The IDEA and Endrew F.: Celebration or Uncertainty?

This post is written by Editor-in-Chief Desiree Isaac. Opinions and views expressed herein are those of the writer alone.

While taking Supreme Court Seminar with Judge Amul Thapar, I played the role of Chief Justice John Roberts for a semester, writing the majority opinion for our mock court in Endrew F. As a law student hoping to practice education law and civil rights for children, this case was important to me for several reasons. I specifically set out to “hear” this case and write the majority opinion because I desperately wanted to immerse myself in a subject I will likely never be exposed to in a typical class, to create a solid writing sample in this area for professional use, and I knew the Court’s actual decision would impact me personally and professionally going forward.

Education holds a special place in my heart. I grew up in rural Eastern Kentucky where resources were scarce and sports were (and still are) more highly valued than learning. That never stopped me from pushing myself to learn more and taking advantage of opportunities outside my home to sharpen my academic skills and become competitive in the outside world. As a first-generation college student, I navigated the waters of higher education alone, but I excelled academically through high school and continued a path of excellence through college. But, what about those who are never given the tools they need and are entitled to?

Although I majored in political science and public relations, I spent some summers working with dyslexic children. I found my passion in helping children with special needs, and that passion grew even stronger when the sweetest little red-headed boy in my life (probably also in the world) was diagnosed with autism. Although this handsome young man is not my own, my heart is overflowing with love, admiration, and astonishment for this child. Once Nicholas was diagnosed and began receiving the appropriate therapy, he made considerable improvement in his verbal and physical skillsets. He may not be able to communicate his thoughts and feelings in a “typical” fashion, but he amazes me with his intelligence. He can count higher than I, a third-year law student, can. He knows road names, directions, and locations better than any map. He can hear any song just one time and remember the lyrics and beat indefinitely.

But, what happens at school for children with special needs? Do they receive the resources they need to learn academic and life skills? Do their parents even know they are legally entitled to receive certain things? Importantly for us, will Endrew F. change the answers to these questions, or does the opinion leave us with more uncertainty?

The IDEA (Individuals with Disabilities in Education Act) provides for federal funding to state and local agencies upon meeting certain conditions outlined in the Act. Among these conditions is  a requirement that students with disabilities be provided “a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living .”[1] These words created confusion among educators, parents, and courts, ultimately leading to the decision in Endrew F. 

Chief Justice John Roberts, writing for a unanimous Court, held that under the IDEA, schools must provide children with disabilities an IEP (Individualized Education Program) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[2] I must admit that when I first read the opinion, I smiled. I was excited. The Supreme Court of the United States had the final word and decided that certain circuits’ “merely more than de minimis” benefit standard set forth in various cases was not enough for these particularly vulnerable members of our society.[3] Children across America, regardless of what federal court of appeals circuit boundaries they live within, would now be definitively entitled to an IEP aimed at progress and advancement, rather than just complacency.

The Court noted that this more demanding standard was necessary “to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”[4] The Court even highlighted the nature of special education, declining to further define “appropriate progress” specifically because “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”[5]

One attorney went so far as to liken Endrew F. to one of the most well-known civil rights cases of all time, dubbing Endrew F. “the Brown v. Board of Education moment for the disability community.”

But, is this enough? Will this really make a difference for children with disabilities? Courts are not meant to act as legislatures. Courts are meant to apply the law. I am not faulting the Supreme Court for staying within its bounds as a judicial body, I am simply contemplating the aftermath we now face.

While the words and phrases used in the opinion offer hope and a distinctly improved outcome for children previously provided with a lesser “merely more than de minimis” benefit, the ruling does not carry the weight that many hoped for. Much discretion will still remain with educators, as it should, but how will courts making decisions on whether a child’s IEP is adequate know what equates appropriate progress on an individual basis?

As courts are obviously aware, disabilities vary in impact on particular children. Even within the same category of disability such as autism, diagnoses run on a widely-varying spectrum, with some children remaining high-functioning and others severely impaired. This will prove to be a difficult issue for courts to tackle, as judges are not required to undergo training for each subject they must decide in any given case.

Let’s not forget about parents. While parents mean well and generally want the best for their children, will parents of students covered by the IDEA be aware of what this case means for their child’s IEP? Do parents know that legal remedies exist under the IDEA and other federal and state acts or how they would go about pursuing these remedies? What do we, as a profession and as a society, need to do to better inform parents, educators, and arbiters of these principles and how to implement them in order to foster a more welcoming and productive educational environment for children with disabilities?

What does this mean for schools in impoverished areas? Although funding for educational programs can be provided through various sources, many schools face serious economic challenges and this can often impact the quality of education received by students, particularly those with special needs requiring specialized instruction.

I have questions, but unfortunately no answers. These issues will have to play out in the lives of today’s youth, but I have hope that this will pave the way for future students with disabilities to live and learn at their highest capacity.

To read the Court’s full opinion, click here.


[1] 20 USCS § 1400 (d)(1)(A).
[2] Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988, 999 (2017).
[3] Endrew F. v. Douglas Cnty. Sch. Dist. Re-1, 798 F.3d 1329 (10th Cir. 2015), D.B. ax rel. Elizabeth B. v. Esposito, 675 F.3d 26 (1st Cir. 2012), Todd v. Duneland Sch. Corp., 299 F.3d 899 (7th Cir. 2002), and O.S. v. Fairfax Cty. Sch. Bd. Of Dirs., 804 F.3d 354 (4th Cir. 2015),
[4] Endrew F., 137 S.Ct. at 999.
[5] Id. at 1001.


Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s