How Adequate Must a “Free and Appropriate” Public Education Be for Children with Disabilities? Endrew F. v Douglas County School District

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On March 22, 2017, the US Supreme Court decided Endrew F. v Douglas County School District, which clarifies the rights of children with disabilities under the Individuals with Disabilities Education Act (IDEA). Endrew—closely watched in the education and health policy community—took on added interest because of the Court’s timing. The case, a challenge to the adequacy of the special education services provided to a child with severe autism, overturned the legal standard applied by the lower court in reviewing the adequacy of the school system’s services. The author of this standard, which strongly favored the school district, was then 10th Circuit Judge—now Supreme Court Justice—Neil Gorsuch, whose confirmation process was underway when the Court handed down its unanimous ruling. In rejecting a narrow approach to the rights of children, the Supreme Court also resolved a split among the appellate courts regarding the proper approach to IDEA appeals, establishing a judicial review standard more generous to the children covered by the law’s protections.

The IDEA gives qualified children with disabilities the right to a “free appropriate public education,” including “special education” and “related services” (ie, services required to assist a child with a disability benefit from special education, such as developmental therapy, transportation, and other supportive services). That the IDEA creates a privately enforceable right to such services was explicitly recognized by the Supreme Court in the landmark case Board of Education of Hendrick Hudson Central School Dist, Westchester Cty V Rowley (1982).

But as important as it was, Rowley left for another day the question of the judicial standard of review that courts should use when reviewing the adequacy of school districts’ performance for children. In other words, Rowley did not reach the more precise question of how much effort is enough. In Amy Rowley’s case the evidence showed that despite a profound hearing loss, she was educationally thriving with the level of assistance she was receiving. The Rowley family argued that the proper standard of review under the IDEA was fully equal opportunity, which in her situation would necessitate an in-class interpreter to supplement her hearing aid. But the Court instead concluded that the IDEA is satisfied if the assistance a child receives is “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” This test of “reasonableness” itself created important ambiguities, however.

Endrew squarely raised the question that went unaddressed in Rowley: What is reasonable where services to children are concerned? At the heart of the case was the Endrew’s “individualized education plan (IEP)”—the “centerpiece” of the IDEA, according to the Court. Unlike Amy Rowley, Endrew F. was doing anything but educationally thriving. After years of stalled progress, his parents had placed him in a private school where he proceeded to make significant gains. His parents then sought reimbursement for the private placement. The school system refused; citing the 10th Circuit post-Rowley precedent under a ruling written by Judge Gorsuch,1 the school system argued that it was required simply to show that its IEP was “calculated to confer an educational benefit that is merely more than de minimus.”

In his opinion for the Court, Chief Justice Roberts noted that while Rowley made clear that the IDEA does not guarantee any particular level of educational outcome, the 10th Circuit was incorrect in inferring that the standard of review should hover just above no progress. In Roberts’ view, it was an error to read the Rowley reasonableness standard as being satisfied as long as an IEP confers “any educational benefit.” Instead, he wrote, in determining whether a school system has acted lawfully, the proper standard of review is whether the IEP offered by a school is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

In this respect, the Court’s decision tracks other rulings in which the issue is how to weigh individual rights under social welfare laws designed to remedy discrimination against persons with disabilities. For example, in considering the right of Medicaid beneficiaries to receive medically necessary care in the most integrated setting under the Americans with Disabilities Act (ADA), the Court similarly interpreted the law as requiring individualized determinations within a non-discrimination context.2 Where individual rights are concerned, wrote the Chief Justice in Endrew, an IEP must be tailored to the child whose case is under review, must consider the child’s overall circumstances and needs, and must be “fact-intensive,” with an eye toward progress. And while the judgment of professionals is to be given deference (similar to the deference accorded to treating professionals in an ADA integration context), such an approach, according to the Court, is a far cry from de minimus. Instead, the IEP must be calibrated to achieve progress for a specific child, not to validate the type of “academic stagnation” that a de minimus standard invites.

In grappling with what this meant, the Court once again rejected the equal opportunity standard advanced in Rowley. But this did not mean that an IEP could be anything less than robust. Indeed, where education is concerned, the Court identified a strong and objective measure of adequacy—the establishment, whenever possible, of a goal of grade-level performance and classroom integration, since such a setting provides the strongest context in which to measure educational progress against objective norms. In the Court’s view, the development of the IEP should have as its goal positioning children with disabilities to succeed in the same way success is measured generally—the ability to move through a general education curriculum and advance from grade to grade. But, the Court went on to say, even where a child’s disability prevents grade-level advancement, a de minimus standard is wrong, because in such a case a child “can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to sitting idly,… awaiting the time when they were old enough to drop out.” For this reason, the IDEA is not satisfied with “anything less than an IEP reasonably calculated to enable a child to make progress in light of the child’s circumstances.”

It took more than 40 years for the US Supreme Court to clarify that under the IDEA, children with disabilities have the right to make progress, not simply to a paper plan that yields virtually no tangible results. How Endrew is implemented in the years to come will represent a fundamental measure of how legal rights translate into practice. More importantly, the implementation of Endrew will stand as a bellwether of the nation’s social and moral commitment to its most vulnerable children.



  1. Thompson R2–J School District v Luke P., 540 F. 3d 1143 (2008)
  1. Olmstead v L.C., 527 U.S. 581 (1999)


About the Author

Sara Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy and founding chair of the Department of Health Policy at the George Washington University School of Public Health and Health Services. She also holds professorships in the Schools of Law and Medicine and Health Sciences. A graduate of Wesleyan University and Boston University Law School, Rosenbaum has devoted her career to issues of health justice for populations who are medically underserved as a result of race, poverty, disability, or cultural exclusion. Between 1993 and 1994, Rosenbaum worked for President Clinton, where she directed the drafting of the Health Security Act and designed the Vaccines for Children program, which today provides near-universal immunization coverage to low-income and medically underserved children. Rosenbaum is the leading author of Law and the American Health Care System (Foundation Press, 2012) and has received many national awards for her work in public health policy. She is past chair of AcademyHealth and a member of the Institute of Medicine. Rosenbaum also has served on the CDC Director’s Advisory Committee and as a Commissioner on the Congressional Medicaid and CHIP Payment and Access Commission (MACPAC), which she chaired from January 2016 through the expiration of her term in April, 2017.

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