Significant Decision Issued by the Fifth Circuit Clarifying FAPE Standard Following Endrew F.

HOUSTON, TEXAS, JULY 5, 2017 / — Thompson & Horton LLP is pleased to announce a significant decision issued by the United States Court of Appeals for the 5th Circuit on behalf of our client Waller Independent School District, C.G. v. WALLER INDEPENDENT SCHOOL DISTRICT. The Court’s opinion is attached. The district was represented by Thompson & Horton LLP partner Christopher Borreca and counsel Holly McIntush.

The decision makes clear that a recent ruling from the United States Supreme Court will not alter the standard in the 5th Circuit for determining whether a student has been provided a “free appropriate public education (“FAPE”). In that case, Endrew F. v. Douglas County School District RE-1, the Supreme Court altered, for some circuits, the FAPE standard previously stated in Board of Education of the Hendrick Hudson Central School District v. Rowley, U.S. (1982). While the Court did not strike down Rowley, it rejected the “barely more than de minimis” formulation of the 10th U.S. Circuit Court of Appeals, the circuit of origin of the case on appeal. The Supreme Court held that the correct FAPE standard is met by a school’s offer of an IEP that is reasonably calculated to enable a child to make progress “appropriate in light of the child’s circumstances.”

School districts in Texas (and also Louisiana and Mississippi) have been unsure whether Endrew altered the FAPE standards of Michael F. which have been followed in the 5th Circuit for over 20 years. The ruling, issued on June 22, 2017, in C.G. v. WALLER INDEPENDENT SCHOOL DISTRICT, indicates that Endrew F. did not invalidate the four-factor test from Cypress-Fairbanks Independent School District v. Michael F., 26 IDELR 303 (5th Cir. 1997), used in Texas, Louisiana, and Mississippi and that Michael F. remains a valid standard by which a school district can evaluate whether FAPE has been offered to a student in special education. Because the IEPs at issue in C.G. v. Waller satisfied the Michael F. factors, the 5th Circuit held that they offered the child FAPE even under Endrew.

In the Waller case, parents of a child with autism attempted to argue that the Endrew ruling proved that the school district denied their daughter FAPE during her preschool years. The 5th Circuit held that the Supreme Court’s March 2017 ruling in Endrew did not alter the District Court’s conclusion that the child made meaningful progress under her IEPs. The three-judge panel observed that the District Court applied the four-factor test set forth in Michael F. Under the Michael F. standard, an IEP is appropriate if it: 1) is individualized on the basis of the student’s assessment and performance; 2) is administered in the LRE; 3) is implemented in a coordinated and collaborative manner by the key stakeholders; and 4) demonstrates positive academic and nonacademic benefits. The parents argued that the child’s IEPs did not satisfy the Endrew standard of FAPE, which requires an IEP to be “appropriately ambitious” in light of the child’s unique circumstances. However, the 5th Circuit explained that the two standards were not inconsistent. “Although the District Court did not articulate the standard set forth in Endrew verbatim, its analysis of [the child’s] IEP is fully consistent with that standard and leaves no doubt that the court was convinced that [the child’s] IEP was ‘appropriately ambitious in light of [her] circumstances.'” U.S. Circuit Judge Jacques L. Wiener wrote in an unpublished decision.

The panel also affirmed the District Court’s dismissal of the parents’ Section 504 claims. Citing another recent Supreme Court ruling, Fry v. Napoleon Community Schools, 69 IDELR 116 (2017), the 5th Circuit noted that the Section 504 claim was alleging the same denial of FAPE as the parents’ IDEA claim. The panel held that the parents’ lack of success on their IDEA claim precluded them from proving a denial of FAPE under Section 504.

If you need any further guidance on the effect of the decision upon your school district’s special education program, feel free to contact Mr. Borreca at or Ms. McIntush at


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