Supreme Rulings: Are Endrew and Fry Changing the Profile of Special Education?

Cynthia A. Dieterich, Ph.D.

Assistant Professor

Sacred Heart University

Farrington College of Education

Leadership and Literacy

5151 Park Avenue

Fairfield, CT 06825

703-304-0386

E-mail dieterichc@sacredheart.edu

Nicole D. Snyder, Esq.

Shareholder

Latsha, Davis, & McKenna, P.C.

350 Eagleview Boulevard, Suite 100

Exton, PA 19341

Phone 610-524-8454

Fax 610-524-9383

E-mail nsnyder@ldylaw.com

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Supreme Rulings: Are Endrew and Fry Changing the Profile of Special Education?

It is highly unusual for the Supreme Court of the United States (SCOTUS) to accept special

education cases for review as evidenced by the less than 12 cases heard over the last 42 years since the

enactment of P.L. 94-142. However, this past year, the Supreme Court heard two special education cases

that can significantly influence the practices and policies of service delivery for students with disabilities.

Endrew F.V. v. Douglas County School District1 tested the standard of what is an educational

benefit established long ago in Hendricks Board of Educ. v. Rowley,2 the first special education case

reviewed by the Supreme Court. Chief Justice Roberts delivered the opinion of the Court March 22, 2017

in a decision that was eagerly awaited in the special education community particularly since the standard

of “some educational benefit”3 had been the benchmark to measure the degree a school district was

providing a student with a disability a FAPE under IDEA4 for 35 years. During the convening thirty-five

years, lower courts interpreted the Rowley decision to mean that a child's IEP is adequate as long as the

benefit is merely more than de minimis,5 but others established a higher standard—requiring a meaningful

educational benefit. 6 The Court in Endrew, shifted the paradigm to require schools and parents to

negotiate a FAPE that is appropriately ambitious in light of the individual student’s circumstances with

the expectation that every child has the opportunity to meet challenging objectives.7

A second case, Fry v. Napoleon Community Schools8 challenges whether a student (through their

parent or guardian) with an IEP can directly sue a school district for damages under ADA and Section 504

rather than pursing all the procedures available to parents and guardians under IDEA. In an opinion that

was rendered shortly before the ELA proposal deadline, the U.S. Supreme Court held that exhaustion of

the IDEA’s administrative procedures is unnecessary where the gravamen of the plaintiff’s suit is

something other than the denial of the IDEA’s core guarantee of a FAPE. The IDEA guarantees

individually tailored educational services while Title II and §504 promise nondiscriminatory access to

public institutions. To determine if the complaint truly defines a denial of FAPE or disability-based

discrimination, the Court asked two questions:

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1) Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred

at a public facility that was not a school— a public theater or library?

2) Could an adult at the school—an employee or visitor— have brought the same grievance?

When the answer to those questions is yes, a complaint that does not expressly allege the denial of a

FAPE is also unlikely to be truly about that subject.

Herein, parents did not challenge the Districts’ argument that all of student’s educational needs

were met rather, per an earlier OCR finding, that the Districts had infringed student’s right to equal

access. The Supreme Court noted, using the questions above, that parents could have filed essentially the

same complaint if a public library or theater had refused admittance to the service dog. Finally, the Court

held, on remand, that the Circuit Court below should establish whether, (or to what extent),Parents

invoked IDEA’s dispute resolution process before filing and whether their actions reveal that their

complaint is indeed the denial of a FAPE, thus necessitating further exhaustion.

This paper will provide an overview of the Supreme Court’s decisions in both cases. It will

address how each directly impacts the nature of special education for students with disabilities. This

paper is also intended to highlight implications for attorneys and school leaders who rely on decisions

from the high court to advise clients and school district employees.

Endrew v. Douglas

In Endrew, the family of a child with ASD along with support from the autism advocacy

community, Autism Speaks, petitioned the Supreme Court of the United States arguing that Endrew did

not demonstrate measurable progress on goals and objectives contained in his IEP. Endrew is a student

identified with an autism spectrum disorder who engages in “stereotyped movements, resistance to

environmental change or change in daily routines, and unusual responses to sensory experiences."9 He

attended “Douglas County School District from preschool through fourth grade. Each year, his IEP Team

drafted an IEP addressed to his educational and functional needs.”10 Even though “his teachers described

him as a humorous child with a ‘sweet disposition’ who ‘show[ed] concern for friends’”11 he was not

making academic and functional skill progress. He continued to exhibit “multiple behaviors that inhibited

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his ability to access learning in the classroom"12 including screaming in class, climbing over furniture,

running away from school, and demonstrating “severe fears of commonplace things like flies, spills, and

public restrooms.”13 Endrew’s parents were frustrated because the IEP goals and objectives were

essentially the same year–to-year “indicating that he was failing to make meaningful progress toward his

aims.”14 Given the proposed fifth grade plan was no different than previous years, his parents removed

him from Douglas County School District and enrolled him in a private school for students with ASD

where his “behavior improved significantly, permitting him to make a degree of academic progress that

had eluded him in public school.”15 His parents then sought reimbursement for tuition at the private

school claiming that the school district plans over a period of three years the IEP was not significantly

different for addressing his challenging behaviors.

FAPE for All Students with Disabilities

In rendering a unanimous decision, the Court began with a review of the claims and findings in

the first special education heard by the Supreme Court Hendricks v. Rowley16 as a backdrop to Endrew.

Specifically, Amy Rowley’s parents argued “that the school district was required to provide instruction

and services that would provide Amy an ‘equal educational opportunity’ relative to children without

disabilities”17 while the “school district…contended that the IDEA ‘did not create substantive individual

rights’; the FAPE provision was instead merely aspirational.”18 In the end, “neither position carried the

day.”19 Specifically, the Court rejected the family’s claim an equal education opportunity applies to a

FAPE since one word ‘equal’ could not capture all the nuances of opportunities or services. The Court

also viewed the standard as "’entirely unworkable,’ apt to require ‘impossible measurements and

comparisons’ that courts were ill suited to make.”20 Additionally, in rejecting the school board’s claim

“that the FAPE requirement was actually no requirement at all” 21 they laid the groundwork for a middle

of the road decision suggesting that even though Congressional substantive requirements under the IDEA

are vague—“the Act guarantees a substantively adequate program of education to all eligible children.”22

Hence, a FAPE is received if the child’s IEP is reasonably calculated to enable the child to receive

educational benefits."23 “For children receiving instruction in the regular classroom, this would generally

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require an IEP "reasonably calculated to enable the child to achieve passing marks and advance from

grade to grade."24 Unfortunately, in Rowley, the Court confined the analysis to one case with one set of

facts rather than addressing the Act as a whole that “requires States to ‘educate a wide spectrum" of

children with disabilities and that "the benefits obtainable by children at one end of the spectrum will

differ dramatically from those obtainable by children at the other end,” we declined ‘to establish any one

test for determining the adequacy of educational benefits conferred upon all children covered by the

Act.’"25 It was then the intent of the Court to address the needs of all students with all disabilities across

the spectrum of abilities and challenges.

Appropriately Ambitious Supplants Some Educational Benefit

In its decision, the Court ruled it is reasonable for parents to expect their child to make progress

in their education program IEP that is “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.”26 Hence,

the Court established a new standard to address the progress of all students with disabilities and not the

facts of one case and one set of circumstances. This rejects the lower court opinion of Endrew27 that an

IEP only needs to provide an educational benefit that is “merely more than de minimis”28 which the lower

court reasoned, satisfied the long established standard that a student is receiving a FAPE if he/she is

making some educational progress. A standard of some progress that was established as the measure of a

FAPE in Rowley. 29 As a result of their pursuit, the Endrew case arguably changed the special education

landscape that had been laid for over three decades, particularly in those Circuits implementing the less

ambitious standard. Families of children with a disability can no longer expect a minimal education, but

one that challenges their child and is appropriately ambitious.

However, in rendering their opinion, the Supreme Court did not indicate how to evaluate what is

“appropriately ambitious” leaving opportunities for school leaders, attorneys, and families to collaborate

toward a common goal of what is in the best interest of the child which has long been the intent of IDEA

when it was first promulgated in 1975 as EAHC. 30 This can be a moment of either struggling yet again

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with a new interpretation of a FAPE that puts school leaders and parents not much further ahead than they

were pre-Endrew. Or is a historical opportunity for all stakeholders to refresh what it means to provide a

student with a disability a free appropriate public education. In light, of the SCOTUS opinion in can be

suggested that the decision is laced with ambiguity leaving school leaders and attorneys no further ahead

than it was prior to Endrew or an opportunity for substantive changes in how schools and parents

negotiate a child’s FAPE.

Post-Endrew Analysis

Legal experts began to provide an analysis of the Endrew within a few weeks of the SCOTUS

decision. Analyses begin to dissect the meaning of the decision for attorneys and school leaders under

the framework of providing a FAPE that is appropriately ambitious to meet the needs of the child in light

of his or her circumstances. Osborne and Russo review Endrew within the context of the Rowley

standard “some educational benefit” as interpreted across Circuit Courts since the Rowley ruling. They

argue that “[t]he disagreement over the correct standard to be applied in evaluating whether students with

disabilities are receiving FAPE is more than an argument over semantics, or adjectives…”31 In so far,

“[t]he word some can be understood to mean more than nothing whereas meaningful connotes something

additional.”32 “While some courts have used meaningful to describe a standard that is more than trivial,

the Third Circuit’s opinions discernably state that its use of the word meaningful refers to a standard that

is designed to confer a significant benefit. While this standard sets a higher criterion, it does not go so far

as to require the best possible education or even one designed to maximize children’s potential.”33

They further note that rulings in both the Third and Sixth Circuits, have been “more in keeping

with both Rowley and Congressional intent than a standard that sets the bar just a bit higher than de

minimis.”34 However, even in light of the Endrew decision it remains to be determined “[h]ow much

above de minimis is required?”35 “Even establishing a more lucid definition of meaningful will likely

result in continued debate over what is required and ultimately more litigation. The bottom line is that no

“one size fits all” standard can be crafted to apply easily to all children with disabilities. Even with more

precise definitions, what amounts to a meaningful benefit for one child could be a minimal benefit to

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another. Thus, it is likely that even after Endrew F. courts will still need to evaluate the standard on a

case–by–case basis, considering each child’s unique abilities and potential. A new round of litigation is

not necessarily bad because each decision can help to provide a better understanding of what the IDEA

requires in given situations to best serve students with disabilities.”

Additional reaction to the Court’s decision as noted by Zirkel was “split within the special

education litigation community.”36 “Advocates touted the decision as dramatically elevating the

substantive standard for FAPE…37some school district lawyers asserted that the new standard is lower

than some interpretations of Rowley.”38 In the same vein as Osborne and Russo, Zirkel also discusses the

lack of clarity provided in the Court’s decision suggesting that the new standard is “somewhere between

the district’s “some benefit” interpretation and the “substantially equal” interpretation that Endrew’s

parents ultimately advocated.”39 In addition, Zirkel questioned whether “the “cogent and responsive”

review standard result in a shifting of the burden of persuasion from the filing party,40 which in most

substantive FAPE claims is the parent,41 to the district?42 And even more indirectly, will courts import the

new standard to the second step of the two–part test for procedural FAPE43 or will they instead adhere to

the “educational benefit” language of the amended IDEA?”44

In addition, since the substantive FAPE claim was remanded, Zirkel suggests that “the new

substantive standard might fit his attorney’s characterization as a ‘game changer,’45 because the Tenth

Circuit considered its substantive FAPE claim to be a close case,46 and, although the parents must also

prove that their unilateral placement was appropriate, the Tenth Circuit also characterized his progress

there as impressive.47 However, the outcome is not at all certain, with the requisite rulings extending to

the equities element for tuition reimbursement, including but not limited to whether the parents provided

timely notice.”48

Decker and Hurwitz also provide an analysis of the split decisions in the Circuit Courts over the

years in an attempt to apply the Rowley standard similar to the Osborne and Russo analysis. However,

they further frame the analysis with the new standard set by the SCOTUS that “resolved the split in the

circuits not by adopting one of these standards, but by creating a new standard. It clarified that IDEA

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required schools to provide an education that is ‘reasonably calculated to enable a child to make progress

appropriate in light of the child’s circumstances.’ The Court’s new standard is ‘markedly more

demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit,’ and offers guidance

that Rowley neglected to provide.”49 Furthermore, they concur that the decision lacked clarity as noted

by Osborne and Russo in so far as “the Endrew Court neglected to clear up confusion about the upper

limits of what is legally required under IDEA. The Court simply reiterated what it had decided in

Rowley—that students with disabilities are not entitled to an equal educational opportunity” 50 with the

reminder that “Endrew intentionally fails to provide ‘a bright-line rule’ to measure educational benefit.”51

Nonetheless, Decker and Hurwitz summarized the guidelines that where set by Endrew in the

following:

“Even children who are unable to achieve on grade level should still ‘have the chance to meet

challenging objectives.’ The Court clarified that IDEA ‘requires an educational program

reasonably calculated to enable a child to make progress appropriate in light of the child’s

circumstances.’ Accordingly, the Supreme Court vacated the Tenth Circuit’s decision, and

remanded only the issue of tuition reimbursement to the lower court for reconsideration. This

remand is currently pending review by the Tenth Circuit. In doing so, the Court clarified legal

standards that have previously been inconsistently applied across the federal courts.”52

Considering the lack of specificity, they suggest it is likely there will be an increases in special education

litigation, specifically for students with autism and the desire for parents to seek the “gold-standard

treatment for autism.”53

In the most recent scholarly analysis, Conn presents concerns and salient points in the Endrew

decision. By addressing points of concern, she teases out technical issues associated with the comparison

of Rowley and Endrew. Specifically, she notes three isses:

(1) Conflation of Statutes—Rowley was decided under EAHCA and Endrew under IDEA—

while “the definitions of FAPE and IEP remained the same in both”54 IDEA “incorporated

new initiatives, such as transition programs to help students succeed after high school,

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emphasis on research and technology, and emphasis on the needs of ethnically and culturally

diverse children…”55

(2) Missing information—“percentages of time Endrew spent in the special education classroom

versus the regular education classroom are not specified, neither in the district court opinion

nor in the Supreme Court opinion… If Endrew had been a child placed in a regular

classroom, he would have been akin to Amy Rowley. The “system” would have marked his

progress as it did Amy’s, by his performance on regular examinations, grades, and successful

passage from grade to grade.” Also missing, was information “about Endrew’s parents’

notification of intent to privately place Endrew, a procedural requirement that may have had

legal consequences.”56

(3) “Possible” vs. “Appropriate” Confusion—the decision “contributes to the false impression

that the requirement of LRE means that ‘when possible’ the child with disabilities must be

included in the regular classroom. Even though the Court ruled in Rowley used “possible”

§ 1412(a)(5) actually states, “To the maximum extent appropriate [italics added], children

with disabilities ... are educated with children who are not disabled.... ” Even in the most

recent form of IDEA “the child with a disability must be included in the regular classroom

when ‘appropriate,’ not when ‘possible.’ The Endrew F. majority had previously noted that

wording, with correct IDEA citation, earlier in their decision.”57

Conn then concludes with an analysis of salient points in the decision recognizing that “Endrew F.

decision did establish significant clarifications.”58 “Amy and Endrew are children on opposite ends of the

disabilities spectrum. The ‘bright–line rule’ that Endrew F. eschews is an impossibility given the

extensive variety of disabling conditions and different degrees of severity of disabilities that present in

public school children. The Endrew F. majority’s emphasis on progress appropriate to the child’s

individual circumstances does not eclipse the Rowley standard; rather, the Endrew F. majority calls

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attention to the special education students who cannot achieve progress in the context of the regular

education classroom.”59

An additional “salient” point addresses procedural safeguards. In the Rowley decision Conn

points to the “two–part test for determining the sufficiency of a FAPE.” First to determine if the

“procedural requirements of, in Amy Rowley’s case EAHCA, have been met. Only secondly are courts to

examine whether the IEP ‘is reasonably calculated to enable the child to receive educational benefits.’”

The Rowley majority stressed the paramount importance of the procedural safeguards by stating, ‘If these

requirements are met, the State has complied with the obligation imposed by Congress and the courts can

require no more.’ The Endrew F. majority noted that the Douglas County School District had argued that

the procedural requirements presented a checklist for what constituted a FAPE, but the majority

disagreed, stating that the child’s “educational program must be appropriately ambitious in light of his

circumstances.” This is a clearly articulated point in the Endrew F. decision. Compliance with procedural

requirements is not in itself determinative of an IEP’s adequacy.”60

As noted earlier in this discussion, the Endrew decision provides clear instructions for school

districts and parents when collaborating in the IEP process. Conn concurs, in so far as the Court used

strong language to facilitate the parent/school relationship when they wrote that school “authorities to be

able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably

calculated to enable the child to make progress appropriate in light of his circumstances.”61 She states

that the use of two “strong adjectives”62—both “cogent” and “responsive” highlight the significance of

the Courts desire for school districts to recognize “the child’s individual circumstances, but also to the

parents’ concerns and input.”63

In Conn’s final analysis she addresses the potential for the decision to “negatively impact school

budgets if misinterpreted as requiring school districts to provide more services to special education

students than appropriate for the individual circumstances of each child. At the present time, schools are

being asked to provide FAPE for increasing numbers of children with severe autistic impediments to

academic and functional learning, as well as other students with severe disabilities not even identified

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when Rowley was decided”64 To alleviate this concern, Conn provides a framework to ease the burden of

parents unilaterally placing students in private schools with “[a] ‘disabilities reimbursement reform’ could

statutorily cap reimbursement due to the parents at a given percentage of the tuition at any unilateral

private placement the court finds necessary and appropriate. For different disabilities, the cap could be a

different percentage of the tuition cost. A disability reimbursement scheme might also be based on parent

income, as is the school lunch program.”65 She posits that an organized reimbursement schedule might

also

“…discourage parents from bringing suits for tuition reimbursement, and may encourage parents

to cooperate more fully with the school district’s special education team. A disabilities

reimbursement cap would enable a school district to control its budget more effectively. Each

state could establish different percentage caps, each depending on the average cost of per pupil

regular education placement. Parents of any child with a disability would have to pay their share

of the cost of unilateral private placement.”66

Endrew and Current Litigation

Legal scholars provide analyses that can guide the decisions of school leaders and attorneys when

designing or debating a child’s FAPE and IEP. However, the real test of the Supreme Court decision is in

cases that come before lower courts following Endrew. Three early cases that referenced the new

Endrew standard “ultimately affirmed their pre-Endrew decisions…where both the ‘just above trivial’ and

‘meaningful’ benefit standards were previously applied”67 which reflect Conn’s analysis “that Endrew is

not likely to have “have any meaning for subsequent controversies in lower courts.”68 An overview of

cases in Appendix A provides a summary of select post-Endrew decisions.

Overall, it appears that Endrew might not have the dramatic impact that was anticipated prior to

the Supreme Court ruling. Specifically, that it “appears to be more restatement than a departure”69 from

the existing viewpoint of most Circuit courts. Additionally, “[m]ost Circuits already focused their FAPE

analyses on the reasonableness of the IEP in light of the child's needs, as well as a desire for students with

disabilities to make progress relative to their circumstances…therefore…. the Supreme Court's recent

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opinion will have limited jurisprudential impact, and the emerging progeny of cases recently remanded to

the lower courts for reconsideration should indicate that their decisions will not have to be revised to

comport with Endrew F.”70

Fry v. Napoleon Community Schools

Another case recently decided by the Supreme Court similarly is changing the landscape of IDEA

litigation and challenging long-held legal interpretations of federal laws applicable to student with

disabilities. Section 1415(l) of the IDEA71 requires parents to exhaust administrative remedies at the state

level before pursuing “a civil action ... seeking relief that is ... available under” the IDEA.72 Section

1415(l) provides that nothing in the IDEA “restrict[s] or limit[s] the rights [or] remedies” that other

federal laws, including anti-discrimination statutes, confer on children with disabilities. The section also

provides that if a suit brought under such a law “seek[s] relief that is also available under” the IDEA, the

plaintiff must first exhaust the IDEA’s administrative procedures. The scope of that exhaustion

requirement is the subject of the Supreme Court’s decision in Fry v. Napoleon Community Schools. The

Court ultimately held that “exhaustion is not necessary when the gravamen of the plaintiff’s suit is

something other than the denial of the IDEA’s core guarantee—what the Act calls a “free appropriate

public education.” § 1412(a)(1)(A).73

Before the Supreme Court’s decision in Fry v. Napoleon Community Schools, federal courts of

appeals split on the question of exhaustion of administrative remedies.74 Courts of appeals utilized either

an “injury-centered”75 approach or a “relief-centered”76 approach.77 Under the injury-centered approach,

exhaustion is required when a student’s injuries are “educational.” The First, Second, Third, Sixth,

Seventh, Tenth, and Eleventh Circuits employed the “injury-centered” approach.78 The Eighth and Ninth

Circuits utilized the “relief-centered” approach wherein exhaustion is required only if a parent seeks a

form of relief that can be obtained under the IDEA.79 The Supreme Court’s decision has resolved this

Circuit split, but other questions remain unanswered80 that will compel future litigation.81 Particularly,

scholars such as McCarthy, have noted that this decision has “significant implications for future

challenges to school practices initiated by parents of children with disabilities” and “parents may feel that

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they can obtain more timely remedies and possibly damages from school districts for alleged

discrimination against their children with disabilities.” As McCarthy aptly notes, “the line may not

always be clear as to whether a claim is based on the provision of a FAPE under the IDEA or

discrimination against a child with disabilities, and this line drawing may prove to be significant for

school districts.”82 Also, the underlying service animal question remains unanswered. Thus, the

implications of Fry are extensive and worthy of consideration.83

By way of background of Fry, the Petitioner, E.F., “is a child with a severe form of cerebral

palsy; a trained service dog named Wonder assists her with various daily life activities. When E.F.'s

parents, petitioners Stacy and Brent Fry, sought permission for Wonder to join E.F. in kindergarten,

officials at Ezra Eby Elementary School refused. The officials reasoned that the human aide provided as

part of E.F.'s individualized education program rendered the dog superfluous.”84 In response, the Frys

removed E.F. from school and began homeschooling her. They “also filed complaint with the Department

of Education's Office for Civil Rights (OCR), claiming that the exclusion of E.F.'s service animal violated

her rights under Title II of the ADA85 and § 504 of the Rehabilitation Act86. OCR agreed, and school

officials invited E.F. to return to Ezra Eby with Wonder. However, the Frys, concerned about resentment

from school officials, instead enrolled E.F. in a different school that welcomed the service dog.”87 The

Frys then filed suit in federal court against Ezra Eby's local and regional school districts, alleging that

they violated Title II and § 504 and seeking declaratory and monetary relief. The District Court granted

the school districts' motion to dismiss the suit, holding that § 1415(l ) required the Frys to first exhaust the

IDEA's administrative procedures. The Sixth Circuit affirmed, reasoning that § 1415(l) applies whenever

a plaintiff's alleged harms are “educational” in nature.

The Supreme Court in Fry held as follows:

First, “exhaustion of the IDEA's administrative procedures is unnecessary where the gravamen of

the plaintiff's suit is something other than the denial of the IDEA's core guarantee of a FAPE.” The Court

went onto to make two specific points in connection with this premise:

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(1) “The language of § 1415(l) compels exhaustion when a plaintiff seeks “relief” that is

“available” under the IDEA. Establishing the scope of § 1415(l ), then, requires identifying the

circumstances in which the IDEA enables a person to obtain redress or access a benefit. That inquiry

immediately reveals the primacy of a FAPE in the statutory scheme. The IDEA's stated purpose and

specific commands center on ensuring a FAPE for children with disabilities. And the IDEA's

administrative procedures test whether a school has met this obligation: Any decision by a hearing officer

on a request for substantive relief “shall” be “based on a determination of whether the child received a

free appropriate public education.” § 1415(f)(3)(E)(i). Accordingly, § 1415(l )'s exhaustion rule hinges on

whether a lawsuit seeks relief for the denial of a FAPE. If a lawsuit charges such a denial, the plaintiff

cannot escape § 1415(l ) merely by bringing the suit under a statute other than the IDEA. But if the

remedy sought in a suit brought under a different statute is not for the denial of a FAPE, then exhaustion

of the IDEA's procedures is not required”; and

(2) “In determining whether a plaintiff seeks relief for the denial of a FAPE, what matters is the

gravamen of the plaintiff's complaint, “setting aside any attempts at artful pleading. That inquiry makes

central the plaintiff's own claims, as § 1415(l) explicitly requires in asking whether a lawsuit in fact

‘seeks’ relief available under the IDEA. But examination of a plaintiff's complaint should consider

substance, not surface: § 1415(l ) requires exhaustion when the gravamen of a complaint seeks redress for

a school's failure to provide a FAPE, even if not phrased or framed in precisely that way. In addressing

whether a complaint fits that description, a court should attend to the diverse means and ends of the

statutes covering persons with disabilities.” The IDEA guarantees individually tailored educational

services for children with disabilities, while Title II and § 504 promise nondiscriminatory access to public

institutions for people with disabilities of all ages. That is not to deny some overlap in coverage: The

same conduct might violate all three statutes. But still, these statutory differences mean that a complaint

brought under Title II and § 504 might instead seek relief for simple discrimination, irrespective of the

IDEA's FAPE obligation.

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The Court then posed hypothetical questions as guides, stating: “One clue to the gravamen of a

complaint can come from asking a pair of hypothetical questions. First, could the plaintiff have brought

essentially the same claim if the alleged conduct had occurred at a public facility that was not a school?

Second, could an adult at the school have pressed essentially the same grievance? When the answer to

those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to

be truly about that subject. But when the answer is no, then the complaint probably does concern a FAPE.

A further sign of the gravamen of a suit can emerge from the history of the proceedings. Prior pursuit of

the IDEA's administrative remedies may provide strong evidence that the substance of a plaintiff's claim

concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”88

The Court then remanded the case to the Court of Appeals for a proper analysis of whether the

gravamen of E.F.'s complaint charges, and seeks relief for, the denial of a FAPE. The Frys' complaint

alleged only disability-based discrimination, without making any reference to the adequacy of the special

education services E.F.'s school provided. Instead, the Frys maintained that the school districts infringed

E.F.'s right to equal access—even if their actions complied in full with the IDEA's requirements. The

parties did not address whether the Frys initially pursued the IDEA's administrative remedies, and the

record is cloudy as to the relevant facts. On remand, the Court directed that the 6th Circuit should establish

whether (or to what extent) the Frys invoked the IDEA's dispute resolution process before filing suit. And

if the Frys started down that road, the court should decide whether their actions reveal that the gravamen

of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion.89

Essentially, in Fry, the Court gave us two guiding hypothetical questions: First, could a student

assert the same claim against a public entity other than a school, such as a library? Second, could an adult

at the school assert the same claim against the district? If the answer to those questions is yes, the Fry

Court observed, the claim is unlikely to involve a denial of FAPE.90 However, as hypotheticals so often

do, they left us with a myriad of unanswered and fact-dependent questions to still be answered. Post Fry,

courts have been presented with factual scenarios in which they have applied Fry in real rather than

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hypothetical situations and litigation continues to be a necessary avenue to navigate the maze of issues

still to be addressed. Post-Fry cases are discussed below.

Post Fry Cases

In J.M. v. Francis Howell School District,91 a claim for damages under Section 504 and the ADA

was initiated prior to the Supreme Court’s opinion in Fry, but the Eighth Circuit cited Fry in its

decision.92 A mother, on behalf of her minor son, brought an action against the school district, claiming

unlawful use of isolation and physical restraints in violation of Equal Protection Clause, § 1983, § 1988,

Americans with Disabilities Act (ADA), Rehabilitation Act, and Missouri Human Rights Act (MHRA).

The United States District Court for the dismissed. The mother appealed. The Court of Appeals held

that claims were subject to exhaustion under Individuals with Disabilities Education Act (IDEA),

and exceptions to exhaustion requirement did not apply, and thus mother failed to exhaust administrative

remedies. The Court held that the parent failed to exhaust the IDEA’s procedural requirements before

seeking compensatory and punitive damages that are not available under the IDEA.93

In P.H. by Luna v. Tehachapi Unified Sch. Dist.,94 a seven-year old girl who suffers from multiple

severe disabilities, is non-verbal, and has limited intellectual capacity was a student at Tehachapi School

District, where she alleges she was tied to a chair with a blanket and left for entire school days. Plaintiff

further alleged she was bruised, battered, screamed at, and left all day in soiled papers. In sum, Plaintiff

claimed that she was physically and psychologically abused because of her disability for close to a year.

Her biological mother and legal custodian moved for an order appointing herself as guardian ad litem for

the student. The District moved to dismiss Plaintiff's claims brought under the ADA and the

Rehabilitation Act. Parent was not required to exhaust Section 504 and ADA claims relating to alleged

physical and emotional abuse. The District Court Judge held that the parent was not seeking relief for a

denial of FAPE and denied the district's motion to dismiss. The decision was based on the Court's ruling

in Fry. The District Court rationalized that the Fry Court distinguished between complaints seeking relief

for inadequate special education services and those seeking relief for other forms of discrimination such

as denial of access. The parent here was not challenging the appropriateness of the services and supports

17

the district made available. Of note, the complaint alleged that the district and its employees isolated the

child from other school children during the school day, resulting in the denial of school programs and

services, and physically and psychologically abused her because of her disability. There was also no

evidence that the parent previously sought relief based on an alleged denial of FAPE. Therefore, the court

held that the parent did not have to exhaust her administrative remedies before pursuing her disability

discrimination claims.

In Henry ex rel. M.H. v. Lane,95 the U.S. District Court of the Western District of Pennsylvania,

considered a case involving a student with a visual impairment whose parents claimed that a hearing

officer was partial to the school district that prevailed. The court held that the parents failed to state a

claim for relief. There were no allegations in the parents' complaint that the hearing officer exceeded her

authority. The court held that the hearing officer was entitled to absolute immunity. The district was

found to not have denied the child a FAPE under the IDEA or Section 504. The parents subsequently

sued the hearing officer and a former director of a school for the blind.96 They alleged that the hearing

officer was partial toward the district and that her decision was "highly questionable." As to the director,

the parents appeared to allege that she was untruthful at the due process hearing. The court pointed out

that a complaint may be dismissed if it lacks sufficient factual allegations that, taken as true, set forth a

plausible claim for relief. The court held that the hearing officer was entitled to absolute immunity for

actions she took within the course and scope of her duties. None of the allegations that appeared in the

parents' "vague and confusing run-on narrative" indicated that the hearing officer ever exceeded her

authority. Regarding the allegations against the director, the court described them as "a three-page, single

spaced paragraph replete with run-on sentences and other disjointed and confusing allegations." But more

importantly, the parents were suing the director in her individual capacity, the court stated. Because

individual liability is not available under Section 504, Title II of the ADA, or the IDEA, the court

dismissed the claims.97

In Irvine Unified Sch. Dist. v. K.G.,98 the U.S. Court of Appeals for the Ninth Circuit considered

an action brought by a school district against state, county, and a student, challenging an administrative

18

law judge determination that it was responsible for student's free appropriate public education. The United

States District Court for the Central District of California determined the state was responsible for

providing FAPE to student. The State appealed. The Court of Appeals, reversed, finding the school

district responsible for providing student's FAPE, and remanded. On remand, student moved for statutory

attorney fees. The District Court granted the motion in part. The School district appealed. The Court of

Appeals held that the district court applied correct standard in granting defendant's motion for relief from

judgment; the student was prevailing party; the student's victory was not de minimis, trivial, or mere

technicality; and remand was required for the District Court to determine whether the student's continued

participation in lawsuit was necessary after he graduated with high school diploma. The court held that a

student with Emotional Disturbance had no reason to be concerned about the funding for his residential

placement following his high school graduation. The 9th Circuit explained that the student's prevailing

party status did not in itself justify the District Court's attorney fee award; the student also needed to show

that any fees awarded were "reasonable." The Court observed that the student's participation in

subsequent appeals cast doubts on the reasonableness of the fee award. It noted that while the funding

dispute had jeopardized the student's ability to remain in an out-of-state residential treatment center prior

to his graduation, the student had no placement or services to lose afterward." A finding that [the student]

might end up liable for bills already paid, or the possibility that his diploma might be retroactively

revoked, would certainly explain the need for hundreds of hours of advocacy after his graduation in

2010,” but “IDEA is not 'a relief Act for lawyers.'" The majority informed the student that he would need

to demonstrate on remand how his attorney's continued advocacy on his behalf furthered his interests.99

In A.G. v. Tennesee Dep’t of Educ.,100 Plaintiffs, A.G., a minor, and C.F., his mother, filed an

action against the Tennessee Department of Education (“TDOE”) and Lewis County School System

(“LCSS”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,

Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794, and the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12117. Plaintiffs asserted claims that the Defendants denied

A.G. a free appropriate pubic education (“FAPE”) and discriminated against him based on his disabilities.

19

Plaintiffs also assert a claim for breach of a settlement agreement by the Defendants LCSS. Before the

Court was the Defendant LCSS's motion to dismiss and the Defendant TDOE's motion to dismiss. Both

Defendants contended that Plaintiffs failed to exhaust the administrative remedies available to them and

this action must be dismissed for failure to state a claim upon which this Court can grant relief. In their

responses, Plaintiffs argued that given their experiences in prior administrative proceedings, exhaustion is

futile and that Plaintiffs' breach of settlement agreement claim does not require exhaustion under 20

U.S.C. § 1415(e)(2)(F). The parent of a child with ADHD could not show that the partial dismissal of her

due process complaint made exhaustion futile. IDEA expressly addresses filing requirements for due

process complaints. Specifically, it mandates that each state's special education procedures include a

requirement that a party is not entitled to a due process hearing unless the complaint satisfies the statute's

pleading requirements. The court observed that Tennessee's procedures require the initial review of a due

process complaint by an ALJ before the case is assigned to a different ALJ for a hearing. In this case, the

ALJ responsible for the initial review identified critical flaws in the parent's petition. "The ALJ found that

the amended complaint lacked sufficient detail to allow [the district] to understand how [the district]

improperly implemented or failed to implement [the child's] IEP or harmed or interfered with [the child's]

education, and [the parent's] proposed remedy," Judge Haynes wrote. However, the judge noted that the

reviewing ALJ deemed several of the parent's IDEA claims fit for a hearing. Because the parent could

have obtained a hearing on those claims if she had not voluntarily withdrawn her complaint, the court

rejected her argument that administrative exhaustion was futile. The District Court allowed the parent to

proceed with her claim that the district breached a September 2015 FAPE settlement, however, noting

that settlements reached through mediation are enforceable in court.101

In N.S. v. Tennessee Dep't of Educ.,102 the U.S. District Court, Middle District of Tennessee

denied a district's motion to dismiss claims under the IDEA that it improperly restrained and secluded an

elementary school student with Autism. The court explained that it did not have to set aside its earlier

holding in a decision in light of the U.S. Supreme Court's holding because the case had to do with

whether exhaustion would be futile. Supreme Court Consideration post Fry

20

Other special education cases have resulted in petitions for certiorari before the Supreme Court:

In N.E. v. Seattle School District, the parents of a fourth-grader with ADHD challenged the 9th

U.S. Circuit Court of Appeals' holding103 that the self-contained class identified in the second stage of

their son's two-state IEP was the student's stay-put placement.104 The Supreme Court has denied

certiorari.105

In Gohl v. Livonia Public Schools106, a special education teacher's handling of a 3-year-old boy

with hydrocephalus was at issue. The 6th U.S. Circuit Court of Appeals held that the teacher did not

violate the child's constitutional rights by placing her hand on his head to redirect him after he threw a

toy.107 The Supreme Court has denied certiorari.

The Supreme Court recently, however, did grant the parents' petition for certiorari in S.D. v.

Haddon Heights Board of Education,108 wherein parents, individually and on behalf of their son, brought

an action against a school board, alleging that the school board failed to comply with its statutory

obligations to provide their son, a student with a disability, with free and appropriate public education

(FAPE) and an enacted attendance policy that deprived him of education equivalent to that provided to his

nondisabled peers, in violation of Rehabilitation Act, Title II of Americans with Disabilities Act (ADA),

First and Fourteenth Amendments pursuant to § 1983, and New Jersey's Law Against

Discrimination (NJLAD). The United States District Court for the District of New Jersey, granted school

board's motion to dismiss for lack of subject matter jurisdiction. Parents appealed. The Court of Appeals

held that parents' claims were subject to the Individuals with Disabilities Education Act's (IDEA)

administrative exhaustion requirement.

The high schooler in this case had frequent absences due to multiple medical conditions. The

parents maintained that the district modified its attendance policy after they raised concerns that their

son's Section 504 plans were inadequate. Under the modified policy, the district had to retain any student

who had more than 33 absences in a single school year, regardless of the reasons for those absences.109 In

reviewing the parents' retaliation claim, the 3d Circuit cited its earlier ruling in Batchelor v. Rose Tree

Media School District, 63 IDELR 212 (3d Cir. 2014), that parents must exhaust retaliation claims that

21

relate to the enforcement of IDEA rights. Although the parents in S.D. were seeking to enforce the

student's rights under Section 504, the 3d Circuit held that their retaliation claims still related to the

provision of FAPE – a circumstance that required them to exhaust their administrative remedies under the

IDEA. "Importantly, [the parents'] discrimination claims arise from educational harm to [the student],"

U.S. Circuit Judge Joseph A. Greenaway Jr. wrote. "[The parents] allege that the Section 504 plans

developed by [the district] were deficient such that [the student] was denied 'educational opportunities'

and 'fell further and further behind' regarding his progress with the curriculum."

Conclusion

The Supreme Court’s decision in Fry will have an impact on school practices in the areas of IEP

and Section 504 development. Section 504 will no longer be seen as the consolation prize it once was, as

McCarthy points out.110 Administrators and school members of IEP teams will need to carefully word

IEPs and Section 504 Plan and will need to strongly consider the implications of disciplinary actions,

denials of services, denials of accommodations and the basis for those denials. Standardized, one-size-

fits-all IEPs are now more than ever not recommended. Similarly, parent complaints will need to be well-

plead and attorneys will need to carefully consider the claims that will be raised and where as well as

what motions should be raised in response to claims that are filed.

Some pro se parents have especial difficulty filing a due process complaints that contain all of the

information required by applicable regulations and how administrative law judges and courts ultimately

allow them to proceed in light of Fry will be of interest. The Fry court recognized the possibility of

Section 504 and ADA claims that avoid the use of words such as "FAPE" and "IEP."111 That's why it

expressly stated that the applicability of the IDEA's exhaustion requirement turns on the substance of the

complaint rather than the labels used. The Court pointed out that a "magic words" approach to pleading

would make the exhaustion requirement far too easy to bypass. "Section 1415(l) is not merely a pleading

hurdle," Justice Elena Kagan wrote. "It requires exhaustion when the [crux] of the complaint seeks

redress for a school's failure to provide a FAPE, even if not phrased or framed in precisely that way.

Moreover, the service animal exclusion in Fry occurred seven whole years before the case made its way

22

to the Supreme Court. Courts have only addressed the parents' right to sue; they haven't reached the

merits of the case yet. Disability discrimination claims often result in many years of litigation. Parents

and Districts should review Fry when considering the potential benefits and drawbacks of a prolonged

court battles over issues that might be resolved in a less litigious manner.112 Conclusion

Endrew has changed the parameters of what is a FAPE. It may not have upended the apple cart

given the new standard of appropriately ambitious which could be equally as ambiguous as some

educational benefit. Nonetheless, it is evident in the unanimous decision that the Court recognized that

the Rowley standard was not affording all students an education regardless of the severity of the disability.

Fry has set the course for a whole host of litigation interpreting the substantive and procedural questions

the Court left unanswered.

School district administrators are in the business of managing a school, [yet] also are in the

business of leading educators to provide programs that meet the needs of their students. They must

therefore consider solutions to minimize litigation” (Dieterich et al., 2015, p. 126). Pragmatic suggestions

are needed based on Endrew and Fry that today’s school leaders can implement to develop a systematic

plan that maximizes efficiency and uses minimal resources when providing appropriate services to

students across the spectrum of disabilities. Similarly, further scrutiny by attorneys in analyzing and

considering the nature of claims and proper pleading requirements is indicated by the Supreme Court’s

decisions.

Appendix A. Select Post-Endrew Cases

Select Cases—Post-Endrew Date Court Summary

E.D. v. Colonial Sch. Dist., 117 LRP

12348

March 21,

2017 E.D. Pa. The fact that a 5-year-old girl with a speech and language impairment had not met

grade-level curriculum standards by the end of her kindergarten year did not prove

that a Pennsylvania district denied the child FAPE. The District Court upheld an

IHO's decision that the child's progress was appropriate in light of her age and the

district's ongoing assessment of her disability-related needs. Thus, the

kindergartener’s progress in reading, math satisfies the Endrew standard113

C.D. v. Natick Pub. Sch. Dist.

69 IDELR 213

March 28,

2017 D. Mass. An IHO's application of the "some educational benefit" standard in determining that a

Massachusetts district offered FAPE to a student with a disability complicated the

District Court's review of the case. Observing that it was unclear whether the IHO's

July 2015 decision comported with the U.S. Supreme Court's more recent ruling in

Endrew, the District Court remanded the case for further proceedings114

A.G. and J.G. v. Board of Educ. of the

Arlington Cent. Sch. Dist

69 IDELR 210

March 29,

2017 S.D.N.Y. Despite arguing that the resource room and integrated co-teaching classes at their

son's school were physical placements rather than IDEA services, the parents of an

elementary school student with dyslexia and ADHD could not show that a district

denied the student FAPE. The U.S. District Court, Southern District of New York

held that the student's progress in decoding and encoding skills showed that he

received an educational benefit as contemplated by Endrew and student's

advancement shows IEPs allowed for 'appropriate progress'115

Brandywine Heights Area School

District v. B.M. by and through B.M.

WL 1173836

March 29,

2017 E.D.Pa. Because an IHO considered whether a child with autism had made progress "that was

meaningful in view of [his] profound combination of cognitive disabilities," the U.S.

District Court, Eastern District of Pennsylvania upheld his decision that an IEP

developed in February of the child's kindergarten year was appropriate. However, the

court ruled that the child was entitled to compensatory education for a previous denial

of FAPE.116

Paris School District v. A.H. by and

through Harter 2017 WL 1234151,

April 3, 2017 W.D.Ark. Parents prevailed where “the Arkansas district court was careful to note that its

jurisdiction’s previous standard of ‘slight’ or ‘de minimis’ progress’ was no longer

good law, it ultimately affirmed the administrative court’s pre-Endrew decision.

24

Therefore, the court’s application of Endrew’s new standard did not appear to alter

the ultimate decision in the case… however, highlight the unique needs of students

with autism. The court reasoned that a fourth grade student with autism had not

received an appropriate education because the district’s ‘behavior plans were

inadequate, especially in light of the higher standard of Endrew.’”117

K.M. v. Tehachapi Unified Sch. Dist.,

117 LRP 13249

April 5, 2017 E.D. Cal Although the IEP goals developed for an elementary school student with autism did

not specifically target her attentional difficulties, they sufficiently addressed the

child's need for assistance with staying on task. The U.S. District Court, Eastern

District of California held that the IEP goals complied with Endrew.118

T.M. on behalf of T.M. v. Quakertown

Community School District

WL 1406581

April 19, 2017 E.D.Pa. School district prevailed in “the dispute was between the parents’ ‘strict ABA

program’’ versus the district’s program ‘‘based on ABA principles.’ The

Pennsylvania district court explained that a ‘district is not required to provide a

specific program or employ a specific methodology requested by the parent.’ In

affirming the administrative court decision, the court reasoned that the district had

developed an appropriate IEP and the student’s ‘incremental progress was

meaningful' and thus, aligned with Endrew’s standard. Importantly, the district was

able to demonstrate that it had an experienced, board-certified behavioral analyst and

other highly-trained special education staff. In addition to implementing a behavior

plan for the eleven-year-old student, the district modified the plan after increases in

problematic behavior and considered recommendations from the parents and their

independent behavior analyst.”119

M.C. by and through M.N. v. Antelope

Valley Union High..., 858 F.3d 1189

Amended

May 30, 2017

9th Cir. The parent of a blind high school student will get a second chance to show that a

California district denied her son FAPE by failing to develop measurable annual

goals addressing life skills, residential travel, and business travel. Noting that an IEP

must be reasonably calculated to allow a student to make progress appropriate in light

of his circumstances, the 9th U.S. Circuit Court of Appeals reversed the District

Court's ruling in the district's favor and remanded the case for a determination of

whether the IEP satisfied the standard of FAPE set forth in Endrew.120

C. G. by and through Keith G. v.

Waller Independent..., --- Fed.Appx.

Filed

June 22, 2017

5th Because a preschooler with autism made meaningful progress during the two years

she received services from a Texas district, her parents failed to show that the district

denied the child FAPE. The 5th U.S. Circuit Court of Appeals affirmed a District

25

----

(Only the Westlaw citation is currently

available)

Court ruling that denied the parents' request for tuition reimbursement. This also

affirms that the 5th Circuit's Michael F. factors align with Endrew F. standard of

FAPE.

M.L. by Leiman v. Smith, 867 F.3d 487 Decided

August 14,

2017

4th Cir. EDUCATION - Disabled Students. IEP for student provided FAPE, even though it

did not include instruction on student’s religious and cultural needs.

1 Endrew F. ex rel. Joseph F. v. Douglas County School District, RE–1, 137 S. Ct. 988 (2017). 2 Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982). 3 Id at 3048. 4 Originally enacted as the Education for All Handicapped Children Act of 1975 and amend in 1986, 1990, 1997,

and 2004. Although amended in 2004 as IDEIA it is more commonly referred to as IDEA (hereafter it will be

referred to as IDEA). 5 See Urban ex rel. Urban v. Jefferson Cty. Sch. [*1339] Dist. R-1, 89 F.3d 720, 727 (10th Cir. 1996). See also

Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P., 540 F.3d 1143, 1151 (10th Cir. 2008). 6 Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988). See also, Deal v. Hamilton

Cty. Bd. of Educ., 392 F.3d 840, 862 (6th Cir. 2004); Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d

804, 808-09 (5th Cir. 2003); Allan G. Osborne & Charles J. Russo, Some Educational Benefit or Meaningful

Educational Benefit and Endrew F.: Is There a Difference or Is It The Same Old Same Old? 340 Ed. Law Rep. 1, 12

(2017) (providing a comprehensive review of circuit court decisions pre-Endrew and the interpretation of the

Rowley standard “some educational benefit”). 7 Endrew F. ex rel. Joseph F. v. Douglas County School District, RE–1, 137 S. Ct. 988 LEXIS at *343 (2017). 8 Fry v. Napoleon Community Schools, No 15-497 (Sup. Ct. argued Oct. 31, 2016). 9 See supra note 7 at 346. 10 See supra note 7 at 346, 347. 11 See supra note 7 at 347. 12 Id. (quoting citing Supp. App. 182a; 798 F. 3d 1329, 1336 (CA10 2015)). 13 See supra note 7 at 347. 14 Id. 15 Id. 16 See supra note 2. 17 See supra note 7 at 345 (citing Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 185-186). 18 See supra note 7 at 345 (citing Rowley, O. T. 1981, No. 80-1002, pp. 28, 41). 19 See supra note 7 at 345. 20 See supra note 7 at 345 (citing Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 198). 21 See supra note 7 at 345 (citing Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 200). 22 See supra note 7 at 346 (citing Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 200-202, 207). See

also Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 193 (describing the "substantive standard . . .

implicit in the Act"). 23 See supra note 7 at 346 (citing Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 207). 24 See supra note 7 at 346 (citing Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 203, 204). 25 See supra note 7 at 346 (citing Hendricks Board of Educ. v. Rowley 458 U.S. 176 (1982) at 202). 26 See supra note 7 at 342. 27 Endrew F. v. Douglas Cnty. Sch. Dist. Re-1, 798 F.3d 1329, LEXIS 15020 (10th Cir. Colo., 2015). 28 See supra note 26. 29 See supra note 2. 30 Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1400 et seq. 31 Allan G. Osborne & Charles J. Russo, Some Educational Benefit or Meaningful Educational Benefit and Endrew

F.: Is There a Difference or Is It The Same Old Same Old? 340 Ed. Law Rep. 1, 15 (2017). 32 Id. 33 Id. 34 Id. 35 Id. 36 Perry Zirkel, The Supreme Court’s Decision in Endrew F. v. Douglas County School District RE-1: A Meaningful

Raising of the Bar, 341 Ed. Law Rep. 545, 551 (2017). 37See supra note 36 (citing Laura McKenna, How a New Supreme Court Decision Could Affect Special Education,

THE ATLANTIC (Mar. 23, 2017), https://www.theatlantic. com/education/archive/2017/03/how–a–new–supreme–

court–ruling–could–affect–special–education/520662/ (“Advocates and parents say the case dramatically expands

the rights of special–education students in the United States, creates a nationwide standard for special education, and

empowers parents as they advocate for their children in schools”); Christina Samuels, Advocates Hail Supreme

27

Court Ruling on Special Education Rights, EDUC. WK. (Mar. 22, 2017) (“The Council for Parent Attorneys and

Advocates said ‘we expect this unanimous decision ... to be transformative in the lives of the students and families

for whom the law is intended to benefit’ ”). 38See supra note 36 (citing Timothy E. Gilsbach, Supreme Court Rules on What a FAPE Requires: Has the Court

Raised the Bar? or Lowered It in the Third Circuit? SCH. L. BULLET (Mar. 2017),

http://www.kingspry.com/supreme–court–rules–on–what–a–fape–requires/ (asserting that the Endrew F. standard is

lower than the “meaningful benefit” interpretation of Rowley). 39See supra note 36 at 551. 40 Schaffer v. Weast, 546 U.S. 49, 203 Ed.Law Rep. 29 (2005). 41 See supra note 36 at 553 “As a limited exception, on occasion a district may file such a claim either to validate its

proposed IEP or effectuate its proposed change in placement. See, e.g., Perry A. Zirkel, The Two Dispute Decisional

Processes under the Individuals with Disabilities Education Act: An Empirical Comparison, CONN. PUB. INT. L.J.

(forthcoming 2017).” 42 See supra note 36 at 553 (citing Cf. M.C. v. Antelope Valley Union High Sch. Dist., __ F.3d __, __, __ Ed.Law Rep.

__ (9th Cir. 2017) (shifting the burden of persuasion to the parents in limited circumstances, here being a procedural

violation that deprived the parents of the knowledge of the kind and duration of services at issue)). 43See supra note 36 at 547,548 “For the procedural part, the lower courts gradually developed a two–step analysis that

started with whether the district (1) violated one or more of the IDEA’s procedural requirements and, if so, culminating

with whether the (2) violation(s) resulted in substantive harm to the child For the substantive side, the lower courts

tended to divide into two camps—one that interpreted Rowley as requiring only (1) ‘some,’ i.e., more than de minimis,

educational benefit and the other that interpreted Rowley as requiring a (2) “meaningful” educational benefit. However,

the lower courts during this period were not divided on a related issue, uniformly rejecting plaintiff–parent arguments

for raising Rowley’s substantive standard based on the successive IDEA amendments in 1990, 1997, and 2004.” 44 See supra note 36 at 553 (citing 20 U.S.C. § 1415(f)(3)(E) (2013): In matters alleging a procedural violation, a

hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies: (i) Impeded the

child’s right to a FAPE; (ii) Significantly impeded the parent’s opportunity to participate in the decision–making

process regarding the provision of a FAPE to the parent’s child; or (iii) Caused a deprivation of educational benefit.

For a systematic analysis of the court decisions specific to the parental prong, see Perry A. Zirkel, Parental

Participation: The Paramount Procedural Requirement under the IDEA? 15 CONN. PUB. INT. L.J. 1 (2016). 45 John Aguilar & Mark K. Edwards, U.S. Supreme Court Ruling on Student Disabilities Case, DENVER POST

(Mar. 23, 2017), http://www.denverpost. com/2017/03/22/supreme–court–ruling–tangled–neil–gorsuch–hearing/

(“Jack Robinson, the attorney who represents Endrew F.‘s family, ... called the high court’s ruling a ‘game

changer.‘”)). 46 See supra note 36 at 554 (citing Endrew F. v. Douglas Cty. Sch. Dist., 798 F.3d 1329, 321 Ed. Law Rep. 639

(10th Cir. 2015) (“This is without question a close case.... ”)). 47 See supra note 36 at 554 (citing Endrew F. v. Douglas Cty. Sch. Dist., 798 F.3d 1329, 321 Ed.Law Rep. 639 (10th

Cir. 2015) (“It is clear from the testimony at the due process hearing that Drew is thriving at [the private

placement].”)). 48 See supra note 36 at 554 (citing 20 U.S.C. § 1412(a)(10)(C)(iii)(I)). 49 Janet Decker & Sarah Hurwitz, Post-Endrew legal implications for students with autism, 343 Ed. Law Rep. 31, 35

(2017). 50 Id. at. 36. 51 Id. 52 Id. at 33. 53 Lea Winerman, Autism Diagnoses Bring Slew of Costs for Families, PBS (Apr. 13, 2011, 6:11 PM),

http://www.pbs.org/newshour/updates/health-jan-june11–autismcosts 04–13/. 54 Kathleen Conn, Rowley and Endrew F.: Discerning the Outer Bounds of FAPE? 345 Ed. Law Rep. 597, 608

(2017). 55 Id. at. 608. 56 Id. 57 Id. 58 Id. at 610. 59 Id. 60 Id. 61 See supra note 7 at 343. 62 See supra note 54 at 611.

28

63 Id. 64 Id. at 613. 65 Id. at 613, 614. 66 Id. at 614. 67 See supra note 49 at 38. See also C.G. v. Waller Independent School District Fed.Appx. , 2017 WL 2713431(5th

Cir. 2017); T.M. on behalf of T.M. v. Quakertown Community School District 2017 WL 1406581 *3+ , E.D.Pa.;

Paris School District v. A.H. by and through Harter 2017 WL 1234151, *4+ , W.D.Ark. 68 See supra note 54 at 614. 69 Jose L. Martín, The potential impact of Endrew F. on U.S. Circuit Court FAPE formulations. LRP (June 16, 2017) 70 Id. 71 The IDEA requires school districts receiving federal financial assistance to provide a FAPE. All states participate

in IDEA funding. The Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of

Education (USDOE) oversees IDEA compliance. The IDEA sets forth procedural requirements to be followed prior

to taking complaints to a court. Administrative due process hearings proceed court action if a dispute is not resolved

prior to the institution of the administrative hearing process. The Supreme Court held that where Congress provided

a comprehensive enforcement mechanism for protection of a federal right as it did in the IDEA, a litigant cannot

obtain a private right to bring a suit for damages or attorneys’ fees by asserting the claim under civil rights laws.

IDEA statutory provisions enacted after the Court’s decision authorize attorneys’ fees to prevailing parents or

guardians in IDEA litigation. However, only if the plaintiffs are not seeking relief also available under the IDEA

can they initiate legal action under the ADA or Section 504 without exhausting administrative procedures. 72 20 U.S.C. § 1415(l). 73 Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 197 L. Ed. 2d 46 (2017). 74 Kevin Golembiewski, A Few Words of Caution As the Supreme Court Considers Fry v. Napoleon Community

Schools, 73 Wash. & Lee L. Rev. Online 433 (2016). 75 See F.H. ex rel. Hall v. Memphis City Sch., 764 F.3d 638, 644 (6th Cir. 2014). 76 See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 873-74 (9th Cir. 2011) (en banc); See also Mark H. v.

Lemahieu, 513 F.3d 922 (9th Cir. 2008) (holding that Congress clearly expressed its intent that remedies be

available under section 504 for acts that simultaneously violate the IDEA). 77 Id. at 435. 78 Golembiewski at 439. 79 Id. 80 For instance, the Supreme Court did not decide if it would suffice to bring an ADA or Section 504 action because

the specific remedy (e.g., monetary damages for emotional distress) is not available for an IDEA hearing officer to

award. See Martha McCarthy, Ph.D., Fry v. Napoleon Community Schools: Could This Supreme Court Decision

Open A Pandora's Box?, 344 Ed. Law Rep. 18 (2017). The Court noted it did not address whether parents

challenging a FAPE but seeking damages that the IDEA does not authorize could use Section 504 or the ADA in

their lawsuit. 81 Martha McCarthy, Ph.D., Fry v. Napoleon Community Schools: Could This Supreme Court Decision Open A

Pandora's Box?, 344 Ed. Law Rep. 18 (2017), 19-20. 82 Id. at 28. 83 Id. 84 Fry at 746-747. 85 The ADA prohibits discrimination against persons with disabilities in employment, public services (including

education), public accommodations, and telecommunications and applies to all private and public entitles, whether

or not they receive federal financial assistance. Title II pertains to children with disabilities in public schools. Like

Section 504, the ADA has criteria for determining who has a disability and provides that such

individuals cannot be excluded from participating in, be denied the benefits of, or be subjected to discrimination

because of their disabilities. Compensatory damages and attorneys’ fees are remedies under the ADA. 86 Section 504 prohibits disability discrimination by public and private recipients of federal aid and is enforced by

OCR. Section 504 provides that no otherwise qualified individuals with a disability shall “be excluded from

participating in, be denied the benefits of, or be subjected to discrimination based on their disabilities” in any

programs or activities receiving federal financial assistance. An individual with a disability is defined as a person

who has a physical or mental impairment that substantially limits one or more major life activities, has a history or

record of such an impairment, or is regarded as having such an impairment. Amendments to Section 504 have

broadened the Act’s scope and further clarified the provisions applicable to children and adults alike. A Section 504

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claim involves comparing how children with and without disabilities have their needs met. Those denied a free

appropriate public education under Section 504 are entitled to compensatory damages and attorneys’ fees. 87 Id. Section 504 does not specify a limitations period. Courts generally borrow and

apply the limitations period for an analogous state law cause of action under Section 504. See,

e.g., Douglas v. California Dep't of Youth Auth., (9th Cir. 2001). 88 Id. 89 Id. 90 LRP SUPREME COURT UPDATE: Fry ruling requires 3d Circuit to revisit Section 504 retaliation case, May 22

2017, Amy Slater 91 J.M. v. Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017). 92 McCarthy at 26. 93 AS McCarthy points out, the parent changed in positions in this matter. The parent initially claimed that her son

was denied an appropriate education because he was secluded and restrained for much of the time he was in school

and thus could not participate in instruction to receive educational benefits. After amending her initial complaint,

however, she ultimately sought remedies under the IDEA, Missouri’s Human Rights Act, Missouri common tort

law, the ADA, the Equal Protection Clause, Section 504, and civil rights laws (Sections 1983 and 1988) authorizing

suits for damages. The parent then dropped the IDEA and tort claims. The Eighth Circuit reasoned that this

complaint over the student being subjected to disciplinary measures without the parent’s knowledge was based on

the denial of a FAPE under the IDEA because it involved the failure to implement the IEP, which

did not authorize use of seclusion and restraint as a disciplinary technique. The court considered the fact that even

though the parent did not request a due process hearing under the IDEA, both the initial and amended complaints

indicated that the gravamen was the denial of a FAPE. The Eighth Circuit rejected the parent’s assertion that her

complaint was not subject to exhaustion because it sought compensatory and punitive damages that

were not available under the IDEA. The 8th Circuit picked up where the unanswered question in Fry began and

concluded that exhaustion is required, even if plaintiffs are seeking relief not provided by the IDEA as long as the

claim relates to providing a FAPE. Therefore, the Eighth Circuit rejected the move for damages for emotional

distress, like E.F.’s claim for those damages in Fry. 94 P.H. by Luna v. Tehachapi Unified Sch. Dist., No. 117CV00257DADJLT, 2017 WL 3085020 (E.D. Cal. June 9,

2017). 95 Henry v. Lane, No. 16CV1239, 2017 WL 1383356 (W.D. Pa. Apr. 18, 2017). 96 LRP Special Ed Connect Summary 97 Id. 98 Irvine Unified Sch. Dist. v. K.G., 853 F.3d 1087 (9th Cir. 2017). 99 LRP Special Education Connect Summary. 100 A.G. v. Tennessee Dep't of Educ., No. 1:16-CV-00027, 2017 WL 112526 (M.D. Tenn. Jan. 11, 2017). 101 LRP Special Ed Connect Summary 102 N.S. by & through J.S. v. Tennessee Dep't of Educ., No. 3:16-CV-0610, 2017 WL 1347753 (M.D. Tenn. Apr. 12,

2017). 103 N.E. by & through C.E. & P.E. v. Seattle Sch. Dist., 842 F.3d 1093 (9th Cir. 2016), cert. denied sub nom. N.E. ex

rel. C.E. v. Seattle Sch. Dist., No. 16-1285, 2017 WL 1510043 (U.S. Oct. 2, 2017). 104 Gohl v. Livonia Pub. Sch. Sch. Dist., 836 F.3d 672 (6th Cir. 2016), cert. denied, No. 16-1001, 2017 WL 635927

(U.S. Oct. 2, 2017). 105 N.E. ex rel. C.E. v. Seattle Sch. Dist., No. 16-1285, 2017 WL 1510043 (U.S. Oct. 2, 2017). 106 Gohl v. Livonia Pub. Sch. Sch. Dist., No. 16-1001, 2017 WL 635927 (U.S. Oct. 2, 2017). 107 LRP Special Ed Connect Summaries, Amy Slater. 108 S.D. v. Haddon Heights Bd. of Educ., 833 F.3d 389 (3d Cir. 2016), cert. granted, judgment vacated sub nom. S.D.

ex rel. A.D. v. Haddon Heights Bd. of Educ., 137 S. Ct. 2121, 198 L. Ed. 2d 193 (2017). 109 LRP Special Education Connect Summary. 110 McCarthy at 30. 111 LRP Special Education Connect, March 21, 2017, Amy Slater, 5 Facts Educators, Attorneys Need to Know about

Fry. 112 LRP Special Education Connect, March 21, 2017, Amy Slater, 5 Facts Educators, Attorneys Need to Know about

Fry.

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113 E.D. v. Colonial Sch. Dist., 117 LRP 12348 (E.D. Pa. 03/31/17). 114 C.D. v. Natick Pub. Sch. Dist., 69 IDELR 213 (D. Mass. 2017) 115 A.G. and J.G. v. Board of Educ. of the Arlington Cent. Sch. Dist., 69 IDELR 210 (S.D.N.Y. 2017). 116 Brandywine Heights Area Sch. Dist. v. B.M., 69 IDELR 212 (E.D. Pa. 2017). 117 See supra note 49 at 39. 118 K.M. v. Tehachapi Unified Sch. Dist., 117 LRP 13249 (E.D. Cal. 04/05/17). 119 See supra not 117. 120 M.C. v. Antelope Valley Union High Sch. Dist., 69 IDELR 203 (9th Cir. 2017).