What Impact Does the Supreme Court's Endrew F. Decision Have on School Transportation?

Having lived most of my adult life in the rarified air of Colorado, I am still not surprised that the Supreme Court, ruling on March 22 in the Endrew F. case, brought special educators and related services personnel “down to earth.”  In fact, despite my retirement, the opinion in what advocates have called “the most significant special-education issue to reach the high court in three decades,” challenged me to think about practical implications for school transportation providers.  I had predicted that if the Supremes “raised the bar” of FAPE (Free Appropriate Public Education, the cornerstone of federal law’s requirements for students with disabilities), as many predicted they would, it would not necessarily mean frantic revamping of IEP provisions relating to school transportation.  In an effort to calm transportation professionals’ nerves now that any thought that offering “de minimis” educational benefits are enough has been tossed out of the window, I practically begged to write this article.

BurnsPeggyPeggy A. BurnsThe Facts

Endrew was diagnosed with autism at age two.  He attended school in Douglas County School District in Colorado from preschool through fourth grade.  Despite possessing a number of strengths on which teachers commented through these years, Endrew’s disruptive behavior “inhibited his ability to access learning in the classroom.”  According to the U.S. Supreme Court’s opinion, “Endrew would scream in class, climb over furniture and other students, and occasionally run away from school.  He was afflicted by severe fears of commonplace things like flies, spills, and public restrooms.”  His parents complained that they had seen no improvement in his academic and functional progress, and after the school district presented them with a proposed fifth grade IEP that, like its predecessors, in the parents’ view, offered little in the way of new strategies for behavior management or approaches to making meaningful progress towards goals, his parents removed Endrew from public school.  They enrolled him in a private school specializing in educating students with autism, where he improved considerably.  “The school developed a ‘behavioral intervention plan’ that identified Endrew’s most problematic behaviors and set out particular strategies for addressing them.  [The school] also added heft to Endrew’s academic goals.  Within months, Endrew’s behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school.” His parents sought reimbursement for his tuition at the private school on the basis that the school district had not provided the boy a FAPE in a timely environment prior to his enrollment at the private school.

The district prevailed at each level of administrative and judicial proceeding based on its claim that the Supremes’ opinion in the 1982 case Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley stood for the proposition that “a child’s IEP is adequate as long as it is calculated to confer an ‘educational benefit [that is] merely. . .more than de minimis.”  The Tenth Circuit Court of Appeals had agreed with the district that Endrew’s IEP had been “reasonably calculated to enable [him] to make some progress.”  

What did IDEA require before Endrew F.?  The FAPE standard defined by IDEA requires provision of  “special education” and “related services” “to meet the unique needs” of a child with a disability via an “individualized education program” – IEP – “reasonably calculated to enable the child to receive educational benefits.” In the Rowley case, the court noted that IDEA requires States to “educate a wide spectrum” of children with disabilities, and declined “to establish any one test for determining the adequacy of educational benefits” to which all children with disabilities covered by IDEA were entitled.  The result has been a split among the eleven circuit courts across the country as to the level of benefit required.

The Rowley Court had observed that the definition of FAPE set forth in federal law was “cryptic rather than. . .comprehensive.”  What was not mysterious however, and what has been echoed most recently by attorney Julie Weatherly at TSD, by Dr. Linda Bluth at countless conferences and articles, and ad nauseum by yours truly throughout my 20 years of working with school transportation professionals, was that appropriate transportation for a child with a disability who requires transportation in order to receive educational benefits – the definition of a “related service” – must be decided on a case-by-case basis.  I would argue that “case-by-case basis” is another way of re-stating the standard enunciated by Endrew F. when paraphrased to fit school transportation : The IDEA requires that transportation be reasonably calculated to enable a child to access his IEP goals in a manner appropriate in light of the child’s circumstances.”  

What was transportation’s role before Endrew F.?  My analysis of an IEP team’s obligation to develop a child’s transportation program pre-Endrew F. is that it was bound to ask: (1) Does the proposal for transportation create a ride which will interfere with, have no impact on, or promote the educational benefits which a child was promised in his IEP? (2) Is the child being transported in a manner as much like that offered to a child without a disability as is appropriate for that child, given his age and disability, and its impact on transportation – in other words, given his circumstances; (3) Does the manner of transportation align well with IDEA’s focus on preparation for post-K-12 living, and/or contemplate a progression in transportation method that is reasonably calculated to move the child toward increased skill and functional ability during the public school years? What does this mean. . .What is the “so-what” of the analysis?

The child must be transported to school on time and ready to learn.

Any problems that arise at any point from pick-up to drop-off that would tend to interfere with the child’s ability to make progress towards IEP goals must be addressed in ways that are reasonably calculated to end those problems.

Any special modification to the transportation method or timing available to a child with a disability (i.e., not offered to a child without a disability) must be made only to the extent it is necessary to alleviate the impact of that disability on transportation.

The child must be transported in the least restrictive environment (that is, in the manner available to a child without disability) to the extent appropriate to meet his needs.

The child’s transportation goals should challenge him as he progresses through the school years to the extent appropriate to his circumstances, and allow the child, ultimately, to access those transportation methods must likely to align with the likely components of his life after school.

What is transportation’s role after Endrew F.?  All of the above.  In addition, the Court has spelled out a best practice I’ve talked about for 20 years: There should be a clear and articulable basis for a school transportation professional’s input into the transportation portion of the child’s IEP.  In other words, it’s always been true that you might be called upon to explain the “why” of your recommendations and decisions.  The Endrew F. court has made this explicit:  If a dispute reaches court, “a reviewing court may fairly expect [school] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”  I suggest to you that transportation “authorities” must be able to vouch for the fact that transportation decisions have been made by the IEP team in a manner that in no way hinders the child from making such progress, and, in fact supports the provision of educational benefits by getting children to school on time and ready to learn.

What are the fiscal impacts for transportation post Endrew F.? Arguably Endrew F. will have little or no negative fiscal impact, unless the transportation method, schedule, staff, or environment has, up until now, negatively impacted the child’s opportunity to achieve the educational benefit for which this child’s IEP has been uniquely tailored, or, unnecessarily segregated him from “regular” transportation.  And, in fact, since “every child should have the chance to meet challenging objectives,” in some cases, door-to-door pick-up may eventually give way to bus stop pick-up with the help of travel training in appropriate situations; youth involved in transition programs may, as appropriate, be taught bus skills to enable them to access public transportation to work sites rather than yellow school buses; and a student who is needlessly restricted to a small capacity bus because of behavioral issues may benefit from development of behavior intervention plan for improvement of bus behavior that allows the student to ride with his non-disabled peers.

What happens now? In its Opinion, the justices sent the case back to the 10th Circuit for it to apply a tougher standard – did the school district offer an educational program reasonably calculated to enable Endrew to make progress appropriate in light of his circumstances?  Given his relative improvement in the private school, and if the lower court agrees with the parents that the IEP offered by the school district offered little or no change from previous ineffective IEPs, the parents are likely to prevail.

In your world, post-Endrew F., in helping to develop IEP’s, and/or in response to a parental challenge, you must truly consider the child’s needs and abilities on a case-by-case basis, and present a proposal that, in fact, is the product of the very analysis that, I believe, you were always required to make.  If transportation just isn’t working for the child, and, despite push back from parents, and, perhaps educators, the IEP team repeatedly offers a plan for addressing transportation-related issues that do not differ meaningfully from previous ineffective plans, Endrew F. says, “No more.  Change it.”  The Court’s discussion of the IEP process emphasizes parental involvement and the expertise of school authorities.  Consider the parent’s concerns for the child, while continuing to reject transportation requests based only on parental convenience.  Be well-versed in transportation options available given this child’s needs and challenges, based on his disability and its impact on the ride.  One thing Endrew F. is sure to do is light a fire under parents of children with disabilities to insist on more for their children.  Be able to demonstrate that you’ve provided a transportation program consistent with individualized decision-making, or, if you have not, be prepared to review that decision in the manner you should have determined it in the first place.  

I don’t mean to suggest in any way, shape, or form, however, that the road ahead is clear.  As San Francisco attorney Gregory R. Rolen opined prior to the Court’s decision, “an all-inclusive, ever-elusive, bright-line test will remain out of reach.”  But while argument will continue, no doubt, as to the amount of progress and the meaning of appropriate, the Court’s opinion continues to insist on individualized decision-making that looks at the whole child, and both where he’s been and where he’s going as impacted by his disability, and, perhaps, even more.


 Peggy A. Burns is Tenured Faculty, Emeritus of the TSD Conference as well as former school district in-house counsel, editor of Legal Routes, and a consultant on student transportation compliance issues. She has written numerous articles for School Transportation News and is a past contributing editor of the magazine.

Reprinted from the May 2017 issue of School Transportation News magazine.

Last modified onWednesday, 03 May 2017 07:57