Big Changes in Special Education Law

February and March saw big changes in special education jurisprudence.  The Supreme Court recently issued two decisions that clarified aspects of the Individuals with Disabilities Act (IDEA).  In February, the Court in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), developed a more clear and definitive test for determining whether exhaustion of administrative remedies is required before a plaintiff files a lawsuit in state or federal court.  The Court issued another IDEA opinion on March 22, 2017.  In Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), the Court changed the standard that schools must meet in order to comply with their substantive obligations under the IDEA to offer a disabled student a Free Appropriate Public Education (FAPE) through an Individualized Education Plan (IEP).


The IDEA is an ambitious federal effort to promote the education of disabled children.  Its purpose is to ensure that all children with disabilities have available to them appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.  The IDEA grants federal financial assistance for the education of disabled children to all states that agree to provide children with a FAPE.

The IDEA also establishes comprehensive administrative procedures for resolving disputes by students with disabilities who claim that they have been denied educational opportunities or benefits.  Although a student may eventually bring an IDEA action in state or federal court, a student bringing an action under the IDEA must first exhaust available administrative remedies, which in Wisconsin consists of an administrative “due process” hearing administered by an administrative law judge.  The IDEA’s exhaustion requirement also extends beyond the IDEA and applies to claims brought under other federal laws as well, such as the Americans with Disabilities Act, the Rehabilitation Act, and Title IX.

 Fry –Exhaustion is only necessary when the suit is about the denial of a FAPE

In Fry, the Court held that exhaustion of administrative remedies is not necessary when the “gravamen”, or the crux of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—a FAPE.  In this case, a child with cerebral palsy challenged her elementary school’s decision to prohibit her trained service dog from accompanying her to school.  The Court remanded the case to the Court of Appeals for a proper analysis of whether the crux of the complaint sought the denial of a FAPE.

The Court provided two hypothetical questions for lower courts to ask in helping determine whether the crux of a complaint concerns the denial of a FAPE:

(1) Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library?

(2) Could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?

When the answer to both those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject.  But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so.

The Court also provided examples of disability based claims that did, and did not, implicate a FAPE: a wheelchair-bound child suing his school for discrimination under the Americans with Disabilities Act because the building lacks access ramps does not need to exhaust administrative remedies under the IDEA, but in contrast, a student with a learning disability suing his school for failing to provide remedial tutoring does need to exhaust administrative remedies.

Fry is important in that it provides an updated and clearer test for when exhaustion of administrative remedies is required under the IDEA.  This new test abrogated the long-standing guidance articulated by the Seventh Circuit Court of Appeals in Charlie F. by Neil F. v. Board of Education of Skokie School District 68, 98 F.3d 989 (7th Cir. 1996), which stated more generally that exhaustion is required when the genesis and the manifestations of the complaint are educational.

Moving forward, Fry will be implicated any time a disabled student brings a lawsuit against his or her school without first requesting a due process hearing.  When a school is faced with such a lawsuit, it should ask the two hypothetical questions fitting the allegations of the complaint within the Court’s framework.  While courts have not yet had much of an opportunity to apply Fry due to how recently the decision was issued, it appears that exhaustion is more likely to be deemed unnecessary if it relates to access issues.  In contrast, exhaustion is likely necessary when the claims focus on the development of an IEP or the provision of educational services to a disabled student.  For example, the Eighth Circuit recently held that under Fry, a complaint that an autistic student was improperly put in restraints and isolated was subject to the exhaustion requirement.  See J.M. v. Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017).

Through Fry, the Court has painted a clearer picture and provided a more objective test for determining whether a complaint by a disabled student must be exhausted before filing suit.

Endrew F. – A school must offer an IEP reasonably calculated to enable a child to make progress appropriate under the circumstances

As stated above, the IDEA offers states federal funding to assist in educating children with disabilities as long as the states provide every eligible child a FAPE by means of a uniquely tailored IEP.

In Endrew F., an elementary school student with autism sought reimbursement for enrollment in a private school due to the insufficiency of his public school IEP.  The school developed goals for his IEP, but the plaintiff made little to no progress and regressed educationally.  Before he began fifth grade, the plaintiff’s parents enrolled him in a private school where he flourished and made significant academic progress.  The Court addressed whether the public school provided an IEP that was sufficient to ensure that the plaintiff had access to a FAPE.

In answering this question, the Court departed from the thirty-five-year-old standard it set forth in Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982), where the Court held that an IEP must be reasonably calculated to provide “some educational benefit.”  The Tenth Circuit Court of Appeals had interpreted Rowley to establish a rule that a child’s IEP is adequate if it is calculated to confer and educational benefit that is “merely more than de minimis.”  Endrew F., 137 S. Ct. at 1001.  In overturning the Tenth Circuit, the Court held that: “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 999.

The Court further explained that the “reasonably calculated” qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials, and that the IDEA contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.  The Court focused on an IEP’s aim to enable the child to make progress by creating a plan that is specifically designed to meet the child’s unique needs.  The Court, however, specifically declined to elaborate on what “appropriate” progress would look like from case to case.  Instead, the Court explained that it’s the nature of the IDEA that the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.

Practically speaking, the standard in Endrew F. is more detailed and will require a more in depth child-by-child view of a FAPE.  In developing an IEP going forward, a school should consider a child-centric approach, one that considers the specific disability and academic abilities of the student, and tailor those unique characteristics into a plan that will enable the student to make some sort of measurable progress.  While each situation will necessarily be viewed on a case-by-case basis, the Court’s opinion appears to express that school districts will be required to provide more individualized special education services than those deemed acceptable in the past.

The world of special education law is changing, and it will be important to be cognizant of how the Courts of Appeals and District Courts will decide special education cases in light of the new decisions of Fry and Endrew F.  By following the outcomes in lower courts, trends can be seen and factors developed in order to better assess any future litigation.

If you have any questions about this article, please contact an attorney at Mallery & Zimmerman.