The Failure-to-Implement the IEP Dimension of FAPE under the IDEA: The Current Approaches for Each Circuit

The central obligation under the Individuals with Disabilities Education Act (IDEA) is the provision of a free appropriate public education (FAPE) to each eligible student.1 Thus far, the courts and, in part, Congress have evolved three successive dimensions, or “faces,” of FAPE: procedural, substantive, and implementation.2 The retrospective remedies under the IDEA, which are tuition reimbursement and compensatory education, require denial of FAPE under one or more of these faces of FAPE.3To fill a gap in the legal literature,4 this brief article provides a current tabulation of the case law in each jurisdiction for the competing approaches for the leading form of the implementation dimension—failure to implement (FTI) the IEP.5 Unlike the procedural dimension, which started with Board of Education v. Rowley6 and evolved into a two-step adjudicative analysis in the 2004 amendments of the IDEA,7 and the substantive dimension, which also started with Rowley and became refined in Endrew F. v. Douglas County School District,8 FTI has not yet developed into a uniform national standard. Instead, three successive federal appeals court decisions serve as the three-part framework for the currently competing approaches to FTI.In the first of these decisions, Houston Independent School District v. Bobby R.,9 the Fifth Circuit addressed FTI within its particular four-factor analysis for substantive FAPE.10 Specifically, under the third factor, the Fifth Circuit rejected a per se approach, which would only require preponderant proof of more than a de minimis FTI, instead requiring the plaintiff-parent to “demonstrate that the defendant district failed to implement substantial or significant provisions of the IEP.”11 The court prefaced this formulation by concluding that “the significant provisions of the child's IEP were followed and, as a result, he received an educational benefit.”12 Providing a generic term for this approach, the court explained: “This approach affords local agencies some flexibility in implementing IEP's, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit.”13However, the Bobby R. court left three questions unanswered in applying this standard. First, by not generally concluding that the district implemented the significant provisions of the IEP,14 the court did not provide any indication of how to determine whether a particular provision was substantial or significant, including the intended difference between these two terms. Second, for the same reason, the court did not provide any indication how much of a shortfall for a substantial or significant IEP provision is required for a FTI violation. Finally and perhaps most importantly, by concluding that the district in this case did not deny FAPE under the over-arching four-factor test based on the child's actual progress under the fourth factor,15 the court did not make crystal clear whether and, if so, to what extent actual progress was, in effect, a second step of its FTI approach.16In the second decision, Van Duyn v. Baker School District 5J,17 the Ninth Circuit cited with apparent approval the FTI materiality approach of Bobby R. and related dicta in an Eighth Circuit decision,18 but then announced its own variation as follows: “A material failure occurs when there is more than a minor discrepancy between the services that a school provides to a disabled child and the services required by the child's IEP” (emphasis added).19 Moreover, the Ninth Circuit clarified actual progress played a discretionary rather than mandatory role in its FTI materiality approach.20Applied to the facts of the case, which focused on four alleged shortfalls,21 the Ninth Circuit found that only one of them to meet its standard of materiality but the district's compliance with the hearing officer's remedial order had compensated for it in the interim.22 Moreover, the court concluded that actual progress played a limited, contributing role in its determination for two of the other three alleged shortfalls.23 Yet, in neither its formulation nor in its application did the Ninth Circuit provide any specific proportionality as to dividing line of a “minor” deviation other than 50% qualifying as more than minor.24In the third decision, L.J. v. Broward County School District,25 the Eleventh Circuit straddled the fence between the Bobby R. and Van Duyn materiality approaches. After successively referring to the “minor” threshold of Van Duyn and the “substantial or significant” qualifier of Bobby R.,26 the Eleventh Circuit more specifically explained that “courts must consider implementation failures both quantitatively and qualitatively to determine how much was withheld and how important the withheld services were in view of the IEP as a whole.”27 Finally, the Eleventh Circuit specified that “a child's actual educational progress (or lack thereof) can be evidence of the materiality of an implementation failure—but it is not dispositive.”28 Indeed, the court tightened both its role and connection in adding the caution that “reviewing courts should not rely too heavily on actual educational progress, at least where a plaintiff has not tied the lack of progress to a specific implementation failure.”29 Finally, the Eleventh Circuit instructed that “cumulative analysis is . . . built into the materiality standard itself.”30Similar to Bobby R. and Van Duyn, the L.J. court was less than rigorous and specific in its application of its materiality standard. The court neither specified the proportion of withheld services nor the importance of their underlying IEP provisions. Instead, the Eleventh Circuit dismissed some of the alleged “failures” as lacking a specific requirement in the IEP.31 The court disqualified the other “failures” as explainable or attributable to the student's continuing absenteeism despite the school's extensive efforts to facilitate his attendance.32 In doing so, the court limited the role of the progress factor when “another educational impediment—here, repeatedly missing instruction and educational services—readily explains the lack of progress.”33 Similarly, the court rejected the alleged cumulative material effect in this case because “the record suggests that the school is not to blame for the child's extensive absences.”34 Again, questions remain as to application of this hybrid approach, including the relative weighting of the quantitative and qualitative approaches when they do not point in the same direction.35As a result of these three leading decisions, the competing approaches appear to represent two polar positions, one qualitative (Bobby R.) and the other quantitative (Van Duyn),36 and a broad intermediate category that appears to embrace both of them either on a hybrid basis (L.J.) or on an undifferentiated basis.37The Appendix, which consists of a table followed by separate endnotes, canvasses the case law that appear to fit within each of these three approaches for each of the circuits, with the understanding that the boundaries for each approach are thus far blurry rather than bright lines. Moreover, readers should check the citations for their jurisdiction to make sure they are current, complete, and properly placed.Within the Appendix, the following clarifications apply to the purposely brief entries: (1) The major exclusions from coverage are (a) the case law prior to Bobby R.;38 (b) the court decisions that cited one or more of these leading decisions but did not specifically apply FTI;39 (c) the court decisions that did not cite FTI case law but ruled against an FTI claim by finding sufficient implementation without specifically addressing any standard;40 and (d) court rulings concerning FTI under Section 504 rather than under the IDEA.41(2) The abbreviated case entries in the table at the federal appellate level are in the upper row for each circuit, whereas those at the lower court level are in the lower row, and those that are not officially published are in smaller font.42(3) The abbreviated case entries in the table are underlined if the plaintiff-parents were successful for their FTI claims.43(4) The bracketed case entries in the table designate decisions that appear to be superseded by a subsequent decision cited for the same circuit.(5) The parenthetical entries for the full citations in the endnotes refer to “actual progress” in its broadest sense and role.44Review of the Appendix reveals several findings. First, the majority of the circuits appears to be in the intermediate category, with most of them—unlike L.J.—thus far without a clearly differentiated decision at the appellate level. Second, the Fifth and Ninth Circuits respectively account for a long line of subsequent decisions, but they do not squarely address the aforementioned open questions under Bobby R. and Van Duyn, respectively.45 Third, the First and D.C. Circuits also account for a sizeable segment of decisions but divided between two categories and with none at the appellate level. Fourth, as differentiated by underlined entries, the outcomes trend thus far, like in the three leading decisions, is skewed in favor of school districts.46 Finally, subject to a case reaching the Supreme Court for a uniform approach, the case law has evolved beyond the seminal stage but still is far from settled not only for the circuits with negligible or split case law but also for the remaining application gaps in the other circuits.47