50 Children’s Legal Rights Journal [Vol. 38: 1 2018]
show the reader how the current circuit split has caused problems at the IEP implementation stage.
Part II of this paper will give an overview of the types of disabilities that are covered under the
IDEA as well as the legislative and judicial history of the IDEA. Part III of this paper will discuss
the circuit split and the recent Supreme Court decision in Endrew F. v. Douglas County School
District. 6 Then, reasons why solving the circuit split through the judicial process does not solve
the application problem will be addressed in Part IV. Finally, Part V will discuss possible solutions
for solving this problem, and Part VI will conclude.
In San Antonio v. Rodriguez, the United States Supreme Court held that there is no
Constitutional right to education. 7 While Rodriguez was a case about the state’s use of property
tax to fund public schools, it is one of the seminal cases cited as the reason there is no fundamental
right to a public education. Interestingly, just a year prior to Rodriguez, the Court recognized in
Wisconsin v. Yoder that states have a legitimate interest in the education of their children. 8 Thus,
any right to education would come from legislatures, and the responsibility of educating our youth
rested in the states’ hands. 9 Education tailored to the individual needs of the child was traditionally
only for the upper echelons of society. 10 It was not until the Civil Rights movement of the 1960s
that Americans started to push for education for all students. 11 In Brown v. Board of Education,
Chief Justice Warren said, "[I]t is doubtful that any child may reasonably be expected to succeed
in life if he is denied the opportunity of an education." 12 Finally, we had a nation that cared about
the education of our society, at least in the abstract.
A. Disabilities and Special Education
As of 2017, there were over six million students with disabilities recognized under the
IDEA. 13 The classification of “individuals with disabilities” is an umbrella phrase encompassing
disabilities that range from severe physical impairments to behavioral and developmental
6 See generally Endrew F., 137 S. Ct. 988.
7 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (holding that “[p]ublic education is not a ‘right’
granted to individuals by the Constitution”).
8 Margaret Condit, Remember the IDEA: A Call for Courts to Apply a Piecemeal Approach to Transition Litigation,
38 T. JEFFERSON L. REV. 6, 13 (2016) (citing Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); see also Epperson v.
Arkansas, 393 U.S. 97, 104 (1968). While invalidating an anti-evolution teaching statute on First Amendment grounds,
the Court notes that “by and large, public education in our Nation is committed to the control of state and local
9 Condit, supra note 8, at 13; see generally U.S. Const. amend. X (granting states sovereign powers in certain areas).
10 See Dep’t of Educ., From There to Here: The Road to Reform of American High Schools at 1,
https://www2.ed.gov/about/offices/list/ovae/pi/hsinit/papers/history.pdf (last visited Mar. 8, 2017) (“Until the 20th
century, secondary education was a small-scale experience, largely reserved for the privileged, rather than the nearly
universal democratic institution of today”); see also generally American Public Education: An Origin Story, EDUC.
NEWS (Apr. 16, 2013), http://www.educationnews.org/education-policy-and-politics/american-public-education-an-origin-story.
11 Condit, supra note 8, at 14–15.
12 Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
13 Idaho State Dep’t of Educ., Identification of Children with Disabilities (2017),