# Amicus Curiae Brief — Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017) (No. 15-827) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0644%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text 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 > 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 “§ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0644%3A17. Public record. Not legal advice.