In Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), the Supreme Court stated “Endrew’s IEPs largely carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress toward his aims.” Id. at 996. This sentence could be grounds to claim that a District simply repeating the same goals year after year is a FAPE denial, and seen as evidence of a District failing to create “an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Id. at 999.
Unfortunately, recent Second Circuit and Third Circuit decisions might undercut this argument, and should be noted.
The Second Circuit’s F.L. ex rel. R.C.L. v. Board of Education of The Great Neck Union Free School District, 735 F. App’x 38 (2d Cir. 2018) found:
The father argues there is objective evidence that R.C.L. did not receive
a FAPE because goals that were repeated between IEPs and R.C.L.’s
poor performance on standardized tests … indicate that he was not in
fact progressing, but was instead either stagnating or regressing. The
SRO examined these issues and determined that the weight of the
evidence demonstrated that R.C.L. was progressing, even if not at a
pace that his father would have preferred. We agree that the
preponderance of the evidence supports the view that R.C.L. made
steady progress each year and that his IEPs were individually tailored
to his unique mix of strengths and deficits … [an] educational program
need not include “grade-level advancement” if that kind of progress is
not “a reasonable prospect” for the particular child. [citing Endrew F.
ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S.Ct. 988, 1000, 197 L. Ed.
2d 335 (2017)]. “But his educational program must be appropriately
ambitious in light of his circumstances, just as advancement from
grade to grade is appropriately ambitious for most children in the
regular classroom. The goals may differ, but every child should have
the chance to meet challenging objectives.”
Unfortunately, the Court’s decision did not state how many goals were repeated, how many years the goals were repeated, or what types of goals were repeated. Broadly speaking, this case indicates that merely repeating goals does not indicate a FAPE denial if the goals were in fact individually tailored to a student, and “appropriately ambitious.” However, there could still be distinguishable scenarios. For one, if in fact a District repeated a majority or all the same goals year after year, verbatim, one could still try and argue, due to the Court’s absence of this information in F.L., that these repeated goals could not have been tailored to the student’s needs or appropriately ambitious. However, a main distinguishing factor to focus on going forward might be to demonstrate not merely that goals were repeated, but to emphasize and show that the repeated goals were not tailored to a student’s specific needs. For instance, if a comparison between information in the present levels of performance section of an IEP, or even other information available to the District such as evaluations, demonstrated that the repeated goals were unnecessary or did not address a student’s issues, the repeated goals would be inappropriate for the student to make progress. In addition, demonstrating that in your student’s instance, having him work another year on the same exact goal(s) would not meet his specific needs, and instead he needed different goals and different ways to address his area of need, might show that the repeated goals could not produce progress, as they were not tailored to the student. For instance, if there were statements that the student’s goals were not working, yet the District repeated the same goals anyway.
The Third Circuit’s K.D. v. Downingtown Area School District, 904 F.3d 248 (Third Cir. 2018) is more promising. There, the Court found “while [the District] repeated some goals, [the District] ‘did not simply hand out the same IEP year after year,’ but repeated foundational skills where needed to address ‘the challenge of teaching even fundamental skills to [K.D.].’ [The District] had explained clearly why it chose the programs it did and how they addressed K.D.’s needs.” Id. (internal citations omitted). Many cases could be distinguishable here, for instance, when a District does repeat the same or majority of the same IEP goals year after year, or if the repeated goals did not address basic or foundational skills.
While these two cases from the Second Circuit and Third Circuit certainly constrict the argument that repeated goals are evidence of a FAPE denial, these cases should not be seen as a bar to that argument. The facts of future cases can be distinguished from these two cases, and repeated goals should not go unnoted in impartial hearing requests. Instead, those filing hearing requests should make sure to develop this claim fully and be prepared to explain and show why the repeated goals were not appropriate for the student at issue, as opposed to merely stating that the District repeated goals and leaving it at that.