60 Children’s Legal Rights Journal [Vol. 38: 1 2018]
Reconsider our hypothetical of Ella from page three. What would happen if her mother
pursued a cause of action against the school district concerning Ella’s IEP? Based on current
precedent, it would entirely depend on which circuit court had jurisdiction over Ella’s case. This
is devastating because it means that children with disabilities are receiving different levels of
education across our nation. This also means that teachers and school administrations are left in
limbo, spending their time trying to get a grasp of their circuit’s current interpretations, instead of
spending their time doing what they were trained to do: educating our nation’s children.
E. Endrew F. v. Douglas County School District RE- 1
All of this ambiguity finally made its way to the Supreme Court through Endrew F. v.
Douglas County School.137 The Tenth Circuit called the difference between “some” and
“meaningful” “fleeting.”138 However, the Tenth Circuit explicitly rejected the “meaningful
benefit” standard because the standard the court had always applied was the “some benefit”
standard, which the Tenth Circuit believed the Supreme Court adopted in Rowley.139 Because the
circuits were in complete shambles as to which standard should be applied, the Supreme Court
agreed to hear oral arguments on this case.140
On January 11, 2017, the Supreme Court heard oral arguments on Endrew.141 The Solicitor
General argued that an IEP should aim for “significant educational progress.”142 He went further
to argue that “significant” and “meaningful” are synonymous, as well as the word “progress.”143
Ultimately, he urged the courts to use the word “appropriate,” and to stay away from the term
“meaningful,” because it had a lot of baggage in various courts of appeals.144 The Solicitor General
argued for the standard to be worded as “reasonably calculated to make progress that is appropriate
in light of the child’s circumstances.”145 In response to his arguments, Justice Kagan made a joke
about the Solicitor General asking the Court to come up with their own word to be applied by
lower courts in different ways, essentially the exact problem we are facing now.146
Petitioners argued for an “equal educational opportunity” standard;147 however, this
standard was previously rejected by the Rowley Court as being an “unworkable standard requiring
impossible measurements and comparisons.”148 The Rowley Court went further to explain that the
term “equal” does not appropriately capture the complex phrase, “free appropriate public
137 See generally Endrew F. v. Douglas Cnty. Sch. Dist. RE- 1, 137 S. Ct. 29, No. 15-827 (argued Jan. 11, 2017).
138 Id. at 1340.
140 Christina Samuels, U.S. Supreme Court to Decide Level of ‘Benefit’ Special Education Must Provide, EDUC. WEEK
(Sept. 29, 2016), http://blogs.edweek.org/edweek/speced/2016/09/court_special_education_benefit_case.html.
141 See Transcript, supra note 5.
142 Id. at 20; see also Amy Howe, Argument Analysis: Justices Grapple with Proper Standard for Measuring
Educational Benefits for Children with Disabilities, SCOTUS BLOG (Jan. 11, 2017),
143 Transcript, supra note 5, at 20.
144 Id. at 21.
145 Id. at 24.
146 Id. at 21.
147 Id. at 4; see also Howe, supra note 142 (Petitioner argued for the program to be “reasonably calculated’ to provide
[the child] with educational opportunities that are substantially related equal to those offered to other students”).
148 Rowley, 458 U.S. at 198.