Following the United States Supreme Court’s decision of earlier this year in Endrew F. v. Douglas County School District, appellate courts, including the United States Supreme Court, have typically remanded special education cases pertaining to whether a student received a free appropriate education [“FAPE”] back to the lower courts for further review. In contrast, the United States Court of Appeals for the Second Circuit – which is the federal appellate court that has jurisdiction over Connecticut, New York and Vermont — has routinely applied the Supreme Court’s new standard to cases before it and issued ruling based on the record as it stands. While Endrew F. has often been touted as making a major change in the FAPE analysis, thus far, this has not been the case in the Second Circuit. Rather, while recognizing the new “more than de minimis” standard, the Court’s analysis to date has been remarkably similar to its pre-Endrew F. interpretation.
In its first case analyzing the new standard, D.B. v. Ithaca City School District, the Second Circuit denied reimbursement for private school tuition to the parents of an eighteen year old student identified with a non-verbal learning disability. In denying this request, the appellate court noted that Endrew F. required the school to offer an Individualized Education Program [“IEP”] that was “reasonable” not one that was “ideal.” It then reverted back to its prior analysis and noted that the IDEA does not require a school district to “maximize each handicapped child’s potential.” It further held that the court should not “substitute [its] own notions of sound educational policy for those of the school authorities under review.” Based on this, the Second Circuit found that the program offered was sufficiently tailored to the individual needs of the student to ensure meaningful progress because it identified and responded to the child’s learning disability.
In its most recent case, N.B. v. New York City Department of Education, the Second Circuit addressed a request for private school tuition for a student with autism. The court interpreted the Endrew F. standard to mean that “the IEP need not bring the child to grade-level achievement, but it must aspire to provide more than de minimis educational progress.” Using this standard, the court found that the IEP in question was designed to provide FAPE despite a higher student-to-adult ratio than recommended by the parents’ experts and despite the lack of a specific methodology spelled out in the IEP. The Court also noted that the relevant question was not whether the IEP was “ideal” but whether it was “reasonable.” The Court thus upheld the denial of tuition reimbursement. The Court had previously used a similar analysis in R.B. v. New York City Department of Education, also to deny a request for tuition reimbursement.
While the Second Circuit has not defined what it means by “more than de minimis progress” it is clear that this new standard does not require a school district to maximize the potential of each disabled student or ensure that each student is achieving at grade level. Rather, the analysis likely will continue to focus on what is reasonable for the student based on the student’s individual needs.