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Special Education Law Alert: The Lessons of Endrew F.

On March 22 in Endrew F., the Supreme Court revisited and refined its interpretation in Rowley (1982) of the substantive standard for IEPs.  Click to read my immediate “take” on this centrally significant decision, which directly addresses one side of FAPE and indirectly serves as a reminder of the modern interpretation of the procedural side of this “centerpiece” of the IDEA.

March 2017 Legal Update #1

This month’s update provides the highlights and practical implications of one major legal development, plus a customizable Section 504 eligibility form:

  1. The U.S. Supreme Court issued a decision on Feb. 22, 2017 that demarcated the scope of the IDEA’s exhaustion provision, which concerns whether parents must complete the impartial hearing process before proceeding in court.
  2. In the absence of a second major legal development during the past four weeks, this month’s Alert provides the attached Section 504 eligibility form, which may be customized for local use with due acknowledgment per the asterisked note at the bottom of the form.

Click to download the March update.

February 2017 Legal Update

This month’s update provides the highlights and practical implications of the following two major legal developments:

  1. The Second Circuit Court of Appeals, which encompasses CT, NY, and VT and which is the most active federal appeals court under the IDEA, recently issued a significant decision that largely pierces or erodes the methodology barrier.
  2. The Supreme Court has held oral arguments in Endrew F. v. Douglas County School District Re-1, and a decision is expected later in this term of the Court, most likely in May or June.

Click to download February’s legal alert.

January 2017 Legal Update

This month’s update provides the highlights and practical implications of the following two major legal developments:

  1. Court decisions specific to response to intervention (RTI) continue to be limited in number, legal weight, and implementation guidance. A recent decision from Connecticut is a partial exception.
  2. My recent legal update specific to gifted students, published in the current issue of the Journal for Education of the Gifted (v. 39, pp. 315–337), partly overlaps with the law specific to students with disabilities.

Click to download January 2017’s legal alert (zirkel-legal-alert-january-2017).

December Legal Update

This December alert provides highlights of the following significant article, which appeared in print this month and which provides the full details of a recent empirical analysis of case law on procedural FAPE:

Perry A. Zirkel & Allyse Hetrick, (2016). Which procedural parts of the IEP process are most judicially vulnerable? Exceptional Children, 83 (2), 219-235. doi: 10.1177/0014402916651849

Click to download December 2016’s legal alert (zirkel-legal-alert-december-2016).


This November update identifies two relatively recently recognized forms of alleged denials of IDEA’s central obligation of “free appropriate public education” (FAPE), which have emerged beyond the procedural and substantive dimensions of FAPE originally established in Board of Education v. Rowley (1982).

  1. The first of these two relatively recent judicially recognized forms of FAPE is implementation—specifically, a denial of FAPE based on the failure to implement the IEP fully. The update identifies the three competing approaches for such failure-to-implement cases, with the majority of jurisdictions not yet having clearly chosen among them.
  2. The most recently recognized and least clearly settled claim for denial of FAPE is based on the capacity of the placement to implement the IEP. This claim that the school is not able to implement the child’s IEP has elements of the procedural, substantive, and implementation dimensions but is ultimately separable from them.

Click to download November 2016’s legal alert (zirkel-legal-alert-november-2016).