Is Rowley Still Relevant After Endrew F.?

Posted on April 4, 2017

In Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. ___ (Mar. 22, 2017), the United States Supreme Court was asked to resolve an issue that is at the heart of the Individuals With Disabilities Education Act (IDEA): What is the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education (FAPE) guaranteed by the IDEA?

Since 1982, the primary source for the answer to that question was Board of Ed. of Hendrick Hudson Central School Dist., Winchester Cty. v. Rowley, 458 U.S. 176 (1982), the Supreme Court’s first decision to construe the IDEA. See Wenkart, R. D., The Rowley standard: A circuit by circuit review of how Rowley has been interpreted, 247 West’s Educ. L. Rep. 1 (2009)(collecting and analyzing cases). Since 1982, Circuit Courts and legal scholars have recognized that there was a split of authority in the interpretation of the “Rowley standard” with some Circuits applying a “some educational benefit” standard, other Circuits applying a “meaningful educational benefit” standard and at least one Circuit applying a mixture of both standards. See Aron, L., Too Much or Not Enough: How Have the Circuit Courts Defined a Free Appropriate Public Education After Rowley?, 39 Suffolk U. L. Rev. 1, 6 (2005).

To add to the confusion, the level of educational benefit Circuit Courts afforded to the terms “some” and “meaningful” were widely divergent. For example, in Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989), the 3rd Circuit interpreted Rowley to require a “meaningful educational benefit,” described as educational benefit that was “substantial” and “must be more than de minimis.”

On the opposite side of the spectrum, the Tenth Circuit has construed Rowley much more restrictively, rejecting the notion of “meaningful” benefit, and holding that the “Rowley Standard” was only one of “some educational benefit” which translates to an educational benefit that is “merely more than de minimis.” See, e.g., Thompson R2J Sch. Dist. v. Luke P., 540 F.3d 1143, 1149 (10th Cir. 2008)(“[W]e have concluded that the educational benefit mandated by IDEA must merely be ‘more than de minimis.’”).

Almost 3000 cases have cited to Rowley since 1982 with the majority of those decisions applying their version of the so-called “Rowley Standard.” The Supreme Court in Endrew F. upended all of those cases holding for the first time that Rowley never established a substantive standard for a FAPE and never meant to delineate the level of educational benefit that is owed under the IDEA.

Writing for a unanimous Court, Chief Justice Roberts forcefully wrote in the opening paragraph to this landmark decision that the Court in Rowley held only that the IDEA establishes a “substantive right” to a free appropriate public education for children with disabilities and did not establish a “substantive standard” for determining when that right was satisfied. Slip Op. at 1. Rather, the Court stated that this “more difficult problem” is being decided for the first time in the Endrew F. decision. Id.

The significance of this pronouncement cannot be overstated – it eradicates the relevance and precedential effect of all prior and existing substantive FAPE standards that relied on Rowley.

Chief Justice Roberts goes to great lengths to describe and define the very narrow holding of Rowley. Following its discussion of the statutory framework for the IDEA, the Court, in section I.B. of the decision, sets forth a lengthy and in depth analysis of Rowley, including the unique facts at issue in that case, the competing arguments made by the parties to the district court and to the court of appeals, what was decided by the lower courts, the parties’ arguments to the Supreme Court, and the Court’s rejection of both sides’ arguments. Id. at 3-6.

The Court opened its discussion of Rowley by declaring that “This Court first addressed the FAPE requirement in Rowley.” Id. at 3. The Court noted that in Rowley the “parties advanced starkly different understandings of the FAPE requirement,” and that Rowley rejected both parties’ views. In particular, Rowley rejected the lower courts’ holding in favor of the parents that the IDEA allows courts to impose their own judgment about the FAPE requirement. Id. 4-5. On the other hand, Rowley “rejected the school district’s argument that the FAPE requirement was actually no requirement at all.” Id. at 5.

The Court made clear that Rowley did not establish a substantive FAPE standard. Rather, Rowley “went no further” than to decide that the IDEA established a substantive right to a FAPE and to conclude that Amy Rowley’s IEP satisfied the FAPE requirement because it provided a “substantial suite of specialized instruction and services” and she made “excellent progress” under the IEP. Id. at 5.

Throughout the decision, the Court re-emphasized its position that Rowley did not establish a substantive FAPE standard:

  • “Observing [in Rowley] that the Act 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.’ Id. at 6.
  •  “The Court in Rowley declined ‘to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.’” 458 U. S., at 202.” Id. at 9.
  • “[T]the district urges that [Rowley] conclusively adopted a ‘some educational benefit’ standard when it wrote that ‘the intent of the Act was more to open the door of public education to handicapped children . . . than to guarantee any particular level of education.’ [Rowley], at 192; see Brief for Respondent 14.” Id. However, “the district makes too much of” these statements. Id.
  •  “Similarly, we find little significance in the Court’s language concerning the requirement that States provide instruction calculated to ‘confer some educational benefit.’ [Rowley], at 200. The Court had no need to say anything more particular, since the case before it involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits. See [Rowley], at 202, 209–210.” Id. at 10.
  • “The Court was not concerned with precisely articulating a governing standard for closer cases. See [Rowley], at 202.” Id.
  •  “And then we expressly declined ‘to establish any one test for determining the adequacy of educational benefits’ under the Act. [Rowley], at 202 (emphasis added).” Id.
  • “It would not have been ‘difficult’ for us to say when educational benefits are sufficient if we had just said that any educational benefit was enough. And it would have been strange to refuse to set out a test for the adequacy of educational benefits if we had just done exactly that. We cannot accept the school district’s reading of Rowley. Id. at 10-11.
  • “While Rowley declined to articulate an overarching standard to evaluate the adequacy of the education provided under the Act, [We are establishing one in this case]: To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Id. at 11.

Because school districts and their associated organizations, for the last 35 years, have steadfastly clung to the low hanging fruit of the “Rowley Standard” as requiring no educational benefit at all, there is little doubt that they will not readily acknowledge the eradication of the so-called “Rowley Standard” and the establishment of a “markedly more demanding” standard articulated for the first time in Endrew F.

A stark example of the school district’s intransigence was included in a statement to the media by Kathleen Sullivan, chief counsel for the Colorado Association of School Boards (CASB). In her statement, Ms. Sullivan argues that the standard established in the Endrew F case was “not a radical alteration” of the standard set forth in Rowley and would not “disrupt the significant body of case law that had developed” from Rowley. Of course, Ms. Sullivan’s statement completely ignores (or fails to understand) the overarching holding of Rowley – that it did not establish a FAPE standard and that the case law that developed subsequently which held to the contrary was wrong.

Never mind that Ms. Sullivan, on behalf of CASB, filed an Amicus Brief with the 10th Circuit in the Luke P. case arguing that Rowley and its progeny established that the IDEA only provided for an educational benefit that was “just above trivial; just “more than de minimis;” “trivial educational advancement;” “a Chevrolet not a Cadillac.” CASB pressed the 10th Circuit to adopt a standard that afforded a child with a disability nothing more than “trivial educational advancement” which Judge Gorsch, writing on behalf of the 10th Circuit, adopted in Luke P in the form of the “merely more than de minimis” standard.

The School District and its Amici warned the Supreme Court in Endrew F that any deviation from the 10th Circuit’s “merely more than de minimis” standard would radically alter the standard for a FAPE and would result in a significant burden to school districts and increased litigation.

Ms. Sullivan’s reading of Endrew F. included in her statement on behalf of CASB dangerously ignores the importance of Endrew F.:

“But whatever else can be said about it, this standard is markedly more demanding than the “merely more than de minimis” test applied by the Tenth Circuit.”

“When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year 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. The IDEA demands more.”

Endrew F., Slip Op., p. 14 (emphasis added).

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