Tought Leader

What Impact Does the Supreme Court’s Endrew F. Decision Have on School Transportation?


aving lived most of my adult life in the rari- fied air of Colorado, I am still not surprised that the Supreme Court, ruling on March 22 in the Endrew F. case, brought special

educators and related services personnel “down to earth.” In fact, despite my retirement, the opinion in what advocates have called “the most significant special-ed- ucation issue to reach the high court in three decades,” challenged me to think about practical implications for school transportation providers. I had predicted that if the Supremes “raised the bar” of FAPE (Free Appropri- ate Public Education, the cornerstone of federal law’s requirements for students with disabilities), as many pre- dicted they would, it would not necessarily mean frantic revamping of IEP provisions relating to school transpor- tation. In an effort to calm transportation professionals’ nerves now that any thought that offering “de minimis” educational benefits are enough has been tossed out of the window, I practically begged to write this article.

THE FACTS Endrew was diagnosed with autism at age two. He attended school in Douglas County School District in Colorado from preschool through fourth grade. Despite possessing a number of strengths on which teachers commented through these years, Endrew’s disruptive behavior “inhibited his ability to access learning in the classroom.” According to the U.S. Supreme Court’s opinion, “Endrew would scream in class, climb over furniture and other students, and occasionally run away from school. He was afflicted by severe fears of com- monplace things like flies, spills, and public restrooms.” His parents complained that they had seen no improve- ment in his academic and functional progress, and after the school district presented them with a proposed fifth grade IEP that, like its predecessors, in the parents’ view, offered little in the way of new strategies for behavior management or approaches to making meaningful progress towards goals, his parents removed Endrew from public school. Tey enrolled him in a private school specializing in educating students with autism, where he improved considerably. “Te school developed a ‘behavioral intervention plan’ that identified Endrew’s most problematic behaviors and set out particular strat-

60 School Transportation News • MAY 2017

egies for addressing them. [Te school] also added heft to Endrew’s academic goals. Within months, Endrew’s behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school.” His parents sought reimbursement for his tuition at the private school on the basis that the school district had not provided the boy a FAPE in a timely en- vironment prior to his enrollment at the private school. Te district prevailed at each level of administrative and judicial proceeding based on its claim that the Supremes’ opinion in the 1982 case Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley stood for the proposition that “a child’s IEP is adequate as long as it is calculated to confer an ‘educational benefit [that is] merely. . .more than de mi- nimis.” Te Tenth Circuit Court of Appeals had agreed with the district that Endrew’s IEP had been “reasonably calculated to enable [him] to make some progress.” What did IDEA require before Endrew F.? Te

FAPE standard defined by IDEA requires provision of “special education” and “related services” “to meet the unique needs” of a child with a disability via an “individualized education program” – IEP – “reason- ably calculated to enable the child to receive education- al benefits.” In the Rowley case, the court noted that IDEA requires States to “educate a wide spectrum” of children with disabilities, and declined “to establish any one test for determining the adequacy of educational benefits” to which all children with disabilities covered by IDEA were entitled. Te result has been a split among the eleven circuit courts across the country as to the level of benefit required. Te Rowley Court had observed that the definition

of FAPE set forth in federal law was “cryptic rather than. . .comprehensive.” What was not mysterious however, and what has been echoed most recently by attorney Julie Weatherly at TSD, by Dr. Linda Bluth at countless conferences and articles, and ad nauseum by yours truly throughout my 20 years of working with school transportation professionals, was that appropriate transportation for a child with a disability who requires transportation in order to receive educational benefits – the definition of a “related service” – must be decided on a case-by-case basis. I would argue that “case-by-case


Peggy A. Burns is Tenured Faculty, Emeritus of the TSD Conference as well as former school district in-house counsel, editor of Legal Routes, and a consultant on student transportation compliance issues. She has written numerous articles for School Transportation News and is a past contributing editor of the magazine.

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