To Infinity and Beyond: Rediscovering the Potential in Endrew F.

Michael Eig

Rich Weinfeld

In Endrew F. v. Douglas County School District, the U.S. Supreme Court set a new standard for the goals of Individualized Education Programs (IEPs).  We talked with special education attorney Michael J. Eig and advocate Rich Weinfeld about the implementation of Endrew F. and how it redefines a student’s right to an appropriate education.   

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Michael, let’s start with you. As a special education attorney, how big a deal is the Endrew F. decision?
Michael:  Endrew F. is potentially the most important special education decision that a court in the United States has come down with since the law passed in 1975.  It is a real game changer, it you really get into what the Court is saying.  Endrew F. is coming up on its first anniversary on March 22, and it all depends on people understanding it and implementing it.  
In 1982, the Supreme Court interpreted the Individuals with Disabilities Education Act (IDEA) for the first time.  In Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley the Court found that in order to be appropriate, education under the IDEA must be "sufficient to confer some educational benefit" or provide a "basic floor of opportunity.”  In Endrew F.  the Court redefines the Rowley standards; I don’t agree with what some say that it doesn’t change much.   

The Supreme Court states right in the decision that this is a markedly more demanding standard.  And the Court doesn’t just do that if it isn’t important.  We have to remember that Endrew F. was a unanimous decision from the Supreme Court, with the decision written by the Chief Justice.  That in and of itself is important, because when something is that clear, and written as well as it was by Chief Justice Roberts, we should take it very seriously.

What about this expectation of “meaningful progress”?  Did the Court define that?
Michael:  Yes and no.  Most lawyers answer questions that way, I’m afraid.  “Meaningful” means different things to different people.  “Progress” is the important word here.  In the early 1980’s, some courts used terms like “meaningful benefit” and it is hard to measure.  Obviously, it’s a very subjective standard.  By rephrasing it as “progress” we can really translate it into something that is measured.  Because the Court said, they wouldn’t pass the law if they weren’t going to shoot for progress.  When IEP teams sit down to measure goals, progress can be measured by a reading level, or by a student doing something 4 out of 6 times.  You can measure “progress” much more than you can measure “benefit.”  We just need more people to understand that.  

Now on to the application of Endrew F., how does this decision impact IEP meetings?
Rich:  We have clear guidance from the Supreme Court that we are to look at each unique individual, and we have the ability to develop an understanding of both their challenges and their strengths and write measurable goals that are in line with what they are capable of achieving according to their potential. And a hallmark of this case, from an advocate’s view, is that we must expect measurable progress for each child. It’s important to call upon school officials to carefully deliberate about what goes into an IEP, to have cogent reasons for their decisions, and to treat parents as full partners in the process.

You mentioned potential, how important is that word in the Endrew F. decision?
Rich:  Advocates and educators have been talking about helping kids realize their potential since I started teaching 43 years ago, and probably before.  But it always sounded a little “pie in the sky” or an unattainable goal.  And schools had guidance from previous Supreme Court decisions that they really weren’t expected to give these students the best education, they were just tasked with giving an “appropriate education.”  But, now the Supreme Court has used the word “potential.”  And that was very important to me as an advocate.  The Supreme Court said, in order to understand if a child is making meaningful progress, you have to understand the child’s potential.  So, the progress that is expected of each child is individualized and it is related to their unique potential.

Let’s talk about these IEP goals. The Court says they need to be “reasonably ambitious.” How should schools and parents approach this standard?
Rich:  The first step in setting goals is to have very carefully crafted present levels. We need to know where the child is functioning right now, both in terms of their strengths and their challenges. We establish present levels by, first, having very good and detailed formal assessments. We gather data from teachers in terms of what is happening in the classroom and how the child is doing on school-based assessments, and we gather data from parents about what the child can create when the teacher is not there and they are working on their own. If we do that right, and we pull all that data together, we get a good idea of where the child is presently functioning. And then secondly, we know what the child’s potential is, and then we can set a reasonably ambitious goal.  And then when we are creating an annual goal, we can project where should we reasonably expect the child to be in a year’s time.   

Rich, you’ve said if IEP goals are just copied over year after year, they show a lack of progress.
Rich:  Exactly.  That was really the issue with Endrew F., that schools were repeating the same or similar goals, year after year.  And that is an indication that nothing or very little was being achieved, because the same goal was needed the next year.  So, if you are seeing the same goals on the IEP two years in a row, it is an indication that your child is not achieving or the goal is not right.  Someone needs to take a careful look to write a goal that is really centered with the new present levels your child has achieved at the end of the previous year.

Parents should understand where the goal came from, and it comes exactly from the present levels.  So, for example, knowing that a child is reading on a second-grade level in terms of their decoding, then we know that next year, we want them to progress to a third-grade level and based on their potential, maybe we set that goal even higher.  But those goals should be a meaningful target and it should be understandable to the parents.

The other part of the goal that is very important are the “givens” of the goal. Say for example, “We know that kids can learn to decode words if given evidence-based interventions, provided with fidelity.”  It’s very important to write those type of words right in the goal so we know what is to happen.  And the parents can then reasonably expect the schools to tell them during the year, what is the methodology, how do they know it’s evidence-based, how it is being delivered with fidelity, in terms of how often and for how much time.  Without that kind of specific language in the goal, parents don’t have much to stand on in terms of knowing what exactly is being done in school.     
 
Okay, guys, looking ahead, does Endrew F. give families with special education students what we need, or is there more to be done?
Rich:  It gives us a direction and it gives us a lot of optimism for the future in terms of the language in the decision, using words like “potential” and “unique child” and stressing the importance of parent involvement.  It is very clear about the direction we are heading.  Now we want to see how it is interpreted.  We want to see how individual courts will interpret it, how school districts will interpret it, and that’s just starting.  Initially we heard some school districts say, ‘Oh there’s nothing really new here.”  But we think there’s a lot new in this decision, and it really changes the standard.  And we’re starting to see court decisions that support that.

Michael:  It moves the ball down the field. It is, to use that word again, progress.  More certainly has to done for sure.  First off, people need to really understand the Endrew F. decision.  People need to get into the mindset of what the Court is doing.  The important battle ground in the IDEA now, is not the court, or the due process hearing, it’s back to the IEP table.  The IEP meetings are more important than ever.   That’s where people are going to have to understand what this decision calls for.  

Parents should pick up certain words out of the decision.  Besides talking about “progress” – which is a whole new way of looking at it, the other words out of Endrew F. are words like “challenging” and “ambitious.”   Those are words that the Supreme Court now uses to define the kinds of goals that people with an educational disability should be given.  We never had that before, and it sets a higher standard.   The school system side of the IEP table, if they didn’t get it themselves, should be reminded by the parents, “The Supreme Court says we should be ambitious, and that goals should be challenging.  How are these IEP goals challenging my child?”

Last question.  How do parents know when they need an advocate or a special education attorney?  
Michael:  When you are coming away from a meeting at the school or certainly an IEP meeting, and you just don’t feel good about the education that your son or your daughter is about to get, based on what you just heard, you should talk to somebody.  It becomes pretty clear.  You are talking about the most important thing that a parent does, which is raise their children.  I’d also say, if you feel like you need someone’s help, don’t wait. You never get those days back.  

Rich:  There are probably two points that may dissuade a parent from bringing in an advocate.  First, parents may be afraid that if they bring someone with them to the meeting, it may cause discord between the parent and school. It doesn’t have to be that way.  Our focus is on collaboration.  We think we can achieve great things for kids while still being respectful.  And secondly, to be frank, parents don’t bring advocates because of the expense.  But, we are committed to serving everybody, and we have a sliding scale so that no parent needs to feel that they can’t have a professional with them to help articulate the needs of their child.

We believe special education consultants or advocates are really valuable at any time during the process.  They can help communicate the child’s needs, define what should be in the goals and present levels, and outline what should be in the accommodations.  And also, an advocate can help remind the schools of these new Supreme Court standards that we’re talking about and making sure the IEP teams are cognizant of setting the bar higher.  It’s all about realizing the unique potential of the child.

Attorney Michael j. Eig is the founder and owner of the firm Michael J. Eig and Associates, PC. Special education advocate Rich Weinfeld is the director and founder of the Weinfeld Education Group, LLC.

The two experts are frequent collaborators, including the presentation “To Infinity and Beyond: The Rediscovery of Potential in Endrew F.” at the 2018 Diamonds in the Rough Conference.