As many in education are aware, on March 22, 2017, the U.S. Supreme Court published an opinion in a significant special education case: Endrew F. v. Douglas County School District RE–1, 580 U.S. ___ (2017). This decision clarified the standard for a free appropriate public education (FAPE) for students with disabilities:
To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
This decision confirmed that the standard of “merely more than the minimum” was too low. Essentially, the Court established two standards:
|Supreme Court Decision
||Student who is fully integrated in the regular classroom and able to achieve on grade level
||IEP must be reasonably calculated to enable the student to receive passing marks and advance from grade to grade
||Student who is not fully integrated and not able to achieve on grade level
||IEP must be appropriately ambitious / reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances
However, when the U.S. Supreme Court issued its decision on March 22, the case was not finished. The case was remanded back down to the lower courts to apply the new standard and determine whether Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school.
On February 12, 2018, in relying on the new standard from the Supreme Court, Judge Babcock of the United States District Court for the District of Colorado held that Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school. The judge decided that the IEP did not satisfy the Court’s revised FAPE standard. Minor changes in Endrew’s IEP were noted throughout the years – including updating and making minor or slight increases in the objectives, carrying over the same goals from year to year, or abandoning goals if they could not be met – but these minor changes were unacceptable as they provided the basic floor of opportunity, not progress appropriate in light of Endrew’s circumstances. (Note: Prior to the Supreme Court’s Endrew F. decision, these same IEP changes were found to meet the FAPE standard in Colorado by the same judge.)
Additionally, the judge determined that the school district could not hide behind the fact that the student’s severe behavioral problems prevented him from making appropriate progress because the school district failed to conduct a functional behavior assessment; to implement appropriate positive behavioral interventions, supports, or strategies; or to develop an appropriate behavior intervention plan. This failure on the school district’s part to appropriately address Endrew’s behaviors “cuts against the reasonableness of [his] IEP.” The court held that Endrew could have made greater progress had the school district implemented appropriate behavioral supports.
Although following Endrew F. back through the court system allows us to see how courts around the country will apply this new legal standard, the legal standard applied by the Sixth Circuit Court of Appeals (controlling in Ohio) of “meaningful benefit” has not changed and is similar to “progress appropriate in light of the child’s circumstances.” Ohio school districts should likely not see a significant change in their IEPs and services.
Ohio school districts should, however, take away additional learning opportunities from this recent Endrew F. decision:
- Review IEPs to ensure that each is reasonably calculated to enable the student to make appropriate progress in light of the student’s circumstances.
- IEPs should change from year to year as the student changes, learns and grows.
- IEPs should be specifically tailored to the student’s needs and geared for progress.
- Goals should be measurable annually, reflecting appropriate achievements for the student given his/her unique situation.
- IEP teams should be reminded that that behavior management can play an incredibly important role in providing FAPE to students.
- When a student’s behaviors are so severe that they impede progress toward IEP goals, the behaviors should be addressed through timely functional behavior assessments, behavior intervention plans, and, when appropriate, behavior goals.
Endrew F. v. Douglas Cty. Sch. Dist. RE-1, No. 12-cv-2620, 2018 WL 828019 (D. Colo. Feb. 12, 2018).
On February 12, 2018, BuzzFeed News issued an article detailing an interview with U.S. Department of Education (USDOE) officials wherein the USDOE spokesperson outlined the department’s policy on how it would handle transgender student complaints. The details of this article, and statements made by the USDOE spokesperson, were later confirmed by NPR’s Education News Desk. (Please note that although BuzzFeed is not typically a news source for Ennis Britton, the details of the interview and the fact that the details were confirmed by another news source renders this information useful and informative.)
Essentially, the USDOE spokesperson has said that the USDOE will not investigate or take action on any complaints filed by transgender students who are banned from restrooms that match their gender identity. If the complaint alleges that the transgender student has been bullied, harassed, or punished due to his or her gender nonconformity, the USDOE will investigate and possibly take action against a school district.
Substance of Complaint
|Alleges harassment, bullying, or punishment for failing to conform to sex-based stereotypes
||Will be accepted and possibly investigated by the USDOE
|Alleges transgender student was denied access to accommodations such as restrooms and locker rooms
||Will not be accepted by the USDOE
The USDOE has been noticeably silent on issues dealing with transgender students since it withdrew the May 13, 2016, Dear Colleague Letter on transgender students on February 22, 2017. The withdrawal letter can be found here. This recent interview with the USDOE spokesperson does nothing other than lay out how the USDOE will handle complaints from transgender students. This does not mean that transgender students can never bring a claim for discrimination based on their gender identity or their failure to conform to sex-based stereotypes, but it does mean that such claims will be filed in the courts as opposed to the USDOE.
This is a rather strange parsing for the USDOE and a fine line to walk in terms of what will be classified as bullying, harassment, and punishment. (See the Seventh Circuit Court case discussed below.) Districts need to be aware that if a student claims that he or she has been bullied, harassed, or punished because of being transgender or because of failure to conform to sex-based stereotypes, such a complaint must be processed and investigated pursuant to the school district’s anti-discrimination policies. Failure to do so or to take such complaints seriously could result in complaints filed with and investigated by the USDOE.
The remaining issue is accommodations – specifically, bathroom and changing/locker room access. The USDOE’s statement has made clear that this battle will occur in courts around the country as opposed to the USDOE. Therefore, it is important to see where the courts’ decisions are falling with respect to this issue around the country.
Remember, the U.S. Supreme Court canceled oral arguments in G.G. v. Gloucester County School Board, 82 F.3d 709 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (U.S. 2017), remanded, 869 F.3d 286 (4th Cir. 2017), after the U.S. Departments of Education and Justice revoked the May 13, 2016, guidance from the previous administration. Based on the rescission, the U.S. Supreme Court remanded the case back down to the Fourth Circuit Court of Appeals to be reconsidered. The student in that case graduated in June 2017 and has since withdrawn his motion for a preliminary injunction and filed an amended complaint for nominal damages. The former student seeks a declaration that the school board violated his rights under Title IX and the Equal Protection Clause, as well as a permanent injunction preventing the school board from excluding him from using the restrooms when he is on school grounds.
In December 2016, the Sixth Circuit Court of Appeals, relying on the now-rescinded advice, agreed with a lower court decision from the United States District Court for the Southern District of Ohio regarding how an Ohio school district treated an eleven-year-old transgender student. The courts found that the eleven-year-old student had a strong likelihood of success in her claims against the Ohio school district and therefore should be allowed to use the school restrooms that correspond to her gender identity and otherwise be treated like other female students during the pendency of the lawsuit. However, please note although these courts have great impact and control in Ohio, they relied on the now-rescinded guidance from the USDOE, and how these courts will rule on the same issue is uncertain now that the guidance has been rescinded. Further, this case still remains to be fully and finally litigated; both the Southern District of Ohio and the Sixth Circuit ruled only on motions for an injunction; they have not yet ruled on the substantive issues at hand. This case is still pending.
Additionally, although not controlling in Ohio, the Seventh Circuit Court of Appeals issued a decision in May 2017 (after the USDOE rescinded its previous guidance) that may be informative both in Ohio and around the country. The Seventh Circuit Court found that a school district was sex stereotyping a transgender student when it required the transgender male student to use the girls’ restroom or a private restroom. In its decision, the court held that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX” (emphasis added). The school district filed a petition for a writ of certiorari with the U.S. Supreme Court requesting that the Court overturn the lower court’s decision. The U.S. Supreme Court granted this petition; however, the parties have since settled their dispute, agreeing on a payment of $800,000 to the student (and presumably the attorneys for fees), as well as permission for the student to use the men’s restroom if he returns to the district as an alumnus (the student graduated and no longer would be in daily attendance). As a result, although the U.S. Supreme Court will not be ruling on this case, the Seventh Circuit Court’s decision in favor of accommodating the transgender student stands.
In sum, the “new” information out of the USDOE does not change anything for school districts. The USDOE has simply communicated how it will handle complaints from transgender students. If the complaint deals with accommodations (restrooms, locker rooms, etc.), the USDOE will not accept the cases; but if the complaint has to do with bullying, harassment, or punishment based on transgender status, it will.
Instead, the question of whether and how to provide accommodations to transgender students will be a matter to be litigated through the court system in the years to come. For additional advice on handling requests for accommodations for transgender students or working through complaints of discrimination, please contact an Ennis Britton attorney for assistance.