Date: 08-25-2015

Case Style: Endrew F. v. Douglas County School District RE-1

Case Number: 14-1417

Judge: Tymkovich

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Jack D. Robinson, Spies, Powers & Robinson, P.C., Denver, Colorado, for
Appellants.

Defendant's Attorney: Robert S. Ross, Jr., Douglas County School District Re-1, Castle Rock, Colorado,
for Appellee.

Description: Federal law requires public schools to provide students with disabilities a
free and appropriate education. If a school cannot meet the educational needs of
a disabled student, the student’s parents can place the child in private school and
seek reimbursement of tuition and related expenses. In this case, the parents of
an autistic child withdrew him from the Douglas County School District because
they believed his educational progress was inadequate. They later sought
reimbursement that the District challenged. The District’s denial of
reimbursement was upheld after a due process hearing in administrative court, and
that determination was also upheld in federal district court.
We affirm. We find sufficient support in the record to affirm the findings
of the administrative law judge that the child received some educational benefit
while in the District’s care and that is enough to satisfy the District’s obligation
to provide a free appropriate public education. Accordingly, under Tenth Circuit
precedent, the District did not violate the Individuals with Disabilities Education
Act, 20 U.S.C. §§ 1400 et seq. (IDEA), and is not required to reimburse the cost
of the student’s private-school education.
I. Background
The IDEA makes federal education funding conditional on the states’
provision of a “free appropriate public education” (FAPE) to all children with
disabilities. See 20 U.S.C. § 1412(a)(1)(A). The central mechanism by which the
Act ensures a FAPE for each child is the development and implementation of an
individualized education program (IEP). See id. § 1401(9) (defining a FAPE as
“special education and related services that . . . are provided in conformity with
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the [IEP] required under section 1414(d)”); Sch. Comm. of Burlington v. Dep’t of
Educ., 471 U.S. 359, 368 (1985) (“The modus operandi of the Act is the . . .
[IEP].” (internal quotation marks omitted)). An IEP is “a detailed written
document which describes the student’s educational goals for an academic year
and establishes a plan to achieve those goals.” Jefferson Cty. Sch. Dist. R-1 v.
Elizabeth E. ex rel. Roxanne B., 702 F.3d 1227, 1230 (10th Cir. 2012). The Act
put in place detailed procedural requirements by which a child’s IEP must be
created and maintained. See 20 U.S.C. § 1414(d)(1)(A)(i). Beyond the procedure
required, however, Congress “left the content of th[e] programs entirely to local
educators and parents.” Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P., 540
F.3d 1143, 1151 (10th Cir. 2008). The Act does not prescribe the substantive
level of achievement required for an appropriate education. Rather, the
substantive adequacy of an IEP is determined by a standard articulated by the
Supreme Court: the IEP must be “reasonably calculated to enable the child to
receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).
The plaintiff-appellant, Endrew F. (Drew), was diagnosed with autism at
the age of two and with attention deficit/hyperactivity disorder a year after that.
Drew’s autism affects his cognitive functioning, language and reading skills, and
his social and adaptive abilities. Drew attended Douglas County schools from
preschool through fourth grade. During that time, he received special-education
services, including IEPs tailored to meet his unique needs.
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At the conclusion of an especially rocky fourth-grade year, Drew’s parents,
Joseph and Jennifer F., decided Drew was not making any meaningful progress
and rejected the IEP proposed by the District for fifth grade. As a result, they
withdrew him from the District and instead enrolled him at Firefly Autism House,
a private school that specializes in educating autistic children. The parents then
turned to the District for reimbursement of Drew’s private-school tuition and
related expenses. See 20 U.S.C. § 1412(a)(10)(C)(ii). They contended the
reimbursement was due because the District had failed to provide Drew with a
FAPE.
After a three-day administrative due process hearing, see id. § 1415(f), an
administrative law judge (ALJ) denied the request finding the District had
provided Drew with a FAPE. The parents next filed suit in federal court for
judicial review of the ALJ’s decision. See id. § 1415(i)(2)(A). The district court
affirmed.
II. Discussion
Drew’s parents contend they are entitled to tuition reimbursement under the
IDEA and that the ALJ and the district court failed to recognize the District’s
procedural and substantive violations of the Act. After describing the tuition
reimbursement provisions of the IDEA, we consider the District’s denial of
reimbursement and ask whether the procedural and substantive violations alleged
by the parents resulted in the denial of a FAPE.
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A. Tuition Reimbursement Under the IDEA
The IDEA allows parents who believe their children are not receiving a
FAPE in state schools an option. Those parents may pull their children from
public school, enroll them in private school, and then request reimbursement from
the school district. Id. § 1412(a)(10)(C)(ii); see also Florence Cty. Sch. Dist.
Four v. Carter, 510 U.S. 7, 12–13 (1993); Burlington, 471 U.S. at 370.1
Parents who take unilateral action, however, “‘do so at their own financial
risk.’” Jefferson Cty., 702 F.3d at 1232 (quoting Florence Cty., 510 U.S. at 15).
If a school district denies the parents’ request for reimbursement, a court may
order reimbursement only if (1) “‘the public placement violated IDEA’” and
(2) “‘the private school placement was proper under the Act.’” Id. (quoting
Florence Cnty., 510 U.S. at 15). There is no contention here that Drew’s
1 Section 1412 provides:
If the parents of a child with a disability, who previously
received special education and related services under the
authority of a public agency, enroll the child in a private
elementary school or secondary school without the consent
of or referral by the public agency, a court or a hearing
officer may require the agency to reimburse the parents for
the cost of that enrollment if the court or hearing officer
finds that the agency had not made a [FAPE] available to
the child in a timely manner prior to that enrollment.
20 U.S.C. § 1412(10)(C)(ii); see also 34 C.F.R. § 300.148(c).
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placement at Firefly is not permissible under the Act. The only issue is whether
the District violated the IDEA by failing to provide Drew with a FAPE.2
In determining whether a school district provided a student with a FAPE,
we follow a two-step analysis and ask (1) whether the district complied with the
Act’s procedural requirements, and (2) whether the IEP developed by those
procedures is substantively adequate such that it is “reasonably calculated to
enable the child to receive educational benefits.” Rowley, 458 U.S. at 207; see
also O’Toole ex rel. O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144
F.3d 692, 701 (10th Cir. 1998). If a district has met both the procedural and
substantive requirements, it “has complied with the obligations imposed by
Congress and the courts can require no more.” Rowley, 458 U.S. at 207.
We review the district court’s judgment de novo, applying the same
standard of review as the district court. Jefferson Cty., 702 F.3d at 1232. In
reviewing an administrative decision in the IDEA context, we apply a modified de
novo standard of review, meaning we give “‘due weight’” to the administrative
2 A school district may also violate the Act by failing to provide a child
with an education in the least restrictive environment. See Thompson, 540 F.3d at
1148; see also L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 975 n.13 (10th
Cir. 2004) (“The IDEA requires both that the child be provided a FAPE and that
such a FAPE be provided in an LRE [least restrictive environment] to the
maximum extent appropriate.”). Drew and his parents do not raise this type of
claim on appeal and we do not consider it.
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proceedings and consider the ALJ’s factual findings to be prima facie correct. Id.
(quoting Garcia v. Bd. of Educ., 520 F.3d 1116, 1125 (10th Cir. 2008)).
B. Application
The parents raise both procedural and substantive challenges. They first
allege two procedural deficiencies: (1) the District’s failure to provide them with
adequate reporting on Drew’s progress during the school years, and (2) the
District’s failure to conduct a proper assessment of Drew’s behavior and put in
place an adequate plan to address his particular behavioral needs.
Their substantive challenge also proceeds in two parts. First, the parents
argue the district court and the ALJ utilized the wrong legal standard in
evaluating the substantive sufficiency of the rejected fifth-grade IEP. Second,
they argue the ALJ and the district court erred in concluding the IEP was
substantively adequate because (1) Drew made no measurable progress on the
goals set in his past IEPs, and (2) there was no consideration of Drew’s escalating
behavioral problems.
We consider each in turn.
1. Procedural Challenges
The Supreme Court has emphasized the importance of the procedural
safeguards contained in the Act, explaining that “[w]hen the elaborate and highly
specific procedural safeguards embodied in [the IDEA] are contrasted with the
general and somewhat imprecise substantive admonitions contained in the
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Act, . . . the importance Congress attached to these procedural safeguards cannot
be gainsaid.” Rowley, 458 U.S. at 205. But merely identifying a procedural
deficiency does not automatically entitle a family to relief. See Systema ex rel.
Systema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1313 (10th Cir. 2008);
O’Toole, 144 F.3d at 701. A school district’s procedural failure must have
effectively denied the child a FAPE either because it (1) “impeded the child’s
right to a [FAPE],” (2) “significantly impeded the parents’ opportunity to
participate in the decisionmaking process regarding the provision of a [FAPE] to
the parents’ child,” or (3) “caused a deprivation of educational benefits.” 20
U.S.C. § 1415(f)(3)(E); see also Garcia, 520 F.3d at 1126 (“[O]ur precedent
hold[s] that procedural failures under IDEA amount to substantive failures only
where the procedural inadequacy results in an effective denial of a FAPE.”).
Drew’s parents contend they meet this standard because the District’s
alleged procedural violations impeded their ability to participate in informing
Drew’s education and denied Drew his right to adequate educational benefits.
a. Progress Reporting
The first procedural deficiency alleged by the parents is the District’s
failure to adequately report Drew’s progress toward the annual goals and
objectives listed in his IEPs. They contend the lack of progress reporting
deprived them of meaningful participation in Drew’s education. We agree with
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the District that, even assuming a procedural violation,3 the District’s progress
reporting did not result in the denial of a FAPE.
As an initial matter, the District concedes that the progress reporting on
Drew’s IEPs could have been more robust. As the ALJ found, Drew’s IEPs
contain little or no progress reporting or measurement data and where progress
was reported, it was “lacking in detail” or limited to “conclusory statements about
whether [Drew] was on track to meet the expectations of the plan and whether the
objective had been completed or would be continued.” R., Vol. I at 9, 15. But
the District contends what was reported was sufficient for the parents to assess
Drew’s progress and that whatever deficiencies existed, the parents’ involvement
in Drew’s education did not suffer as a result.
Drew’s parents were not absentee caretakers; they were just the opposite.
The ALJ found that, in addition to the progress reporting that was included on
Drew’s IEPs, there was substantial evidence of the parents’ awareness of Drew’s
progress and of their active participation in his education. For instance, the ALJ
found the parents were “in constant communication” with Drew’s special
education teacher both through face-to-face meetings and a “back-and-forth
3 The Act requires that the IEP include “a description of how the child’s
progress toward meeting the annual goals . . . will be measured and when periodic
reports on the progress the child is making toward meeting the annual goals (such
as through the use of quarterly or other periodic reports, concurrent with the
issuance of report cards) will be provided.” 20 U.S.C. § 1414(d)(1)(A)(i)(III); see
also 34 C.F.R. § 300.320(a)(3)(i). But neither the IDEA nor its implementing
regulations actually prescribe the frequency or the content of progress reports.
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notebook,” which was used to inform the parents of what occurred at school and
to inform Drew’s teacher of what happened in the home. Id. at 16; see also id. at
96 (D. Ct. Op. at 23) (finding “significant informal communication with the
parents as to [Drew’s] progress”). Drew’s teacher testified at the hearing that she
sent home quarterly progress reports (concurrent with the timing of report cards).
The parents also received Drew’s draft IEPs in advance of each team meeting and
were active in suggesting what goals and objectives should be modified, added, or
dropped from Drew’s IEPs. Accordingly, the ALJ did not err in concluding the
gaps in the reporting on some of Drew’s IEPs did not inhibit the parents from
meaningful participation in Drew’s education.
The parents point us to a case where a district court concluded that a school
district’s reporting deficiencies amounted to a substantive denial of a FAPE. See
Escambia Cty. Bd. of Educ. v. Benton, 406 F. Supp. 2d 1248 (S.D. Ala. 2005). In
that case, however, the student’s IEPs not only lacked progress reporting, but also
included annual goals and objectives that were alternatively described by the
district court as “mushy, ambiguous, [and] unquantifiable” and “[v]ague and
unmeasurable.” Id. at 1274–75. The critical distinction between Escambia and
Drew’s case is that the hearing officer there “plainly found adverse impacts”
caused by the procedural defects on the IEP team’s ability to make necessary
adjustments and interventions in the child’s education. Id. at 1273–74. Here, by
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contrast, the ALJ found the deficiencies in the District’s reporting did not have an
adverse impact on the IEP team’s ability to craft and implement Drew’s IEPs.
In reaching this conclusion, we do not downplay the importance of regular
and diligent progress reporting on IEPs. In a system built on the continuous
revision of individualized plans meant to address disabled students’ unique needs,
data on what is or is not working for a student is crucial. See Mitchell L. Yell et
al., Individualized Education Programs and Special Education Programming for
Students with Disabilities in Urban Schools, 41 Fordham Urb. L.J. 669, 709
(2013) (“Appropriate monitoring of a student’s progress . . . is essential because
without measuring a student’s progress, it will be impossible to determine if the
student’s program is working.”). Thus, while we do not endorse the District’s
reporting in this case, without evidence that there was an impact on Drew’s
education, we cannot say he was effectively denied a FAPE.
In short, the record supports the ALJ’s conclusion the parents were aware
of Drew’s progress and fully participated in his education.
b. Behavioral Assessment
The parents’ second procedural argument is that the District’s handling of
Drew’s behavioral needs amounted to a substantive denial of a FAPE.
Specifically, they criticize (1) the District’s failure to conduct a functional
behavior assessment (FBA) before implementing a behavior plan for Drew, and
(2) even absent the FBA, the District’s failure to put in place an appropriate
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behavioral intervention plan (BIP) to address Drew’s increasing behavioral
issues.4
Drew exhibited multiple behaviors that inhibited his ability to access
learning in the classroom. In the past, he has climbed over furniture and other
students, hit things, screamed, ran away from school, and twice removed his
clothing and gone to the bathroom on the floor of the classroom. Drew’s second
and fourth grade IEPs contained behavior plans (although they are somewhat
ambiguously marked “draft”). These plans identified some of Drew’s problem
behaviors and possible ways to manage and reduce those behaviors. The school
was also in regular contact with the parents regarding Drew’s behavior.
Despite the school’s prior attempts to manage his behavior, during Drew’s
fourth-grade year his behaviors increased to such a degree that the school decided
to go back to the drawing board and rework their approach. Drew’s special
education teacher kept notes on, and anecdotal data of, Drew’s behavior in an
effort to pinpoint Drew’s triggers. The District also scheduled an autism
specialist and a behavioral specialist to come in and meet with Drew’s IEP team
4 An FBA “identif[ies] the purpose—and more specifically the
function—of problem behaviors by investigating the preexisting environmental
factors that have served the purpose of these behaviors.” Perry A. Zirkel, Case
Law for Functional Behavior Assessments and Behavior Intervention Plans: An
Empirical Analysis, 35 Seattle U. L. Rev. 175, 175 (2011). FBAs are often
completed prior to and become the basis of a student’s BIP, which is the
“concrete plan of action for reducing problem behaviors.” Id.
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to put a new behavioral plan in place. The parents did not attend the meeting as
they pulled Drew from the District before its scheduled date.
Drew’s mother testified that the escalation of Drew’s behavior left them
with what they felt was one choice—to place Drew in a different learning
environment. But as a matter of procedure, the District did not violate any
provision of the IDEA or its implementing regulations. The Act provides that in
developing and revising a student’s IEP, the IEP team must, “in the case of a
child whose behavior impedes the child’s learning or that of others, consider the
use of positive behavioral interventions and supports, and other strategies, to
address that behavior.” 20 U.S.C. § 1414(d)(3)(B)(i); see also 34 C.F.R.
§ 300.324(a)(2)(i). The requirement is merely to “consider the use” of the listed
behavioral interventions. See Perry A. Zirkel, Case Law for Functional Behavior
Assessments and Behavior Intervention Plans: An Empirical Analysis, 35 Seattle
L.R. 175, 186 (2011) (noting the operant verb is “to consider,” and not “to
develop or implement”). The statute only requires school districts (and even
then, only “as appropriate”) to conduct an FBA or to implement a behavioral plan
if there is a disciplinary change in placement of the student.5 See 20 U.S.C.
5 State law often goes further than the IDEA with respect to when FBAs
and BIPs are required. See, e.g., T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist.,
752 F.3d 145, 169 (2d Cir. 2014) (“New York state regulations go beyond this
floor set by the IDEA; they require a school district to conduct a full FBA for a
student who exhibits behavior that impedes learning, and to develop a BIP to
address that behavior.”). And school districts must comply with state educational
(continued...)
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§ 1415(k)(1)(D)(ii) (“A child with a disability who is removed from the child’s
current placement . . . shall . . . receive, as appropriate, a functional behavioral
assessment, behavioral intervention services and modifications, that are designed
to address the behavior violation so that it does not recur.”); see also Park Hill
Sch. Dist. v. Dass, 655 F.3d 762, 766 (8th Cir. 2011) (“The IDEA only requires
that an IEP include . . . a ‘behavioral intervention plan’ in limited circumstances
not present in this case.”); Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518
F.3d 18, 25 (1st Cir. 2008) (“The IDEA only requires a behavioral plan when
certain disciplinary actions are taken against a disabled child.”); Alex R. ex rel.
Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. #221, 375 F.3d 603, 614 (7th
Cir. 2004); Susan C. Bon & Allan G. Osborne, Jr., Does the Failure to Conduct
an FBA or Develop a BIP Result in a Denial of a FAPE Under the IDEA?, 307
Educ. L. Rep. 581, 581 (2014). And even where an FBA or BIP is required, the
IDEA does not impose any substantive requirements as to what they must include.
Bon & Osborne, supra, at 583.
Drew was never subject to a disciplinary change in placement. Thus, even
though the record establishes that Drew is “a child whose behavior impedes the
child’s learning or that of others” all that was required by the Act was for the
5(...continued)
standards that are not inconsistent with federal standards. See O’Toole, 144 F.3d
at 698. Drew and his parents make no argument based on Colorado law and we
do not consider it.
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District to “consider” behavioral intervention. 20 U.S.C. § 1414(d)(3)(B)(i). The
record is filled with examples of the District’s consideration of Drew’s behavioral
issues. Thus, the District complied with federal law. See R.P. ex rel. R.P. v.
Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 813 (5th Cir. 2012) (finding the
school district complied with federal law where the district considered behavioral
interventions and the child had not been removed from her placement due to
disciplinary infractions); Lessard, 518 F.3d at 26 (same).
In sum, we find no procedural defect that amounted to a denial of a FAPE.
2. Substantive Challenge
Because neither of the parents’ procedural arguments establish a violation
of the Act, we must resolve their argument that the District’s proposed fifth-grade
IEP was substantively inadequate. The parents submit it was not adequate for two
reasons. First, because the fifth-grade IEP was similar in all material respects to
Drew’s past IEPs, they contend that Drew’s lack of progress on the objectives
listed in those IEPs is dispositive of whether the rejected IEP was reasonably
calculated to provide Drew educational benefit. Second, the parents contend the
ALJ failed to consider the impact of Drew’s escalating behavioral problems in
determining whether the IEP was reasonably calculated to provide Drew an
educational benefit.
Before reaching these arguments, we must first address the parents’
contention that our circuit recently shifted the standard with which we measure
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the substantive adequacy of an IEP—that is, whether the IEP is “reasonably
calculated to enable the child to receive educational benefits.” Rowley, 458 U.S.
at 207. Specifically, they argue our opinion in Jefferson County School District
v. Elizabeth E., 702 F.3d 1227 (10th Cir. 2012) abandoned the “some educational
benefit” standard previously articulated in our cases (and applied by the ALJ and
the district court) in favor of a heightened “meaningful educational benefit”
standard.
A brief detour in the case law explains the argument and its resolution. In
Board of Education v. Rowley, 458 U.S. 176 (1982), the Supreme Court, in
considering the statutory precursor to the IDEA, the Education of the
Handicapped Act (EHA), determined that Congress’s aim had been to set a “basic
floor of opportunity” for disabled children by “providing individualized services
sufficient to provide every eligible child with ‘some educational benefit.’”
Thompson, 540 F.3d 1143 at 1149 (quoting Rowley, 458 U.S. at 200). Congress
did not “‘guarantee educational services sufficient to maximize each child’s
potential.’” Id. (quoting Rowley, 458 U.S. at 198) (internal quotation marks
omitted); see also Rowley, 458 U.S. at 192 (stating that “the intent of the Act was
more to open the door of public education to handicapped children on appropriate
terms than to guarantee any particular level of education once inside”). This
circuit has long subscribed to the Rowley Court’s “some educational benefit”
language in defining a FAPE, see O’Toole, 144 F.3d at 707–08, and interpreted it
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to mean that “the educational benefit mandated by IDEA must merely be ‘more
than de minimis.’” Thompson, 540 F.3d at 1149 (quoting Urban ex rel. Urban v.
Jefferson Cty. Sch. Dist. R-1, 89 F.3d 720, 727 (10th Cir. 1996)).
Several circuits have adopted a higher standard—requiring a “meaningful
educational benefit.” See, e.g., Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840,
862 (6th Cir. 2004); Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d
804, 808–09 (5th Cir. 2003); Polk v. Cent. Susquehanna Intermediate Unit 16,
853 F.2d 171, 182 (3d Cir. 1988). These courts have relied on other language in
Rowley6 as well as language in post-Rowley amendments to the IDEA, which
some have interpreted as promising disabled children a higher measure of
achievement.7 This circuit, however, has continued to adhere to the Rowley
Court’s “some educational benefit” definition of a FAPE.8 In Thompson, we
6 The Rowley Court also said, “By passing the Act, Congress sought
primarily to make public education available to handicapped children. But in
seeking to provide such access to public education, Congress did not impose upon
the States any greater substantive educational standard than would be necessary to
make such access meaningful.” 458 U.S. at 192 (emphasis added).
7 In the wake of post-Rowley amendments to the IDEA in 1997 and 2004,
many commentators argued for the adoption of a higher substantive standard.
See Perry A. Zirkel, Have the Amendments to the Individuals with Disabilities
Education Act Razed Rowley and Raised the Substantive Standard for “Free
Appropriate Public Education”?, 28 J. Nat’l Ass’n Admin. L. Judiciary 396,
402–03 (2008); Perry A. Zirkel, Is it Time for Elevating the Standard for FAPE
Under IDEA?, 79 Exceptional Child 497, 498–99 (2013).
8 Although the “meaningful benefit” standard is purportedly higher than
the “some benefit” standard, the difference between them—that is, how much
(continued...)
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found it inconsequential that Rowley had analyzed the statutory precursor to the
IDEA because Congress has maintained the same statutory definition of a FAPE
from its initial inception in the EHA and in each subsequent amendment to the
Act. See 540 F.3d at 1149 n.5. We also noted that subsequent Supreme Court
decisions have cited Rowley’s definition of a FAPE approvingly. See id. (citing
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525 (2007)); see also Ronald
D. Wenkart, The Rowley Standard: A Circuit by Circuit Review of How Rowley
8(...continued)
more benefit a student must receive for it to be meaningful—is not clear.
Systema, 538 F.3d at 1313 n.7 (“Admittedly, it is difficult to distinguish between
the requirements of the ‘some benefit’ and the ‘meaningful benefit’ standards.”).
Compare Scott F. Johnson, Rowley Forever More? A Call for Clarity and
Change, 41 J.L. & Educ. 25, 27 (2012) (arguing that “[u]sing one standard or the
other can dramatically affect the outcome of a case and the services provided to a
student”), with Andrea Kayne Kaufman & Evan Blewett, When Good Is No
Longer Good Enough: How the High Stakes Nature of the No Child Left Behind
Act Supplanted the Rowley Definition of a Free Appropriate Public Education, 41
J.L. & Educ. 5, 20–21 (2012) (noting it is “unclear whether or not there is any
real difference . . . other than semantics”), and Ronald D. Wenkart, The Rowley
Standard: A Circuit by Circuit Review of How Rowley Has Been Interpreted, 247
Educ. L. Rep. 1, 4 (2009) (arguing that “the use of different terminology does not
appear to create different substantive standards or lead to different results”).
Although commentators agree there is a circuit split on the applicable
standard, which circuit falls on which side varies depending on which
commentator you read. Compare Kaufman & Blewett, supra, at 20 (stating that
the majority of the circuit courts adhere to the “some educational benefit”
standard), and Wenkart, supra, at 1 (same), with Scott Goldschmidt, A New Idea
for Special-Education Law: Resolving the “Appropriate” Educational Benefit
Circuit Split and Ensuring a Meaningful Education for Students wtih Disabilities,
60 Cath. U. L. Rev. 749, 751 (2011) (stating that “a slight majority” of circuits
“requir[e] a heightened-educational-benefit standard”).
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Has Been Interpreted, 247 Educ. L. Rep. 1, 5–6 (2009) (noting subsequent
Supreme Court cases have not questioned or overruled the Rowley standard). And
in Systema ex rel. Systema v. Academy School District No. 20, we explicitly
rejected an argument that this court should follow the Third Circuit’s heightened
“meaningful benefit” standard because as we explained there, this circuit applies
“the ‘some benefit’ standard the Supreme Court adopted in Rowley.” 538 F.3d at
1313 & n.7 (citing O’Toole, 144 F.3d at 699).
The parents agree with us up to this point, but contend that our more recent
opinion in Jefferson County marked a “fundamental shift” in circuit precedent and
adopted the “meaningful educational benefit” standard. Aplt. Br. at 12. Relying
on Jefferson County, they ask that we now expressly overturn Thompson R2-J
School District v. Luke P. ex rel. Jeff P., 540 F.3d 1143—the case relied on by the
ALJ and the district court for the “some educational benefit” standard. That we
cannot do. We are bound by Thompson (and the cases preceding it) “absent en
banc reconsideration or a superseding contrary decision by the Supreme Court.”
United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000).
Nor do we see, in any event, evidence that the Jefferson County panel
intended to abandon the “some educational benefit” standard. The issue in
Jefferson County was not how much benefit to a child must be demonstrated to
surpass the substantive threshold of a FAPE. In fact, the hearing officer in that
case found the school district failed to provide the student with a FAPE and the
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district did not appeal that finding before the ALJ, the district court, or on appeal
to this court. Thus, we had no reason to discuss the proper standard to apply in
making that determination.
The issue was how—absent a FAPE—to determine if a child’s placement in
a private, residential facility is proper under the Act and thus reimbursable. Much
of the opinion was spent outlining the approaches from other circuits—as is
relevant here, one from the Third Circuit and one from the Fifth. As referenced
above, both the Third and the Fifth Circuits define a FAPE to require the
conferral of a meaningful educational benefit. The three appearances of the
phrase “meaningful educational benefit” in the majority opinion of Jefferson
County is a reflection of the effort spent recounting the law of those circuits and
not a discrete attempt to depart from this circuit’s well-established definition of a
FAPE. The first appearance of “meaningful educational benefit,” for instance,
appears within a quote from a Fifth Circuit opinion. 702 F.3d at 1234 (quoting
Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 299 (5th Cir. 2009)).
The second and third instances do recount that the IDEA requires “that all
children, no matter how disabled, receive some meaningful educational benefit,”
id. at 1238, but that language is supported by both a cite to a Third Circuit
opinion and a citation to Thompson. In our view, those citations—one to a circuit
following a “meaningful educational benefit” standard and one following the
“some educational benefit” standard—make it clear that the fleeting references to
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“meaningful educational benefit” in Jefferson County is nothing more than that.
Regardless, this panel, like the Jefferson County panel, has no authority to deviate
from Thompson, or the cases preceding it,9 that establish how much benefit must
be shown to the child to find that a district provided a student with a FAPE in this
circuit.
Thus, the ALJ and the district court applied the correct standard, and we
too consider the parents’ challenge to the sufficiency of the IEP under this
circuit’s “some educational benefit” standard. In applying this standard, the
measure is whether the IEP is reasonably calculated to guarantee some
educational benefit, not whether it will do so. Thus, “our precedent instructs that
the measure and adequacy of an IEP can only be determined as of the time it is
offered to the student. . . . Neither the statute nor reason countenance ‘Monday
Morning Quarterbacking’ in evaluating the appropriateness of a child’s
placement.” Thompson, 540 F.3d at 1149 (quoting O’Toole, 144 F.3d at 701–02)
(internal quotation marks omitted).
The ALJ and the district court relied on evidence of Drew’s progress on
past IEPs as proof of the adequacy of the fifth-grade IEP. Although evidence of
past progress is not “dispositive of the controlling question whether, going
forward, the [latest] IEP was reasonably calculated to confer some educational
9 See, e.g., Systema, 538 F.3d at 1313 (“[W]e apply the ‘some benefit’
standard the Supreme Court adopted in Rowley.”); O’Toole, 144 F.3d at 699.
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benefit,” we have said that past progress “strongly suggest[s]” the current IEP is
“reasonably calculated to continue that trend.” Id. at 1153.
In this case, the parents contend there is no trend of progress, both because
the District failed to measure Drew’s progress on his past IEPs and because any
progress made was de minimis. The ALJ found that, despite the reporting
deficiencies, it was evident that Drew made progress towards his academic and
functional goals on his IEPs and that he received educational benefit during the
time he was enrolled in the District.10 The ALJ’s finding of progress is a factual
10 R., Vol. I at 8 (“Through first and second grade, [Drew] was progressing
academically.”); id. at 9 (finding Drew “was making progress towards some of
[his] goals and objectives during . . . third grade”); id. (finding the objectives and
criteria in Drew’s 2008 IEP “were modified to account for [Drew’s] progress
toward those goals”); id. at 10 (finding that despite increased behavioral
problems, “during the school year 2009 [Drew] was still making some progress
towards [his] academic and functional goals”); id. at 12 (concluding that Drew
“made progress” during his time in District schools).
The parents point to the district court’s statement that the record “did not
reveal immense educational growth,” but was “sufficient to show a pattern of, at
the least, minimal progress.” Id. at 93. The parents say that statement proves that
Drew’s progress fell short of even the “some educational benefit” standard which
requires more than de minimis progress. But the district court also stated that the
“past IEPs reveal[] a pattern of some progress on his education and functional
goals, and that the proposed IEP for the fifth grade continues that pattern.” Id. at
94 (emphasis added); see also id. (stating Drew “made progress towards his
academic and functional goals” and “received educational benefit while enrolled
in the District”). Moreover, in reviewing the ALJ’s decision, we apply the same
standard as the district court, and as we conclude below, the ALJ’s findings of
progress are supported by the record and are sufficient to find Drew received
some educational benefit.
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finding that is owed a presumption of correctness under our modified de novo
standard of review. See id. at 1153 n.9.
And a review of the record reveals support for the ALJ’s finding. Drew’s
IEPs from second, third, and fourth grades11 reveal that the objectives and
measuring criteria listed under the annual goals set for Drew by the IEP team
typically increased with difficulty from year to year. In the areas where Drew
was not ready to move ahead, the objective remained the same on the next year’s
IEP. Drew’s special education teacher testified at the hearing that the change in
objectives reflected the progress Drew was making. Drew’s mother also testified
that despite her belief Drew was not reaching his potential, she did see some
academic progress in first, third, and fourth grades.
This is without question a close case, but we find there are sufficient
indications of Drew’s past progress to find the IEP rejected by the parents
substantively adequate under our prevailing standard. It is clear from the
testimony at the due process hearing that Drew is thriving at Firefly. But it is not
the District’s burden to pay for his placement there when Drew was making some
progress under its tutelage. That is all that is required. “The Act does not require
that States do whatever is necessary to ensure that all students achieve a
particular standardized level of ability and knowledge. Rather, it much more
modestly calls for the creation of individualized programs reasonably calculated
11 Drew’s IEPs from years prior to second grade are not in the record.
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to enable the student to make some progress towards the goals within that
program.” Thompson, 540 F.3d at 1155 (emphasis added); see also Rowley, 458
U.S. at 197 n.21 (stating that the Act does not guarantee students “a potentialmaximizing
education”).
The parents’ final contention is that the District’s handling of Drew’s
behavior is a relevant consideration in determining whether the IEP they rejected
was substantively adequate. We find support for their contention in some of the
case law, but disagree both that the ALJ ignored Drew’s behavioral issues and
that the District failed to address those issues. See Alex R., 375 F.3d at 613 (“To
meet the . . . substantive criterion of Rowley, an IEP must respond to all
significant facets of the student’s disability, both academic and behavioral.”);
Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1029–30 (8th Cir. 2003) (holding
the school district failed to provide an educational benefit by not addressing a
student’s behavioral issues). As recounted above, the District worked to address
the behaviors that affected Drew’s ability to learn in the classroom.12 The ALJ
found that “the District worked collaboratively with the parents and other service
providers to address [Drew’s] behaviors as they arose.” R., Vol. I at 13. And
when the District reached the conclusion that Drew’s behavioral problems had
12 Although the parents take issue with the substance of the BIPs put in
place by the District in prior years, neither the IDEA nor its implementing
regulations prescribe substantive requirements for what should be included in
BIPs. “[T]he District’s behavioral intervention plan could not have fallen short of
substantive criteria that do not exist . . . .” Alex R., 375 F.3d at 615.
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escalated to such a degree that they were creating a barrier to his academic
progress during his fourth-grade year, they called in specialists to reassess and
implement a new behavior plan. Drew never received the benefit of the District’s
efforts because his parents had already enrolled him in Firefly when the meeting
was scheduled to take place.13
In sum, the record shows the District was actively working to address
Drew’s disability-related behaviors and that he made some academic progress
despite his behavioral challenges. Accordingly, the parents have not met their
burden of showing that the IEP they rejected was not reasonably calculated to
enable Drew to receive educational benefits.

* * *

13 The fifth-grade IEP rejected by the parents, dated April 14, 2010, did not
yet include a new BIP because it was set to be drafted after the meeting with the
behavioral specialists scheduled for May 10. The parents gave notice of their
intent to withdraw Drew on May 1 and did not attend the May 10 meeting.
District officials met without the parents in an effort to memorialize their findings
on, and recommendations for, Drew’s behavior. See R., Vol. I at 11 (finding by
the ALJ that on May 10 “a draft BIP was prepared by the District”). The parents
did meet with district officials the following November and were again presented
with an IEP for Drew, which included the BIP drafted in May. That IEP was also
rejected by the parents.

Outcome: For the foregoing reasons, we find the District provided Drew a free
appropriate public education. Because the IDEA provides that reimbursement is
due only where the school district has not made a FAPE available to the child, we
find the parents are not entitled to the compensation they seek. Accordingly, we
AFFIRM the judgment of the district court.

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