaningful progress if a student is also privately receiving services. Id. at 907-908. Here, the Commonwealth Court found that the Student did not make meaningful progress in her occupational therapy, speech therapy, and special instruction goals because 1) the county did not provide any progress reports for occupational therapy; 2) the county provided progress reports for speech, but the Student was also receiving private services; and 3) the country provided one progress summary for special instruction, but it was impossible to determine from that document whether any progress reported related to the Student’s special instruction. Id. at 908.

West Chester Area Sch. Dist. v. Bruce C., 194 F.Supp.2d 417 (E.D. Pa. 2002).

The district court held that, as a matter of law, meaningful progress cannot be solely measured by a student’s grades while simultaneously disregarding the student’s potential. West Chester Area Sch. Dist. v. Bruce C., 194 F.Supp.2d 417, 421 (E.D. Pa. 2002). The Supreme Court clearly “repudiated the notion that grades can serve as IDEA’s litmus test: ‘We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a [FAPE].’ ” Id. (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982)). Where a student’s parent spends extensive time outside of the classroom with a student and provides such student with remedial and supplemental assistance, then the school district cannot claim the student made meaningful progress as a direct result of the student’s IEP. Id. The court further noted that, the Third Circuit has mandated that IDEA services “must be gauged in relation to the child’s potential.” Id. (quoting Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 185 (3d Cir. 1988)). Here, the district court found that the school district could not rely on the successful grades of the Student to assert the Student was making meaningful academic progress as a consequence of the Student’s IEP, in large part because the Student’s parent spent extensive time outside of the classroom with the Student and provided the Student with remedial and supplemental assistance. Id. Furthermore, the district court found that the school district failed to provide FAPE to the Student where it disregarded the significant discrepancies between the Student’s high verbal IQ and lower performance IQ, as well as between his verbal IQ and lower basic reading skills, spelling, and math reasoning. Id.

Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247 (N.D. Tex. April 11, 2002).

The district court held that a special needs student was eligible under IDEA despite “well above average” grades because a “true measure of a child’s educational performance is not strictly limited to an evaluation of his performance in academics . . . but also includes behavioral progress and the acquisition of appropriate social skills.” Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247, at *33 (N.D. Tex. April 11, 2002).

S.H. v. State Operated Sch. Dist. of the City of Newark, 336 F.3d 260 (3d Cir. 2003).

The Third Circuit held that meaningful educational benefit is an individual determination personal to each student. S.H. v. State Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 271 (3d Cir. 2003) (referencing Ridgewood v. N.E., 172 F.3d 238, 248 (3d Cir. 1999)). Here, the Third Circuit noted that the District’s proposed IEP did not provide meaningful benefit to the Student, who suffered from severe, profound sensorineural hearing loss, because the IEP proposed to change the child’s placement, yet the IEP 1) did not include an extended school year (“ESY”) even though it noted in its IEP that the Student needed ESY to progress; 2) did not address the Student’s residual hearing; 3) used inappropriate testing to determine the Student’s performance levels; and 4) implemented a curriculum in a way that might prove detrimental to the student, as the school district’s proposed curriculum adhered to a “total communication” philosophy which differed from the communication modality at the school the Student then attended. Id. at 272-273. The court found that the school district’s execution may be detrimental to the Student as she was at an important stage in her language acquisition. Id.

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th Cir. 2003).

The Eighth Circuit found an IEP inappropriate for lack of a behavior management plan even though the student had passing grade and there was testimony of some educational progress. Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1028-1029 (8th Cir. 2003).

Elida Local Sch. Dist. Bd. of Educ. v. Erickson, 252 F.Supp.2d 476 (N.D. Ohio 2003).

The district court held that a student with leukemia continued to be eligible for special education under other health impairment (“OHI”). Elida Local Sch. Dist. Bd. of Educ. v. Erickson, 252 F.Supp.2d 476, 492 (N.D. Ohio 2003). Here, the district court deferred to the hearing officer’s decision which relied on the parents’ expert who testified, unrebutted, that the student’s leukemia “will adversely affect her educational performance” even though the student’s current achievement was consistent with the child’s IQ, and the student’s grades were good. Id. at 490-491.

Leighty v. Laurel Sch. Dist., 457 F.Supp.2d 546 (W.D. Pa. 2006).

The district court found that while an IEP must be reasonably calculated to enable a student to receive meaningful educational benefit in light of the student’s intellectual potential, the IDEA does not require a school district to eliminate a discrepancy that renders a student disabled in the first place. Leighty v. Laurel Sch. Dist., 457 F.Supp.2d 546, 557-558 (W.D. Pa. 2006) (referencing Mather v. Hartford Sch. Dist., 928 F.Supp. 437, 446-447 (D.Vt. 1996)). Here, the parents contended that the IEP was not reasonably calculated to close or narrow the gap between their child’s level of achievement and their child’s level of ability. Id. at 557. As a result, the parents asserted that their child did not receive meaningful educational benefit. Id. The district court found that a learning disability, by its very nature, renders it difficult for a child to learn on a level consistent with his or her intellectual potential. Id. at 558. Since the child advanced from one grade to the next, in spite of the child’s severe learning disability, the district court found that the child’s IEP was calculated to allow her to make progress. Id.

Query: Does the existence of research-based instruction and the current focus of IDEA upon providing meaningful educational benefits to allow a student to move toward independence and self-sufficiency call this holding into question? 20 U.S.C.A. Section 1400; Polk, 853 F.2d at 180-184

L.E. v. Ramsey, 435 F.3d 384 (3d Cir. 2006).

The Third Circuit found that a segregated placement was appropriate, despite parental concern, because the student received meaningful benefit in the segregated setting and could not have received such meaningful benefit in an integrated setting. L.E. v. Ramsey, 435 F.3d 384, 394 (3d Cir. 2006). Furthermore, the Circuit Court found that providing services by unnamed professionals can provide FAPE if evidence exists to show that the services will confer a meaningful educational benefit. Id. at 395. Here, consideration of the actual services to be provided, the adequacy of such services, and the certifications and experiences of the providers were all considered when determining if the related services would confer a meaningful educational benefit. Id. at 395.

Trafford v. C.F., 2006 WL 840334 (W.D. Pa. March 28, 2006).

The district court held that in order to provide FAPE, the student’s IEP must be “reasonably calculated to enable the child to receive educational benefits.” Trafford v. C.F., 2066 WL 840334, at *7 (W.D. Pa. March 28, 2006) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). Furthermore, the IDEA “calls for more than a trivial educational benefit,” and an appropriate IEP should provide “significant learning” and confer “meaningful benefit” upon a student. Id. (referencing Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 180-184 (3d Cir. 1988)). Here, the District Court found that the student’s IEP did not provide “significant learning” to confer “meaningful benefit” upon a student because 1) the IEP’s short-term instructional objectives were vague (for example, “[Student] will write a correct sentence.”); 2) the IEP’s annual goals were not measurable (for example, the goals were measured in terms of grade equivalencies); 3) the IEP failed to include a behavior management plan even though the record reflected that the student had behavioral issues; and 4) the percentage accuracies of many of the expected levels of achievement were reduced from their earlier levels rendering “implicit evidence that the [IEP] did not confer [the Student] with a meaningful educational benefit as the IDEA requires.” Id. at *8.

Lauren P. v. Wissahickon Sch. Dist., 2007 WL 1810671 (E.D. Pa. June 20, 2007) (abrogated on other grounds) Lauren P. v. Wissahickon Sch. Dist., 310 Fed. Appx. 553, 243 Ed. Law Rep. 660 (3d Cir. 2009).

The district court found that in “examining the parameters of a [FAPE], the Court of Appeals has held that the IDEA ‘calls for more than a trivial educational benefit’ and requires a satisfactory IEP to provide ‘significant learning’ and confer ‘meaningful benefit.’ ” Lauren P. v. Wissahickon Sch. Dist., 2007 WL 1810671, at *3 (E.D. Pa. June 20, 2007) (quoting Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 182, 184 (3d Cir. 1988)). Here, the school district failed to confer any meaningful educational benefit to the Student because 1) it failed to respond to known deficiencies in the Student’s IEP as indicated by an Evaluation Report, and 2) it failed to provide a consistent policy for handling the Student’s behavioral problems. 2007 WL 1810671, at *7.

Marple Newtown Sch. Dist. v. Rafael, 2007 WL 2458076 (E.D. Pa. Aug. 23, 2007).

The district court held that a student with disabilities is denied FAPE where the student’s IEP is not reasonably calculated to confer meaningful educational benefit upon the student. Marple Newtown Sch. Dist. v. Rafael, 2077 WL 2458076, at *5 (E.D. Pa. Aug. 23, 2007) (referencing Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d Cir. 2006)). Here, the school district’s IEP did not confer sufficient educational benefit upon the Spanish speaking Student because 1) it lacked a description of the “push-in” English as a Second Language (“ESL”) program and how the ESL program would be adapted to meet the Student’s unique needs; 2) the regular education teacher was not certified in ESL; 3) the IEP’s goals failed to have a particular purpose or scope; 4) the IEP goals remained static all year; 5) the Student was never evaluated in his native tongue; and 6) the Student qualified for ESY because of regression during the year. Id. at *6-8.

W.H. by B.H. and K.H. v. Clovis Unified Sch. Dist., 52 IDELR 258 (E.D. Cal. 2009).

The district court found that neither the good grades on a second-grader’s report card nor his above-average performance on a statewide examination disqualified the student who was diagnosed with attention deficit hyperactivity disorder (“ADHD”) from receiving services under the IDEA. W.H. by B.H. and K.H. v. Clovis Unified Sch. Dist., 52 IDELR 258 (E.D. Cal. 2009). Here, the student was unable to complete written assignments due to his ADHD, and the district failed to assess the student in the area of written expression.

D.S. v. Bayonne Bd. of Educ., 602 F.3d 553 (3d Cir. 2010).

The Third Circuit held that at a minimum an “IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (quoting Chambers v. Philadelphia Bd. of Educ., 587 F.3d 176, 182 (3d Cir. 2009) (quoting Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004)). The Third Circuit noted that it has consistently “declined to adopt bright line rules to determine whether a student is receiving a meaningful educational benefit under IDEA. Id. (referencing Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999) (what benefit is “appropriate” under the IDEA is gauged in relation to a child’s potential); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 184 (3d Cir. 1988) (“The educational progress of a handicapped child . . . can be understood as a continuum where the point of regression versus progress is less relevant than the conferral of benefit.”); Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 534 (3d Cir. 2010) (“. . . the [IDEA] requires that school districts prepare the IEP’s based on the student’s needs; so long as the IEP responds to the needs, its ultimate success or failure cannot retroactively render it inappropriate.”).

Nevertheless, the Third Circuit found that evidence of successful grades are less indicative of meaningful progress if the child is educated in a special education classroom as opposed to being educated in a regular education classroom. Id. at 567 (referencing Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982) (emphasis added)). Here, while the student received successful grades in special education classrooms, the Student’s IEP did not incorporate the “specific remedial techniques and provisions for accommodations that the teachers and evaluators who worked with [the student] had proposed…” D.S., 602 F.3d at 566. Consequently, the Third Circuit found that the IEP did not allow the student to make meaningful educational benefit. Id.

Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474 (M.D.Pa. 2010).

The district court held that an IEP confers a meaningful educational benefit when it provides more than a trivial attempt at meeting the educational needs of the student, and it is desigend to offer the child the opportunity to make progress in all relevant domains under the IDEA, including behavioral, social, and emotional. Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474, 483 (M.D.Pa. 2010) (referencing M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 394 (3d Cir. 1996)). In analyzing this case, the district court examined two separate time periods. First, it looked at the Student’s sixth grade and found that the Student’s good grades did not indicate that the Student’s IEP conferred meaningful educational benefit. Id. at 485. Rather, the district court found that the Student made progress due to the intensive “work with [Student’s] family at home” and an outside reading tutor. Id. The second time period analyzed occurred during the Student’s seventh and eighth grade school years. Resulting from an evaluation report indicating progress at the end of the sixth grade and the Student’s good grades, the school district exited the Student from special education. Id. at 485-486. The court found that the school district inappropriately exited the Student because the evaluation it used to track the Student’s progress was based on outdated assessments and any positive grades the Student earned could not fully be attributed to the Student’s IEP because the Student received considerable outside help from her parents and a private tutor. Id. at 486.

Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712 (3d Cir. 2010).

The Third Circuit held that even though the text of the IDEA statutorily limits a school district’s obligation to provide FAPE only to students under the age of 21, an individual over the age is still eligible for compensatory education if a school district fails to provide such student FAPE prior to the student turning 21. Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712, 717-718 (3d Cir. 2010). Under the IDEA, a court in that situation may grant compensatory education through its equitable power. Id. at 718.

In line with prior decisions, the Third Court held that FAPE is provided where an IEP, at a minimum, is reasonably calculated to enable the student to receive meaningful educational benefits in light of the student’s intellectual potential. Id. at 717 (referencing Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.2d 171, 181 (3d Cir. 2004); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 181 (3d Cir. 1988)); see also 20 U.S.C. Section 1414(d)(1)(A); Bd. of Educ. v. Rowley, 458 U.S. 176, 189 (1982).

Here, the school district refused to provide the Student with an IEP once the Student turned 21 even though the school district agreed to fund the Student’s compensatory education past her twenty-first birthday. Id. at 715-716. The Third Circuit held that it may grant compensatory education through its equitable power past the Student’s twenty-first birthday and include in such equitable relief the directive that the District must annually reevaluate the Student, provide her with annual IEPs, and serve as her local educational agency for the duration of the Student’s three years of compensatory education. Id. at 716, 720.

III. FAPE is More than Just Academics

It is abundantly well-settled that “education” extends beyond discrete academic skills, and includes the social, emotional, and physical progress necessary to move the child toward meaningful independence and self-sufficiency consistent with the child’s cognitive potential. M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 392-394 (3rd Cir. 1996); Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 181-182 (3d Cir. 1988); Kreulle v. New Castle County School District, 642 F.2d 687, 693 (3rd Cir. 1981); Armstrong v. Kline, 629 F.2d 269 (3rd Cir. 1980); Bucks County Public Schs. v. Dept. of Ed., 529 A.2d 1201 (Pa. Cmwlth. 1987); Big Beaver Falls Area Sch. Dist. v. Jackson, 615 A.2d 910, 914 (Pa. Cmwlth. 1993). Therefore, for an IEP to be appropriate, it must offer a child the opportunity to make progress which is “meaningful” in all relevant domains under IDEA, including behavioral, social, and emotional. M.C., 81 F.3d at 394; Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999).

IV. Analysis of Cases Regarding Non-Academic Progress

Kruelle v. New Castle County Sch. Dist., 642 F.2d 687 (3d Cir. 1981).

The Third Circuit held that a six-hour school day was inappropriate for a student who suffered from cerebral palsy and who required continuous medical supervision. Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 693 (3d Cir. 1981). Furthermore, the Third Circuit noted that medical, social, and emotional services at a full-time residential placement were essential prerequisites to meet the standard of a free appropriate education for this particular student. Id. at 694.

Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171 (3d Cir. 1988).

The Third Circuit held that a rigid rule under which a school district refused to consider providing physical therapy to a student who suffered severe mental and physical impairments conflicted with the student’s procedural right to an individualized program, and that for some children, academic progress is secondary to physical, social, and emotional progress. Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 177-178 (3d Cir. 1988). Moreover, the Third Circuit held that while the student’s disabilities impeded the student’s ability to learn in a traditional classroom, the student must be provided a program emphasizing therapeutic interventions to address the child’s global needs.

M.C. v. Central Regaionl Sch. Dist., 81 F.3d 389 (3d Cir. 1996).

The Third Circuit held that when an IEP fails to confer meaningful educational benefit to a student, that student has been deprived of the appropriate education guaranteed by IDEA. M.C. v. Central Regaionl Sch. Dist., 81 F.3d 389, 396 (3d Cir. 1996). In order to comply with the IDEA an IEP must be designed to allow a student to make “meaningful educational progress.” Id. at 394. Here, the Third Circuit found that the school district failed to provide an appropriate program (including parent training) and placement that would allow the Student to reduce his severe self-stimulatory behavior or improve his toileting, eating, and communication skills; therefore, the Third Circuit awarded the Student compensatory education. Id. at 392.

Stroudsburg Area Sch. Dist. v. Jared M., 712 A.2d 807, 810 (Pa. Comwlth. 1998).

The court held that education includes social and emotional growth. Stroudsburg Area Sch. Dist. v. Jared M., 712 A.2d 807, 810 (Pa. Comwlth. 1998). The court found that the school district denied the student FAPE because the school district failed to include the student’s emotional and social needs in its IEPs and thus were not calculated to benefit the student’s academics. Id.

Independence Sch. Dist. No. 284 v. A.C., 258 F.3d 769 (8th Cir. 2001).

The Eighth Circuit reversed a district court decision which limited “education” solely to academics. Independence Sch. Dist. No. 284 v. A.C., 258 F.3d 769, 774 (8th Cir. 2001). The court ordered residential placement for a chronically truant, drug using, promiscuous, and oppositional student. Id.

Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247 (N.D. Tex. April 11, 2002).

A district court found that a student, despite above average grades and a high IQ, was eligible for special education because education includes “behavioral progress and the acquisition of appropriate social skills.” Venus Independent Sch. Dist. v. Daniel S., 2002 U.S. Dist. LEXIS 6247 (N.D. Tex. April 11, 2002).

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th Cir. 2003).

The Eighth Circuit found an IEP inappropriate for its lack of a behavior management plan even though the student had passing grades and there was some testimony that the student progressed academically. Neosho R-V Sch. Dist. v. Kathy Clark, 315 F.3d 1022, 1029-1030 (8th Cir. 2003).

Lamoine Sch. Committee v. Ms. Z., 353 F.Supp.2d 18 (D. Me. 2005).

The district court held that an IEP “must target all of a child’s special needs, whether they be academic, physical, social or emotional.” Lamoine Sch. Committee v. Ms. Z., 353 F.Supp.2d 18 (D. Me. 2005).

Mr. & Mrs. I. v. Maine Sch. Administrative District 55, 416 F.Supp. 2d 147 (D. Me. 2006).

The district court held that a student with Asperger’s Syndrome was eligible for special education due to the student’s social, emotional, and behavioral needs despite the student’s strong academics. Mr. & Mrs. I. v. Maine Sch. Administrative District 55, 416 F.Supp. 2d 147, 159-160 (D. Me. 2006).

Trafford v. C.F., 2006 WL 840334 (W.D. Pa. March 28, 2006).

The court found that the school district denied a student FAPE in part due to the school district’s failure to include a Behavior Management Plan (“BMP”), a “serious omission.” Trafford v. C.F., 2006 WL 840334, at *8 (W.D. Pa. March 28, 2006).

Bend-Lapine School District v. K.H., 2007 U.S. App. LEXIS 13954 (9th Cir. June 11, 2007).

The court found the student’s IEP inappropriate because it lacked present educational levels which should have provided an accurate baseline regarding the students behavior among other things. Bend-Lapine School District v. K.H., 2007 U.S. App. LEXIS 13954, at *2 (9th Cir. June 11, 2007).

The district court awarded compensatory education where a school district denied a student FAPE by failing to address the student’s behavioral issues through a Behavior Modification Plan (“BMP”). Lauren P. v. Wissahickon Sch. Dist., 2007 WL 1810671 (E.D. Pa. June 20, 2007) (abrogated on other grounds).

Richardson Independent Sch. Dist. v. Michael Z., 2008 US Dist. Lexis 32928 (N.D. Tex., 2008).

The district court noted that the therapeutic interventions to address the child’s emotional needs were inextricably intertwined with the child’s ability to learn. Richardson Independent Sch. Dist. v. Michael Z., 2008 US Dist. Lexis 32928 (N.D. Tex., 2008).

Springfield Sch. Committee v. Doe, 623 F. Supp. 2d 150 (D. Mass. 2009).

The district court held that the school district denied the student FAPE when it failed to reevaluate the student and recommend an IEP in light of the student’s significant cognitive, attention, and behavioral difficulties, truancy issues during a two-month period, and a history of tardiness to class and leaving class abruptly. Springfield Sch. Committee v. Doe, 623 F. Supp. 2d 150, 161-162 (D. Mass. 2009).

Eschenasy v. New York City Dept. of Educ., 604 F.Supp 2d 639 (S.D.N.Y. 2009).

The district court found that a school district could not avoid paying for a student’s placement merely by attributing the student’s failing grades to truancy and drug use. Eschenasy ex rel. Eschenasy v. New York City Dept. of Educ., 604 F.Supp. 2d 639, 650 (S.D.N.Y. 2009). The court found that the fact that the student cut classes at her private academic boarding school, took drugs, and stole classmates’ property as a result of a conduct disorder did not make her ineligible for special education services under the IDEA. Id.

Dumont Bd. of Educ. v. J.T., 2010 US Dist. LEXIS 2781 (D.N.J. Jan. 13, 2010).

The district court awarded tuition for a private program because the IEP failed to include a sensory diet and a behavior plan. Dumont Bd. of Educ. v. J.T., 2010 US Dist. LEXIS 45413, at *17-19 (D.N.J. May 10, 2010).

Matanuska-Susitna Borough Sch. Dist. v. D.Y, 2010 U.S. Dist. LEXIS 17174 (D. Alaska Feb. 24, 2010).

The district court awarded $50,000 in compensatory education because the school district failed to provide FAPE in part as a result of not providing an adequate behavioral intervention plan and not addressing the student’s social needs. Matanuska-Susitna Borough Sch. Dist. v. D.Y, 2010 U.S. Dist. LEXIS 17174 (D. Alaska Feb. 24, 2010).

Breanne C. v. Southern York County Sch. Dist., 732 F.Supp.2d 474 (M.D.Pa. 2010).

D.S., et al. v. Bayonne Bd. of Educ., 602 F.3d 553 (3d Cir. 2010).

The Third Circuit ordered tuition reimbursement because the IEP did not provide goals or address the student’s need for reading and language remediation, speech therapy, auditory/memory deficits, and socialization issues, and further failed to incorporate recommendations regarding these issues from private evaluators and teachers. D.S., et al. v. Bayonne Bd. of Educ., 602 F.3d 553, 563 (3d Cir. 2010) (emphasis added).

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