Amicus Curiae Brief — Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017) (No. 15-827)

Supreme Cour. ..

RE FILED

AND : No. 15-827 NOV 2 1 20%

BREF OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

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ENDREW F., A MINOR, BY AND THROUGH HIS PARENTS

AND NEXT FRIENDS, JOSEPH F. AND JENNIFER F.,

Petitioner,

v.

DOUGLAS COUNTY SCHOOL DISTRICT RE-1,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF OF AMICI CURIAE COUNCIL OF

PARENT ATTORNEYS AND ADVOCATES,

CHILDREN AND ADULTS WITH ATTENTION-

DEFICIT/HYPERACTIVITY DISORDER,

AND THE CALIFORNIA ASSOCIATION

FOR PARENT-CHILD ADVOCACY

IN SUPPORT OF PETITIONER

a

ee SO oe

Caroline J. Heller Selene Almazan-Altobelli

Counsel of Record Alexis Casillas

GREENBERG TRAURIG, LLP Judith A. Gran

The MetLife Building Catherine Merino Reisman

200 Park Avenue Ellen Saideman

New York, New York 10166 COUNCIL OF PARENT ATTORNEYS

212-801-9200 AND ADVOCATES

hellerc@gtlaw.com Counsel for Amici Curiae

P.O. Box 6767

Towson, Maryland 21285

November 21, 2016 844-426-7224

“Tiley or Caner

Lew Libsery

1

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF

Fg | RN Sra a ers ee Ee l

SUMMARY OF THE ARGUMENT... 4

SE og 3 , a. 7

|. Rowley Instructs Federal Courts

to Consider and Adhere to Federal

Education Policy in Construing

IDEA’s Obligations............................ 7

Il. The Legal and Educational Policy

Landscape Has Changed Since

eg, ene ERED Bm wath? A Nchys: hk RTEE 10

[{f. IDEA Imposes Specific Obligations

on Schoo! Districts and the School

District Failed to Comply with

These Obligations in this Case ....... 17

A. IDEA Contains Substantive

Requirements for Appropriate

Ct lis ES ae 17

1. School Districts Must Evaluate

Children in All Areas of

Suspected Disability and

Use the Evaluation as the

Foundation for Developing

a Program and Goals............ 18

il

Page

2. School Districts Must Develop

Measurable Goals to Address

the Student’s Disability-

Related Needs that Ensure

Progress in the General

Education Curriculum.......... 19

3. IDEA Explicitly Requires

Course Correction if a Child

Is Not Making Progress ....... 20

B. The Tenth Circuit Failed to Apply

These Standards Appropriately to

I speed ite, SIN Aap e 0 bs RC eee 21

SAINTE nee ccna vetscudénnbbeddiuemsvebecmpne renee 24

lil

TABLE OF AUTHORITIES

Page(s)

Cases

Bd. of Educ. of Evanston-Skokie Cmnty.

Consol. Sch. Dist. 6J v. Risen,

No. 12 C 5073, 2013 U.S. Dist. LEXIS 88575

(N.D. Ill. June 25, 2013) .......-.:.2e- reece eeee 22

Bd. of Educ. of Hendrick Hudson Cent.

Sch. Dist., Westchester Cty. v. Rowley,

458 U.S. 176 (1982)..........cccceceeeeeeeeeeeeeees passim

Danielle G. v. N.Y.C. Dep't of Educ.,

No. 06-CV-2152 (CBA), 2008 WL 3286579

(E.D.N.Y. Aug. 7, 2008)...........-.:-:-0-seeeeee es 23

JSK by and through JK v. Hendry Cty.

Sch. Bd.,

941 F.2d 1563 (11th Cir. 1991)..........-..... 9

L.O. v. N.Y.C. Dep’t of Educ.,

822 F.3d 95 (2d Cir. 2016) ...........----.-.- + 19

M_B. ex rel. Berns v. Hamilton Se. Sch.,

668 F.3d 851 (7th Cir. 2011)............-..-.-+ 9

Milliken v. Bradley,

418 U.S. 717 (1974)...........cccccececsrcerssenseees 7

Morgan v. Hennigan,

379 F. Supp. 410 (D. Mass. 1974)...........- 7

Morgan v. Kerrigani,

388 F. Supp. 581 (D. Mass. 1975)........---- 7

IV

Page(s)

Mrs. B. v. Milford Bd. of Educ.,

103 F.3e 1114 a Cir. 1907) ..........<........ 9

O.S. v. Fairfax Cty. Sch. Bd.,

804 F.3d 354 (4th Cir. 2015).................... 8

P. v. Wissahickon Sch. Dist.,

No. 05-5196, 2007 U.S. Dist. LEXIS 44945

(K.D. Pa. June 20, 2007), aff'd in part,

reud in part on other grounds,

310 F. App’x 552 (3d Cir. 2009)............... 23

Federal Statutes

Americans with Disabilities Act,

Bh Ee eg RES Sere en l

Carl D. Perkins Vocational and Technical

Education Act, Pub. L. No. 98-524,

ER at ln AES PAD seieadES “tee SESE LO

Civil Rights Act of 1871, ch. 22,

17 Stat. 13 (codified as amended

ee) te A ROR ee eee 1

Kducation for All Handicapped

Children Act,

Pub. L. No. 94-142, 89 Stat. 773 (1975)... 4,7

Kducation of the Handicapped Act

Amendments of 1990,

Pub. L. No. 101—476, 104 Stat. 1103

3a Eee Elen cir eet mL VRB aan ney HEP BP 11

Page(s)

Individuals with Disabilities

Education Act,

Pub. L. No. 108-446,

ET UD... ccesnccucevcteusoecenoncs 13

No Child Left Behind Act,

Pub. L. No. 107-110,

LEG BME. PGBS CED once cccccccccveces... Anew 6 16

The Rehabilitation Act of 1973,

Section 504, 29 U.S.C. § 794.................... 1

i cco nscdbeusueeune 1, 4,13

Se rare Oe IID ovis cnicscsscvesccassecncvenne 14

ee Re ine hE OD 6 iacis cnececciscacnedsesepncs 3,3

ee an snscsecessees 18

Be is Oe A NUD voc deiversinnecsescovesesenceers 11

a ipdcocuSbuaboredeveseke 6

Se Re a i ac akannatenvnnntdsnantusues 18

Oe i aes i cwunhnnapnegueenaane 18

Se Me re Se he ICID ons oicccncssceccccssrsecesenes 18

0 TEED. © PARODY... <ncossececcoseses-s.s 18

LR Tyee ee) |) t | een re 18

20 U.S.C. § 1414(c)(1)(B)G), (d)(4)—(5)(A) ..... 20

Be ee dae aa wcdied una casusyeumiwws wens 18

20 U.S.C. § 1414(C)(AVQ)(ID ......... 00. rex 19

20 U.S.C. § 1414(d)(1)(A)(TV).......... 0. eee 14

vl

20 U.S.C. § 1414(d)(4)(ii)(D)......-ceececececeeeeee

26 U.S.C. § BROT of G06 Sinistccccncmeeee

20 U.B.C. § GOO1 60 COG. dovsccscscsccueceeases

BO U.S.C. FG EEE) 0c cseecisencsecndseetessvenine

20 U.S.C. & GBi Rem MUD ...noskcsccscccssecaauans

20 U.S.C. § GBi BRIE) . «0s ccvasseexecsiasaacien

State Statutes

Mass. Gen. Laws ch. 69,

BB: LEP BEE CED es vcciccedsdcsksisecesataemunne

Federal Regulations

34 C.F.R. Pt. 300, app. A, § IV, at 115.........

34. CF EE.. 9 Pe ciscsisscksestcrteeuetnee

34 C.F.R. § 300.324(a)(1)(iii)......0-.0----eseeee.

42 Fed. Reg. 42474 (Aug. 23, 1977)..........

71 Fed. Reg. 46540 (Aug. 14, 2006) ..........

80 Fed. Reg. 50773 (Aug. 21, 2015)......... |

Legislative Materials

S. Rep. No. 108-185 (2008)..........ccc:cccc00eee.

Page(s)

20

10

12

16

16

17

11

14

vu

Page(s)

Other Authorities

California Dep't of Educ.,

Special Educ. Div., Special Education

Self-Review: Instructions and Forms

Manual (revised October 14, 2013),

https://www.google.com/url?sa=t&rct=

j&q=Kesrc=s&source=web&cd=1&cad=

raakuact=8&ved=VahUKEwilrK3Clb-

bQAhUrj I QKHfTDCagQFgggMAA&ur!=

ftp%3A%2F%2F ftp.cde.ca.gov%2Fsp%

2Fse%2Fds%2F2013-14%2520SESR%

2F2013-14%2520SESR%2520Instruction”s

2520Manual.doc&usg=AFQj)CNEQ9Qm

Uiayeede!| TWITerbWdGmhma................. 21

Diane M. Browder, et al.,

Creating Access to the General Curriculum

with Links to Grade-Level Content for

Students with Significant Cognitive

Disabilities: An Explication of the

Concept, 41 J. Special Educ. 2 (2007)...... 16

Ginevra Courtade, et al.,

Seven Reasons to Promote Standards-Based

Instruction for Students with Severe

Disabilities: A Reply to Ayres, Lowrey,

Douglas, & Sievers (2011),

47(1) Educ. & Training in Autism

& Developmental Disabilities 3 (2012).... 15

vill

Page(s)

Jan Hoffman,

Helping Autistic Students Navigate Life

on Campus, N.Y. Times, Nov. 20, 2016... 17

Kimberly A. Mearman,

Educational Benefit Review Process:

A Reflective Process to Examine

the Quality of 1EPs, State Educ. Res.

Ctr. of Conn., at 3,

http://www.ctserc.org/assets/documents/

news/2013/serc-edbenefit.pdf

(last visited Nov. 18, 2016) ...................... 20

Penn. Dep't of Educ.,

Educational Benefit Review (EBR),

2 Special Education Leader |

(August 1, 2014), http://pattan.net-

website.s3.amazonaws.com/images/

2014/09/26/LDR 2 1_EBRO0814_pdf.......... 21

Richard W. Riley,

The Improving America’s Schools Act

of 1994, Reauthorization of Elementary

and Secondary Education Act,

U.S. Dep’t of Educ., at 4 (Sept. 1995),

https://www?2.ed.gov/offices/OESE/

archives/legislation/ESEA/brochure/

POUICEIIIIEE hs. caudvascrisuruneuodeamadodaieanmennsnde 11

1X

Page(s)

U.S. Dep’t of Educ., Office of Special Educ.

and Rehab. Servs.,

OSERS Dear Colleague Letter on Free

and Appropriate Public Education (FAPE),

at 1 (Nov. 16, 2015), http://www?2.ed.gov/

policy/speced/guid/idea/memosdeltrs/

guidance-on-fape-11-17-2015.pdf ............. 15, 19

V. Mark Durand,

Using Functional Communication

Training as an Intervention for the

Challenging Behavior of Students

with Severe Disabilities (May 1993),

http://eric.ed.gov/7id=ED359697 .............. 23

STATEMENT OF INTEREST

OF AMICI CURIAE

Council of Parent Attorneys and Advocates

(“COPAA”) is a not-for-profit organization for par-

ents of children with disabilities, their attorneys

and advocates.' COPAA believes effective educa-

tional programs for children with disabilities can

only be developed and implemented with collabora-

tion between parents and educators as equal par-

ties. COPAA does not represent children but

provides resources, training, and information for

parents, advocates, and attorneys to assist them in

obtaining the free appropriate public education

such children are entitled to under the Individuals

with Disabilities Education Act (“IDEA” or “Act”),

20 U.S.C. § 1400 et seg. COPPA’s attorney members

represent children in civil rights matters. COPAA

also supports individuals with disabilities, their

parents, and advocates, in seeking to safeguard the

civil rights guaranteed to those individuals under

federal laws, including the Civil Rights Act of 1871,

ch. 22, 17 Stat. 13 (codified as amended at 42

U.S.C. § 1983) (“Section 1983”), Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Sec-

tion 504”) and the Americans with Disabilities Act,

42 U.S.C. § 12101 et seg. (“ADA”).

' Both parties have given written consent to the filing of

all amicus briefs. No counse! for a party authored this brief in

whole or in part, and no person other than amicus, its mem-

bers, or their counsel made a monetary contribution to the

preparation or submission of this brief.

”)

a

COPAA brings to the Court the unique perspec-

tive of parents, advocates, and attorneys for chil-

dren with disabilities. Many children’ with

disabilities experience significant challenges.

Whether these children eventually gain employ-

ment, live independently, and become productive

citizens depends in large measure on whether they

secure their right to the free appropriate public

education guaranteed under the IDEA and other

educational policies. Indeed, the soul of the IDEA

is its codified goal that “all children with disabili-

ties have available to them a free appropriate pub-

lic education that emphasizes special education

and related services designed to meet their unique

needs and prepare them for further education,

employment, and independent living >

20 U.S.C. § 1400(d)(1)(A).

Through its work with parent, advocate, and

attorney members across the United States,

COPAA understands the real world importance of

an universally applicable, clearly defined legal

standard, consistent with the intent and purpose of

the IDEA, concerning the educational benefit that

school districts must confer on children with dis-

abilities to provide them with the free appropriate

public education guaranteed by the IDEA, the

question before the Court in this case.

Children and Adults with Attention-Deficit/

Hyperactivity Disorder (“CHADD”), a 501(c)(3)

not-for-profit organization, is the largest national

organization representing children and adults with

attention-deficit/hyperactivity disorder. Founded

3

in 1987, CHADD currently has approximately

10,000 individual members and 2,000 professional

members. CHADD works to ensure that the rights

of students with disabilities under the IDEA, Sec-

tion 504 and the ADA are protected through leg-

islative advocacy, training and public awareness.

CHADD is dedicated to ensuring that students cov-

ered by the [IDEA receive a free appropriate public

education that “emphasizes special education and

related services designed to meet their unique

needs and prepare them for further education,

employment, and independent living .

20 U.S.C. § 1400(d)(1)(A).

The California Association for Parent-Child

Advocacy (“CAPCA”) is a volunteer-based organ-

ization engaging in legislative and policy advocacy

on matters of concern to students with disabilities

in California. Members of CAPCA participate as

professionals and/or as family members of students

with disabilities, in Individualized Education Pro-

gram meetings, resolution sessions, mediations,

due process hearings and appeals throughout Cali-

fornia. CAPCA was founded in 2003 when parents

and advocates came together to resist proposals in

the California legislature to drastically shorten the

statute of limitations in special education cases

and to impose other restrictions on the exercise of

parental and student rights.

4

SUMMARY OF THE ARGUMENT

This Court has been asked to decide: “What is the

level of educational benefit that school districts

must confer on children with disabilities to provide

them with a free and appropriate public education

guaranteed by the Individuals with Disabilities

Education Act, 20 U.S.C. §1400 et seq.” The

Respondent proposes that this Court adopt the lax

and vague standard that school districts need only

confer “more than de minimis educational benefit”

in order to meet the IDEA’s requirements, Supple-

mental Brief in Opposition to Petition for Writ of

‘ertiorari for Respondent at 1, Endrew F. v. Douglas

County School District Re-1, No. 15-827 (Sept. 6,

2016), but this standard is contrary to the plain

language of the IDEA, its legislative history,

and this Court’s decision in Board of Education of

Hendrick Hudson Central School District, Westchester

County v. Rowley, 458 U.S. 176 (1982). More impor-

tantly it stands at odds with the achievement driven

educational policies that have replaced the access

approach to educational policy that this Court per-

ceived in Rowley.

In 1975, gross disparities in access to education.

al programming and school campuses for students

with disabilities prompted Congress to enact the

Education for All Handicapped Children Act

(“EHA”), Pub. L. No. 94-142, 89 Stat. 773, to guar-

antee that children with disabilities obtain a “free

appropriate public education.” Just seven years

later, in 1982, this Court considered, inter alia:

“What is meant by the Act’s requirement of a ‘free

5

appropriate public education’?” Rowley, 458 U.S. at

186. Against the historical backdrop of an educa-

tional policy that focused on children with disabili-

ties obtaining access to public school campuses and

receiving any education, whatsoever, this Court

“conclude[d] that the ‘basic floor of opportunity’

provided by the Act consists of access to specialized

instruction and related services which are individ-

ually designed to provide educational benefit to the

handicapped child.” /d. at 201.

However, since this Court issued its decision in

Rowley, educational policy has steadily shifted

away from framing educational benefits for chil-

dren with disabilities (and others) in terms of

access to education and focusing, instead, on stan-

dardized academic achievement to progress. Thus,

any effort to quantify the amount of educational

benefits required by the Act, in light of Rowley’s

“basic floor of opportunity” approach is analogous

to forcing an access-driven peg into, what is now,

an achievement-based hole. The result of which is

that courts have attempted to craft convoluted and

often meaningless standards to determine whether

a school district has conferred an educational ben-

efit upon a child with disabilities. This effort has

caused entirely inconsistent outcomes across the

United States.

Because of the significant intervening legal, pol-

icy, and educational developments since Rowley,

Amici propose the following standard: A child “ben-

cfits from” instruction when the services target all

areas of educational need in order to ensure achieve-

6

ment consistent with non-disabled peers in the

general education curriculum so as to enable stu-

dents to be prepared for post-school activities.

Once a parent challenging his or her child’s indi-

vidualized education program has demonstrated

the child has failed to progress commensurately

with nondisabled peers in the general education

curriculum, the court’s inquiry then shifts to deter-

mining whether the schoo! district’s most recent

assessments and evaluations, initial individualized

education program planning, and recalculation in

light of lack of expected progress has all occurred

pursuant to the requirements laid out in 20 United

States Code Section 1414, as discussed below.

Because Congress intended this country’s educa-

tion policy to further the ultimate goals of learning

and close achievement gaps between all students in

that high-expectations general education curricu-

lum, departures from either the rate of learning on

a particular campus, from the overall content

expected to be mastered, or the focus in the gener-

al education at all must be justified by the assess-

ments, data, and planning Congress established for

understanding how educational decisions were to

be made for each individual] student.

7

ARGUMENT

|. Rowley Instructs Federal Courts to Con-

sider and Adhere to Federal Education

Policy in Construing IDEA’s Obligations

This Court decided Rowley only seven years after

Congress determined that students had a right to

be educated in public school! settings regardless of

their disability status, Pub. L. No. 94-142, 89 Stat.

773 (1975), and only five years after the clarifying

regulations were finalized in 1977, Education of

Handicapped Children: Implementation of Part B

of the Education of the Handicapped Act, 42 Fed.

Reg. 42474 (1977). The Rowley decision also came

on the heels of the racial desegregation efforts

across the country, see e.g., Morgan v. Hennigan,

379 F. Supp. 410, 482—83 (D. Mass. 1974) (ordering

desegregation of the Boston Public School Systems)

supplemented in Morgan v. Kerrigani, 388 F. Supp.

581 (D. Mass. 1975); see also Milliken v. Bradley,

418 U.S. 717 (1974) (addressing desegregation plans

in Detroit). Given this backdrop and the focus on

access to schools for all children across the country,

it is unsurprising that this Court concluded in

Rowley that “[w]le would be less than faithful to our

obligation to construe what Congress has written if

in this case we were to disregard the statutory lan-

guage and legislative history of the Act by conclud-

ing that Congress had imposed upon the States a

burden of unspecified proportions and weight, to be

revealed only through case-by-case adjudication in

the courts.” 458 U.S. at 190, n.11.

8

Rowley emphasized that courts must look to fed-

eral policy, as well as the explicit definition in the

IDEA, to ascertain the substantive rights conferred

by the Act. Specifically, this Court stated, “|w]e are

loath to conclude that Congress failed to offer any

assistance in defining the meaning of the principal

substantive phrase used in the Act. It 1s beyond

dispute that, contrary to the conclusions of the

courts below, the Act does expressly define ‘free

appropriate public education’. . . .” /d. at 187.

Rowley goes on to state: “Thus, if personalized

instruction is being provided with sufficient sup-

portive services to permit the child to benefit from

the instruction, and the other items on the defini-

tional checklist are satisfied, the child is receiving

a ‘free appropriate public education’ as defined by

the Act.” Id. at 189. The “other items from the def-

initional checklist” require that instruction and

services: (i) “be provided at public expense and

under public supervision”; (11) “mect the State’s

educational standards”; (iii) “approximate the

grade levels used in State’s regular education”; and

(iv) “comport with the child’s IEP.” Jd.

Following Rowley, federal courts have employed

a variety of adjectives—“some,” “minimal,” “mean-

ingful,”—-and the phrase “more than de minimis,”

in attempts to quantify how much educational ben-

efit an individualized education program (“IEP”)

need confer upon a child to provide a free appropri-

ate public education (*“FAPE”) under the IDEA. See

O.S. v. Fairfax Cty. Sch. Bd., 804 F.3d 354, 360

(4th Cir. 2015) (noting that the Fourth Circuit’s

9

“standard remains the same as it has been for

decades: a school provides a FAPE so long as a

child receives some educational benefit, meaning a

benefit that is more than minimal or trivial. . .”);

M.B. ex rel. Berns v. Hamilton Se. Sch., 668 F.3d

851, 862 (7th Cir. 2011) (agreeing that a student

who makes just more than trivial progress has

received a FAPE); Mrs. B. v. Milford Bd. of Educ.,

103 F.3d 1114, 1120 (2d Cir. 1997) (describing that

a state LEP must be reasonably calculated to pro-

vide some “meaningful” benefit (citing Rowley, 458

U.S. at 192)); JSK by and through JK v. Hendry

Cty. Sch. Bd., 941 F.2d 1568, 1572-73 (lth Cir.

1991) (|wlhile a trifle might not represent ade-

quate benefits,” some benefit is all that is required)

(internal quotation marks omitted).

However, these adjectives generate the miscon-

ception that the IDEA requires a set, quantifiable

amount of educational benefits for all children with

disabilities when, in fact, the educational benefit

required by the IDEA will vary from child to child

because the IDEA also requires that programs and

services must be “individually tailored” and “rea-

sonably calculated” in light of the specific student’s

unigue needs. As discussed more fully in the next

section, the standards articulated by federal

courts, in attempting to quantify the amount of

educational benefit an LEP must provide, fail to

take into account changes in the law, as well as

changes in federal educational policy. Accordingly,

pursuant to the IDEA, to the extent that the stu-

dents are not making progress in the general edu-

10

cation curriculum commensurate with their non-

disabled peers, educational benefit inquiry must be

addressed in light of the students’ unique needs as

reflected in recent evaluations and data available

to the LEP teams.

ll. The Legal and Educational Policy Land-

scape Has Changed Since Rowley

The history of education in the United States has

come a long way since Rowley, and the context of

educational entitlements during the 1970s through

the 1980s were very different from what they are

today. The 1975 statute had ended the exclusion of

large numbers of children with disabilities from

public school, but since the early 1980s, Congress

has determined that mere access to education is

not enough. Public education policy agenda and

statute after statute has established a substantive

and achievement-driven basic floor of educational

opportunity which all students, not just students

with disabilities, must reach.

Shortly after this Court decided Rowley, educa-

tional policy changed from addressing integration

and access to addressing educational results. In

1984, the Carl D. Perkins Vocational and Technical

Education Act, Pub. L. No. 98-524, 98 Stat. 2437

(current version at 20 U.S.C. § 2301 et seq. (2006)),

was passed with the goal of increasing vocational-

technical education in the United States. In line

with the shifting focus to outcomes, in 1990, eight

years after Rowley, Congress reauthorized the

[DKA—the successor to Pub. L. No. 94-142—and

11

added requirements that transition services be

included in IEPs so as to prepare students for post-

secondary life. See Pub. L. No. 101—476, 104 Stat.

1108, 1103-04 (1990) (amending 20 U.S.C.

§ 1401(a)(19) to read “[t]he term ‘transition servic-

es’ means a coordinated set of activities for a stu-

dent, designed within an outcome-oriented process,

which promotes movement from school to post-

school activities, including post-secondary educa-

tion, vocational training, integrated employment

(including supported employment). . . ”).

The shift from an access-driven to a results-ori-

ented educational agenda continued in the 1990s

through the 2000s. In 1993, Massachusetts enacted

the Massachusetts Education Reform Act, which

created standardized tests as a measure of student

achievement and progress towards general educa-

tion curriculum measures. Mass. Gen. Laws ch. 69,

§§ 1D-1G (1993). In 1994, President Clinton signed

into law a reauthorization of the Elementary and

Secondary Education Act of 1965, now referred to

as the Improving America’s Schools Act (“LASA”),

with provisions for increased funding for education

of students with higher needs (bilingual and immi-

grant education), and a focus on preparing stu-

dents to “meet high academic standards in order to

succeed.” Kichard W. Riley, The Improving America’s

Schools Act of 1994, Reauthorization of Elementary

and Secondary Education Act, U.S. Dep’t of Educ.,

at 4 (Sept. 1995), https://www2.ed.gov/offices/OESE/

archives/legislation/ESEA/brochure/iasa-bro. html,

12

In 2001, Congress and President George W. Bush

built on the LASA’s focus on a core of challenging

state standards and expanded on Massachusetts’s

efforts, resulting in the No Child Left Behind Act

(“NCLB”) being signed into law on January 8, 2002.

See Pub. L.. No. 107-110, 115 Stat. 1425 (2002) (cur-

rent version at 20 U.S.C. § 6301 et seq. (2015)). The

NCLB had the overarching purpose of ensuring

“that all children [receive] a fair, equal, and signif-

icant opportunity to obtain a high-quality educa-

tion” and to close educational achievement gaps.

Pub. L. No. 107-110, 115 Stat. 1425, 1439-40 (2002).

Academic accountability was the cornerstone of

NCLB, which asked schools to develop educational

programming so as to ensure that cach student

reached at a minimum, proficiency, on challenging

State academic achievement standards and state

academic assessments. /d. Moreover, NCLB specif

ically called for our educational system to:

(1) ensurle| that high-quality academic

assessments, accountability systems,

teacher preparation and training, curricu-

lum, and instructional materials are aligned

with challenging State academic standards

so that students, teachers, parents, and

administrators can measure’ progress

against common expectations for student

academic achievement;

(2) meet{] the educational needs of low

achieving children in our Nation’s highest.

poverty schools, limited English proficient

children, migratory children, children

13

with disabilities, |ndian children, neglect-

ed or delinquent children, and young chil-

dren in need of reading assistance;.. .

(4) hold[] schools, local educational agen-

cies, and States accountable for improving

the academic achievement of all students,

and identifying and turning around low-per-

forming schools that have failed to provide a

high-quality education to their students,

while providing alternatives to students in

such schools to enable the students to

receive a high-quality education.

Id. (emphasis added).

In 2004, after aligning the basic floor of educa-

tional expectations with the “high-quality educa-

tion” standards in NCLB, Congress reauthorized

the IDEA again, strengthening the systems for

developing student programs and evaluating

progress. Pub. L. No. 108-446, 118 Stat. 2647

(2004) (current version at 20 U.S.C. § 1400 et seq.

(2015)).

Borrowing on the ideas and maxims in NCLB,

Congress wrote that:

Almost 30 years of research and experience

has demonstrated that the education of chil-

dren with disabilities can be made more

effective by—(A) having high expectations

for such children and ensuring their access

to the general education curriculum in the

regular classroom, to the maximum extent

possible, in order to—(i) meet devclopmen-

14

tal goals and, to the maximum extent pos-

sible, the challenging expectations that

have been established for all children;

and (ii) be prepared to lead productive and

independent adult lives, to the maximum

extent possible. . .

Pub. L. No. 108-446, 118 Stat. 2647, 2649 (2004)

(current version at 20 U.S.C. § 1400(c)(5)(A) (2015))

(emphasis added).

The Senate Report accompanying the 2004 reau-

thorization of the IDEA also provided that “[flor

most students with disabilities, many of their IEP

goals would likely conform to State and district

wide academic content standards and progress

indicators consistent with standards based reform

within education and the new requirements of

NCLB.” S. Rep. No. 108-185, at 29 (2003); see also

Pub. L. No. 108-446, 118 Stat. 2647, 2708 (current

version at 20 U.S.C. §1414(d)(1)(A)(IV) (2015))

(explaining that to achieve the IDEA’s goals, the

statute requires that an IEP provide such special

education, related services, and supports necessary

to: “advance appropriately toward attaining the

annual goals ... [and] to be involved in and

make progress in the general education

curriculum... .”) (emphasis added).

The Analysis of Comments and Changes accom-

panying the 2006 IDEA Part B regulations also

explained that Ҥ 300.320(a)(1)(i) clarifies that the

general education curriculum means the same cur-

riculum as all other children. Therefore, an LEP

15

that focuses on ensuring that the child is involved

in the general education curriculum will necessari-

ly be aligned with the State’s content standards.”

Assistance to States for the Education of Children

with Disabilities and Preschool Grants for Children

with Disabilities, Final Rule, 71 Fed. Reg. 46540,

46662 (Aug. 14, 2006).” Indeed, researchers have

documented the success of an approach that pro-

vides access to general education standards for stu-

dents with disabilities. See Ginevra Courtade, et

al., Seven Reasons to Promote Standards-Based

Instruction for Students with Severe Disabilities: A

Reply to Ayres, Lowrey, Douglas, & Sievers (2011),

* See also U.S. Dep't of Educ., Office of Special Educ. and

Rehab. Servs., OSERS Dear Colleague Letter on Free and

Appropriate Public Education (FAPE), at 1 (Nov. 16, 2015),

http://www2.ed.gov/policy/speced/guid/idea/memosdecltrs/

guidance-on-fape-11-17-2015.pdf (“To help make certain that

children with disabilities are held to high expectations and

have meaningful access to a State’s academic content

standards . . . [and] to clarify that an [IEP] for an cligible

child with a disability under the |LDEA] must be aligned with

the State’s academic content standards for the grade in which

the child is enrolled.”) (emphasis added); Improving the Aca-

demic Achievement ef the Disadvantaged; Assistance to States

for the Education of Children With Disabilities, Final Rule,

80 Fed. Reg. 50773, 50773--74 (Aug. 21, 2015) (describing how

States are “no longer authorize[d] ... to define modified

academic achievement standards .. . for eligible students

with disabilities” because “[s]lince these regulations went into

effect, additional research has demonstrated that students

with disabilities who struggle in reading and mathematics

can successfully learn grade-level] content and make signifi.

cant academic progress when appropriate instruction, servic-

es, and supports are provided.”) /d. (footnote omitted).

16

47(1) Educ. & Training in Autism & Developmental

Disabilities 3, 3—5 (2012).°

The most recent iterations of the IDEA continued

Congress's policy of shifting from an access-driven

to an achievement-based educational agenda, and

were absolutely intended to align with the

shifting educational agenda, set forth in NCLB,

of “high-quality education” based on “academic

assessments, accountability systems, teacher

preparation and training, curriculum, and

instructional materials. . . aligned with challeng-

ing State academic standards.” Pub. L. No. 107-

110, 115 Stat. 1425, 1439 (current version at 20

U.S.C. §6301(1) (2015)).

In fact, the most recent iteration of our education

policy, the Every Student Succeeds Act (“ESSA’),

specifically contemplates coordination with the

IDEA, 20 U.S.C. § 6311(a)(1)(B) (2015), and expects

students with disabilities would meet the same

standards as their non-disabled peers except for in

cases of “students with the most significant cogni-

’ “Through [the IDEA] policies, the expectation for stu-

dents with significant cognitive disabilities has evolved from

simply participating in assessment; to the documented

achievement of adequate yearly progress in reading, math,

and science; to the expectation that these assessments docu-

ment achievement with clear links to state grade-level con-

tent standards, even when applying alternate achievement

standards for this population.” Diane M. Browder, et al.,

Creating Access to the General Curriculum with Links to

Grade-Level Content for Students with Significant Cognitive

Disabilities: An Explication of the Concept, 41 J. Special

Educ. 2, 2 (2007).

17

tive disabilities.” 20 U.S.C. §6311(b)(2)(D) (intend-

ing to ensure that no more than 1% of the total

number of students in a State may be assessed

using alternate assessments in any subject).

Indeed, the New York Times recently noted that

early intervention and education in the main-

stream, which includes a focus on academic

achievement, required by IDEA, has contributed to

the growing numbers of students with autism

entering college, with opportunities that “could not

have been imagined had they been born even a

decade earlier.” Jan Hoffman, Helping Autistic

Students Navigate Life on Campus, N.Y. Times,

Nov. 20, 2016, at Al.

Ill. IDEA Imposes Specific Obligations on

School Districts and the School District

Failed to Comply with These Obligations

in this Case

A. IDEA Contains Substantive Require-

ments for Appropriate Programming

This Court’s decision in Rowley requires “person-

alized instruction” with “sufficient supportive serv-

ices.” 458 U.S. at 189. The only way to determine

whether the [EP meets these requirements is to

analyze whether a school district has complied

with all of the substantive obligations created by

the IDEA.

18

1. School Districts Must Evaluate

Children in All Areas of Suspected

Disability and Use the Evaluation

as the Foundation for Developing

a Program and Goals

The IDEA provides that all students, suspected

of having a disability as well as those already

determined to be IDEA-eligible, have to be evaluat-

ed upon suspicion of disability, and subsequently

no less than once every three years. 20 U.S.C.

§ 1414(a) (2015). These evaluations must assess the

child in “all areas of suspected disability.” /d.

§ 1414(b)(3)(B). Evaluations must provide “relevant

information that directly assists persons in deter-

mining the educational needs of the child. . . .” ld.

§ 1414 (b)(3)(C). Indeed, the Act and its implement-

ing regulations require school districts, in develop-

ing a child’s IEP, to consider the most recent

evaluative data of the child, see id. § 1414(c)(1)(A);

34 C.F.R. § 300.324(a)(1)(Giii) (2016), and evalua-

tions are considered a foundation for the LEP. See

20 U.S.C. § 1414 (b), (d).

The Second Circuit recently held that:

The purpose of the requirement is to ensure

that a [school district], in formulating a stu-

dent’s LEP, provides the student with serv-

ices narrowly tailored to his or her

particular educational needs based on actu-

al and recent evaluative data from the stu-

dent’s education providers, so that the

developed IEP will reasonably enable the

19

child to receive the educational benefits to

which he or she is entitled by law.

L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 111 (2d

Cir. 2016).

2. School Districts Must Develop

Measurable Goals to Address the

Student’s Disability-Related Needs

that Ensure Progress in the Gen-

eral Education Curriculum

School Districts must develop measurable goals

designed to address disability-related needs so as

to enable the student to be involved in and make

progress in the general education curriculum. 20

U.S.C. § 1414(d)(1)(A)(@(ID (emphasis added). For

many children, that means creating high, yet

achievable, goals in line with grade-level general

education curriculum so as to meet the State aca-

demic content standards, 20 U.S.C. § 1401(9), even

if that requires presenting grade-level content in a

modified way. See OSERS Dear Colleague Letter on

Free and Appropriate Public Education (FAPE),

supra note 2, at 6—7.

The IEP team may, after careful consideration of

all evaluative data, determine that the child needs

goals aligned with alternate standards. In such a

case, the goals must align with the State’s grade-

level content standards for students in the gencral

education curriculum.

20

3. IDEA Explicitly Requires Course

Correction if a Child Is Not Mak-

ing Progress

The clearest indication of how procedural compli-

ance with the requirements of the IDEA does not,

alone, demonstrate a student has received educa-

tional benefit can be found in the obligation that

school districts continually update assessment and

data collection, and then update the IEP to ensure

that a student’s progress and goals adhere as close-

ly as possible to the high-quality general education

academic standards. Congress realized, at various

points of reauthorization, that the planning and

initial offering of a particular educational program

and course of study would not always lead to a

program that would enable the student to make

adequate educational progress. As such, the

IDEA requires that the school district make

changes in the goals or the services in the IEP to

enable the student to make progress. 20 U.S.C.

§ 1414(c)(1)(B)(Q), (d)(4)—(5)(A); 34 C.F.R. § 300.324.

Thus, IDEA mandates that the IEP Team a

ddress “any lack of expected progress toward the

annual goals and in the general education

curriculum, where appropriate ... .” 20 U.S.C.

§ 1414(d)(4)(i)(1).4

4 As part of their obligation to monitor local school dis-

tricts, several states have adopted a formal Educational Ben-

efit Review (“EBR”) protocol that carefully examines whether

students have made expected annual progress, and, if not,

whether sufficient educational services were provided. See

Kimberly A. Mearman, Educational Benefit Review Process: A

21

B. The Tenth Circuit Failed to Apply

These Standards Appropriately to

Endrew F.

Had the Tenth Circuit in Endrew F. v. Douglas

County School District Re-1, measured Endrew’s

Reflective Process to Examine the Quality of IEPs, State Educ.

Res. Ctr. of Conn., at 3, http://www.ctserc.org/assets/documents/

news/2013/serc-edbenefit.pdf (last visited Nov. 18, 2016);

Penn. Dep't of Educ., Educational Benefit Review (EBR),

2 Special Education Leader 1, 2-3 (August 1, 2014), http://

pattan.net-website.s3.amazonaws.com/images/2014/

09/26/LDR_ 2 1 EBRO814.pdf; California Dep’t of Educ.,

Special Educ. Div., Special Education Self-Review: Instruc-

tions and Forms Manual, at 21-24 (revised October 14, 2013),

https://www.google.com/url?sa-t&rct=j&q=&esre=s

&source=web&cd-—1&cad=rja&uact=8&ved=NahUKE

wilrK3C]lbbQAhUrj1 QKHfTDCagQFgggMAA&url=ftp

%3A%2F%2Fftp.cde.ca.gov%2Fsp%2Fse%2Fds%2F2013-

14%2520SESR%2F2013-14%2520SESR%2520Instruction

%2520Manual.doc&usg=AFQjCNEQ9Qm UiayeedclTWITerb-

WdGmhmaA. Indeed, EBR protocols are designed to determine

whether students’ IEPs offered educational! benefits by evalu-

ating whether the IEPs complied with the explicit substan-

tive requirements of IDEA cited herein. This EBR protocol

thus recognizes the relationship between good educational

programs and expected student progress; students are more

likely to make good progress in good educational programs

than in bad ones. Focusing on whether the student made any

progress at all on any goal, as the Tenth Circuit did here,

ignores the school district’s responsibility to assist students

with disabilities in making appropriate annual yearly

progress on all educational goals, and instead results in low-

ering expectations and providing lesser services for students

who do not make adequate progress, rather than improving

their educational programs so that the students can make

good progress.

22

(“Drew”) educational program against IDEA’s spe-

cific requirements, it would have determined that

the [EP failed to target all areas of educational

need. Additionally, Drew made no progress in a

number of educational and functional goals, and

his behaviors escalated over a two-year period to

the point that his behaviors were a substantial

impediment to any educational progress. See

Endrew F., 798 F.3d 1329, 1335-37 (0th Cir.

2015). Had the Tenth Circuit evaluated Drew’s

educational program against IDEA’s specific

requirements, it would have determined that the

school district failed to make any changes to Drew’s

program reasonably calculated to address these

behavioral problems.

When behavior is “a central component” of a

child’s disability, and the LEP fails to address the

“significant behavioral issues,” that deficiency

alone may render an IEP substantively inadequate.

Bd. of Educ. of Evanston-Skokie Cmnty. Consol.

Sch. Dist. 6J v. Risen, No. 12 C 5073, 2013 U.S.

Dist. LEXIS 88575, at *57 (N.D. Ill. June 25, 2013).

An I[KP’s failure to provide a Functional Behavioral

Assessment (FBA)° and a Behavioral Intervention

° Functional Behavioral Assessment (Ff BA) is a results-

oriented approach to behaviors, closely examining the func-

tion that the behavior serves for the individual, typically

through observation and data collection, developing a hypoth-

esis of the purpose the behavior serves and then working to

replace the challenging behavior with more appropriate

behaviors or skills. For example, for some individuals who

have communication disabilities, challenging behaviors serve

23

Pian (BIP) to address behaviors impeding learning

may itself constitute the denial of a FAPE. P. v.

Wissahickon Sch. Dist., No. 05-5196, 2007 U.S.

Dist. LEXIS 44945, at *28-29, *34—-35 (E.D. Pa.

June 20, 2007) (ordering reimbursement of tuition

where failure to create a BIP constituted denial of

a FAPE), affd in part, rev'd in part on other

grounds, 310 F. App’x 552 (8d Cir. 2009); see also

Danielle G. v. N.Y.C. Dep't of Educ., No. 06-CV-

2152 (CBA), 2008 WL 3286579, at *10—-12, *15

(E.D.N.Y. Aug. 7, 2008) (reversing findings of [HO

and SRO and holding that an IEP’s failure to

include an FBA and BIP, among other deficiencies,

deprived the student of a FAPE). This principle is

supported by the official commentary to the federal

regulations, which expressly states, “a failure to

consider and address [behaviors impeding

learning] in developing and implementing the

child’s LEP would constitute a denial of [a] FAPE to

the child.” 34 C.F.R. Pt. 300, app. A, § TV, at 115.

In short, Drew’s program did not comply with the

IDEA because the IEP team failed initially to tar-

get all areas of educational need in designing the

program. The IKP team compounded this error

when it failed to recognize, and correct, the defi-

ciencies in Drew’s program. Consequently, the

the function of communication and teaching the student bet-

ter methods of communication can successfully address the

challenging behaviors. See V. Mark Durand, Using Function-

al Communication Training as an Intervention for the Chal-

lenging Behavior of Students with Severe Disabilities (May

1993), http://eric.ed. gov/?id=EKD359697.

24

school district failed to provide Drew services

addressing all areas of his educational need, thus

failing to ensure achievement in the general educa-

tion curriculum consistent with his peers without

disabilities. This deprivation amounted to a denial

of a free appropriate public education.

CONCLUSION

In the more than 40 years since Congress passed

the EHA and the nearly 35 years since this Court

decided Rowley, in recognition that mere physical

“access” to education had been achieved for chil-

dren with disabilities, numerous amendments to

the Act and other educational laws have shifted

educational policy away from mere “access” to the

schoolroom and towards the goal of standardized

academic achievement and progress for all children

with disabilities. Consistent with that goal, Amici

therefore urge the Court to hold that an TEP con-

fers educational benefit when the schoo] district

complies with IDEA’s substantive obligations in

order to target all areas of a student’s educational

needs to ensure achievement in the general educa-

tional curriculum consistent with his or her peers

without disabilities. The importance of this univer-

sally applicable, clearly defined legal standard,

consistent with the intent and purpose of the IDEA

and federal educational policy cannot be gainsaid.

A free appropriate public education that confers

educational benefits consistent with this standard

will enable children with disabilities to attend col-

lege, graduate school or professional school, obtain

25

vocational training, obtain employment, and gain

self-sufficiency, i.e. become productive citizens.

Amici respectfully request that the Court reverse

the judgment of the Tenth Cireuit Court of

Appeals.

Respectfully submitted,

Caroline J. Heller

Counsel of Record

GREENBERG TRAURIG, LLP

The MetLife Building

200 Park Avenue

New York, New York 10166

212-801-9200

hellerc@gtlaw.com

Selene Almazan-Altobelli

Alexis Casillas

Judith A. Gran

Catherine Merino Reisman

Ellen Saideman

COUNCIL OF PARENT ATTORNEYS

AND ADVOCATES

Counsel for Amici Curiae

P.O. Box 6767

Towson, Maryland 21285

844-426-7224

November 21, 2016