Schools Still Winning Most Special Ed Disputes, Even After Endrew F.
School districts continued to win most disputes over individualized education programs in the year since a U.S. Supreme Court decision affirmed a more ambitious standard for setting goals for students with disabilities, according to a new analysis.
Perry Zirkel, professor emeritus of education and law at Lehigh University in Pennsylvania, analyzed 49 appeals of hearing officer decisions, which were predominantly in favor of school districts, to see if Endrew F. v. Douglas County School District had changed legal outcomes.
Zirkel found that in cases where the school district won before the high court ruling, 90 percent of those decisions were upheld in the 12 months since the March 2017 Supreme Court decision. The analysis was published in the April edition of West’s Education Law Reporter.
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“Everything seems to be pretty much the same as it was before Endrew in terms of these relevant cases, where the issue is whether the IEP is substantively appropriate,” Zirkel said.
In the unanimous Endrew F. decision, which involved a Colorado boy with autism, the Supreme Court held that a school must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” It also said students should have the chance to “meet challenging objectives.”
The 49 cases Zirkel looked at came from across the country and were included because a judge cited the Endrew F. case and applied the substantive standard. Zirkel said none of the IEPs in the cases he analyzed were developed after the ruling.
“People may be putting together IEPs right now that won’t go to court for three years from now and maybe they’ve improved it,” he said.
Stuart Stuller, who was one of the attorneys who represented the school district before the Supreme Court in the Endrew F. case, said just as IEPs are tailored to the student, it’s important to look at cases individually.
“I don’t think the Supreme Court intended in its decision to try to affect the win-loss ratio,” said Stuller, who practices in Boulder, Colo. “I think what they intended to do was provide lower courts with tools to make a better decision in terms of how well the IEP team does their job. I’m a little bit skeptical of looking at win-loss ratios when each of these cases are based on individual circumstances.”
Stuller said it will take time to gauge how the ruling plays out. “Just because the Supreme Court has ruled that doesn’t mean it’s the end of the argument; it’s the start of a new argument.”
He also noted that gains in educational outcomes are not driven by the judicial system, but rather through research, methodology and the regulatory framework of the Individuals with Disabilities Education Act.
Selene Almazan, legal director for the Council of Parent Attorneys and Advocates and a practicing special education attorney in Maryland, said outcomes will be more telling once cases involve IEPs that were created after the landmark ruling.
“I’m hopeful that we will see the importance of Endrew F. on litigation as it goes forward, but most importantly for those cases that don’t go to a hearing because parents are able to get challenging and ambitious goals at the IEP and get Endrew F. applied at the place where it really matters,” she said.