Endrew F. v. Douglas County School District RE-1: Supreme Court Rejects 10th Circuit's More Than De Minimis IEP Benefits Interpretation

Whether a child has been integrated fully into a classroom setting or not, the Supreme Court has recently determined that a child under an Individualized Education Plan (IEP) required under the Individuals with Disabilities Education Act of 1990 (IDEA) must receive a education that is tailored to a child’s unique needs and seeks to enable the child to make educational progress appropriate in light of the child’s particular circumstances. The Court's opinion in Endrew F. v. Douglas County School District RE-1, 580 U.S. __ (2017), clarifies  an earlier decision by the High Court in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley,  458 U. S. 176 (1982), held that an IEP need only be "reasonably calculated to enable the child to receive educational benefits." This Rowley standard lent itself to a great deal of uncertainty as evidenced by the earlier decision, where the 10th Circuits held that the Rowley standard, when applied to a child not integrated fully in a classroom, could be satisfied by a demonstration of merely more than de minimis educational progress. See Endrew F. v. Douglas County School District RE-1, 798 F. 3d 1329, 1336 (CA10 2015). Vacating and remanding the 10th Circuit's decision, the Supreme Court emphasized that while the IDEA cannot promise any particular educational outcome, it must nevertheless enable the child to achieve a higher educational outcome that is appropriate to the child's particular life circumstances. Concretely, this means that a disabled child under an IEP who is integrated in a classroom should be equipped to progress through the curriculum just like other children in the classroom. For a child who is not able to be integrated into the classroom, the child's IEP need not aim for grade-level advancement but must nonetheless provide an  educational program must "appropriately ambitious in light of [the child's] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."

In re J.T: Court Reports Alone Are Not Substantive Evidence

If it has been said before, it has been said over a two or more times by the North Carolina Court of Appeals: DSS and GAL court reports can do a lot of things but without more, they cannot be the principle basis by which a court acts, whether it is conducting an adjudication, a disposition, a review or permanency planning hearing. Back in 2004, the Court of Appeals reviewed a disastrous case, In re D.L., which in principal consisted of a district court judge engaging in a protracted argument with a Respondent Mother In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004).


As arguments with judges typically do, this one ended badly for the respondent: the judge ended the hearing by receiving the DSS report into evidence and then proceeded to enter an order, without affording the DSS to supplement the report with additional testimony. The Court of Appeals reversed, noting that the trial court's findings of fact were based only on court reports, prior orders and the argument of counsel, none of which qualified standing alone as competent substantive evidence. A largely indistinguishable situation again resulted in the reversal in 2010 with the case of  In re D.Y., 202 N.C. App. 140, 688 S.E.2d 91 (2010).


The most recent incarnation of these facts has arisen out of Orange County (In re. J.T. COA 16-774) (February 21, 2017) where, as before, no oral testimony was received, not even a social worker to take the stand and adopt the DSS report into testimony, nor stipulations of all the parties that might have provided a basis for the court to receive the report as substantive evidence. In addition, the district court, which sought to terminate reunification efforts, failed to follow the statutory requirements found at N.C. Gen. Stat. §§ 7B-906.1 and 906.2 (2015) cease such reunification efforts. As a result, the district court's order was vacated and remanded.


The moral of the story remains the same: in every hearing where all parties do not stipulate to set and necessary facts, there must be oral testimony to support the court's adoption of particular facts (which coincidentally happen to appear in a DSS and/or GAL court report). This standard is satisfied even when a competent witness (i.e. social worker or GAL volunteer) takes the stand, and merely adopts the contents of their court report in full into their testimony. To do otherwise is to court reversal or in the alternative, the Court of Appeals vacating the order of the district court and remanding the same.