How to Seek Academic Advancement for a Special Ed Student

What free, appropriate public education means

By Judy Malmon, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on January 11, 2024 Featuring practical insights from contributing attorney Timothy E. Gilsbach

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Under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973, all students enrolled in programs receiving federal funds are entitled to a “free appropriate public education” (FAPE). Sounds great, but what do these federal laws mean?

Throughout the last three decades, the definition of this standard has been the subject of analysis and refinement, as well as geographic divisions, but was not unified by a single national standard until the U.S. Supreme Court’s 2017 decision Endrew F. v. Douglas County School District.

Supreme Court’s Endrew Ruling: “Progress Appropriate in Light of Child’s Circumstances”

The issue in that case was whether a school system is required to provide an Individualized Education Program (IEP) to a student diagnosed with autism spectrum disorder (ASD), allowing them to advance similarly to their peers. Endrew’s parents had removed their son from public school, where he was not advancing, and placed him in a private school that specialized in serving children through special education programs at a cost of $70,000 per year. Their action sought reimbursement based on FAPE.

The court determined that, indeed, a special education student is entitled to a higher level of achievement than the previous bar of some progress. The court stated in its unanimous opinion that a school “must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” This means that the IEP process must focus on the unique and specific student needs and individual progress of each child and cannot be applied with a cookie-cutter approach.

For a student with a severe intellectual disability… what is appropriate progress over the course of a year for that child is going to be very different than for a child with an IQ of 100 who has ADHD. Their disabilities affect them in different ways, and how we measure progress is different. The question becomes, ‘What is reasonable to expect this child to do over the next year?’

Timothy E. Gilsbach

Impact of the Endrew Decision

Tim Gilsbach is a special education attorney at Fox Rothschild in Blue Bell, Pennsylvania, who counsels school districts in their management of IEPs and special education services, ensuring that they uphold their obligations under FAPE and other legal requirements. He says the Endrew decision has probably had a larger impact in federal circuits where there was a lower standard previously in place but that the Third Circuit (including Pennsylvania) hasn’t seen as much change.

“The standard we’ve used for FAPE in the Third Circuit for many years now has been, ‘Does the IEP allow for the opportunity of meaningful progress for special needs students?’ Courts have said that this is essentially the same as ‘appropriate progress in light of the child’s circumstances.’ So, it’s really going to depend on what part of the country you’re in as to whether you see much of a change from this decision,” Gilsbach says.

Case-By-Case Educational Evaluation

How does this standard play out for students? “It’s really kind of a case-by-case determination,” says Gilsbach. “For a student with a severe intellectual disability, with an IQ of 40, what is appropriate progress over the course of a year for that child is going to be very different than for a child with an IQ of 100 who has ADHD. Their disabilities affect them in different ways, and how we measure progress is different. The question becomes, ‘What is reasonable to expect this child to do over the next year?’”

It’s important to note that the Supreme Court rejected the notion that every student is entitled to a guaranteed level of success and stated that the IDEA “cannot and does not promise any particular educational outcome.” Ultimately, the standard for FAPE is going to be unique to each situation, but special education advocates are encouraged to see the bar being raised.

Find Experienced Advocacy for Your Student

If you have a student with a learning disability or educational needs and have concerns that FAPE is not being provided—or need guidance in decision-making or working with your local school administrators or IEP team—it may be helpful to consult with an experienced special education attorney. For more information on this area, see our education law overview.

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