Abstract
The central obligation under the Individuals With Disabilities Education Act is to provide each eligible student with a free appropriate public education (FAPE). In Endrew F. v. Douglas County School District RE-1 (2017), the U.S. Supreme Court revised the prior substantive standard for determining FAPE that the court had developed in Board of Education v. Rowley (1982). The Endrew F. court modified the Rowley standard of requiring the individualized education program (IEP) to be reasonably calculated to enable the student to receive educational benefit to requiring a student's IEP to be reasonably calculated to enable the student to “make progress appropriate in light of the student's circumstances.” The purpose of this article is to compare what the post–Endrew F. courts use with what the professional literature recommends as measures of appropriate progress. The results inform special education practitioners about the significant discrepancy between the courts’ focus on the “must” of legal requirements and the “should” of professional recommendations. The discussion suggests ways that special education professionals can use their expertise to inform courts and legislatures to narrow this gap for the benefit of more effective progress for students with disabilities.
The coverage in the special education literature of the Individuals With Disabilities Education Act (IDEA; 2018) often does not distinguish between legal requirements, as established by the courts, and professional best practices, as enunciated by special education experts. A central example is the treatment of the Supreme Court's decision in Endrew F. v. Douglas County School District RE-1 (2017).
In Endrew F., the Supreme Court refined the substantive standard for free appropriate public education (FAPE) under IDEA to change the focus of the reasonable calculation from benefit to progress. More specifically, the Supreme Court revised the prior substantive standard in Board of Education v. Rowley (1982) from requiring the individualized education program (IEP) to be “reasonably calculated to enable the child to receive educational benefit [emphasis added]” (pp. 206–207) to its being “reasonably calculated to enable [the] child to make progress [emphasis added] appropriate in light of the child's circumstances” (Endrew F., 2017, p. 999).
Similar to the treatment of various IDEA issues, ranging from child find (Zirkel, 2015) to transition services (Zirkel, 2018a), the special education literature often includes questionable characterizations of Endrew F., including rather lofty interpretations of its substantive standard for FAPE in relation to the Rowley formulation (Zirkel, 2020). As a recent example, Wehmeyer (2022) described Endrew F. as “fundamentally chang[ing]” the “vague and low-level standard” of Rowley (p. 10). Yet, a careful and objective reading of the Endrew F. decision changed the Rowley standard only to a general and no more precise formulation, expressing disagreement only with the Tenth Circuit's low-level interpretation of Rowley, not Rowley itself. Similarly, and more specific to progress measurement, Rojo et al. (2021) characterized Endrew F. as providing “a new [and “high”] standard for documenting and ensuring student growth” (p. 328). Yet, the Endrew F. court did not enunciate any specific standard for documentation beyond the Rowley formulation and reiterated the Rowley disclaimer of ensuring any particular level of growth. The primary problems with such well-intentioned messages for the field are the lack of (a) clear differentiation between professional recommendations and legal requirements and (b) commensurate collaboration between authors with special education expertise and those with legal expertise (e.g., Zirkel, 2019).
This article illustrates this requisite differentiation and collaboration in analyzing the indicators of progress, such as grades or test scores, in the wake of Endrew F. from two overlapping but distinct perspectives, referred to herein under the shorthand labels of a “legal” lens and a “professional” lens. More specifically, serving as reasonable but not-at-all exclusive examples of these two complementary lenses, the coauthors consist of an impartial legal specialist and an expert special education professional. Recognizing the variance within each of these roles and the approaches for analyzing the two respective sources, we offer our summaries of the applicable court rulings and the applicable professional literature.
The three successive parts of the article consist of (a) the meaning of and framework for “progress indicators” as the result of Rowley and Endrew F., (b) the contrasting summaries of the special education literature and the post–Endrew F. substantive FAPE rulings for each category of progress indicators, and (c) a discussion of the differentiation and collaboration implications of this dual analysis for special education practice and research.
Progress Indicators Under Rowley and Endrew F.
In establishing its original formulation of the substantive standard for FAPE, the Rowley court confined its focus to the particular profile of the student at issue, Amy Rowley, including her inclusionary placement and above-average performance (Rowley, 1982, p. 202). In doing so, the court specified two indicators, or measures, for its standard of reasonable calculation of educational benefit: “If the child is being educated in the regular classrooms of the public education system, [the IEP] should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade” (Rowley, 1982, p. 204). However, avoiding an absolute approach for these indicators, the Rowley court cautioned, “We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a ‘[FAPE]’” (Rowley, 1982, p. 203, note 25). Finally, the court provided a reminder of the traditional judicial deference to local and state school authorities, especially for policy and methodological matters (Rowley, 1982, pp. 207–208).
In the many years of the lower court rulings that applied Rowley's substantive standard prior to Endrew F., three features are particularly pertinent. First, many cases did not identify any specific indicators due to the focus on “reasonable calculation” rather than resulting benefit. This focus was particularly pronounced because the prevailing view of the lower courts was to apply the so-called snapshot approach, which is to determine the appropriateness of the IEP based on what the IEP team knew or had reason to know at the time of the developing it (e.g., Zirkel, 2018b). For example, the U.S. Court of Appeals for the First Circuit ruled that in applying the substantive standard for FAPE, hearing officers and courts should base their determination on “what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated” (Roland M. v. Concord School Committee, 1990, p. 992). As a result, much of the courts’ determinations of reasonable calculation has been based solely on the contents of the IEP, such as the nature and amount of services in relation to the present levels and goals.
Second, in assessing the targeted “benefit” component of the Rowley formulation, the courts did so by using its operational translation of “progress.” For example, consider this differential translation in applying the snapshot approach: Actual educational progress can (and sometimes will) demonstrate that an IEP provides a FAPE. . . . But to impose the inverse of this rule—that a lack of progress necessarily betokens an IEP's inadequacy—would contradict the fundamental concept that “[a]n IEP is a snapshot, not a retrospective.” (Lessard v. Wilton Lyndeborough Cooperative School District, 2008, p. 29)
More generally, consider the following wording that various U.S. courts of appeals have used as the translation of Rowley's substantive standard: “An appropriate public education under IDEA is one that is ‘likely to produce progress [emphasis added], not regression’” (e.g., Cypress-Fairbanks Independent School District v. Michael F., 1997, p. 248; M.B. v. Hamilton Southeastern Schools, 2011, p. 862; Walczak v. Florida Union Free School District, 1998, p. 130).
Third, those courts that reached the measures of progress not only repeated the Rowley indicators of passing grades and promotion but also added other categories of what they regard as relevant “objective evidence.” For example, in Walczak, the Second Circuit identified these additional categories of progress indicators for applying the substantive standard for FAPE: “test scores and similar objective criteria” (Walczak, 1998, p. 130). Additional categories identified in other Rowley progeny include progress reports (e.g., K.E. v. Independent School District No. 15, 2011, p. 809) and teacher interpretation (e.g., Houston Independent School District v. V.P., 2009, pp. 590–591).
In Endrew F. (2017), the Supreme Court reaffirmed selected aspects of the substantive side of Rowley and its progeny. First, repeating the nonguaranteed basis of the standard, the court endorsed its snapshot application: “The ‘reasonably calculated’ qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials” (Endrew F., 2017, p. 999). Second, Endrew F. reiterated the Rowley distinction that the legal focus is on “whether the IEP is reasonable, not whether the court regards it as ideal” (Endrew F., 2017, p. 999). Third, characterizing Rowley as shed[ding] light on what appropriate progress will look like in many cases” (Endrew F., 2017, p. 999), the Endrew F. court repeated the passing-grades and promotion indicators in the context of integrated placements, along with Rowley's warning about their typical but not absolute application (Endrew F., 2017, p. 1000, note 2).
In arriving at its the more general substantive standard, the Endrew F. court included some nuanced refinements of individually appropriate progress but did not specify additional categories beyond these two indicators. For example, the court addressed the context, unlike that in Rowley, of “a child who is not fully integrated in the regular classroom and not able to achieve on grade level,” specifying that rather than aiming for passing grades and promotion, the “appropriately ambitious” analog, including “challenging objectives,” should be the reasonably calculated standard for progress (Endrew F., 2017, p. 1000). Next, based on these different contexts, the court rejected the Tenth Circuit's interpretation of Rowley as follows: “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot” (Endrew F., 2017, pp. 1000–1001). Moreover, although repeating the Rowley reminder for judicial deference to the expertise of school authorities, the Endrew F. court added the expectation that school district authorities provide “a cogent and responsive explanation for their decisions that show the IEP is reasonably calculated to enable a child to make progress appropriate in light of (their) circumstances, the substantive FAPE determination (Endrew F., 2017, p. 1002).
As a result of the limited identification in these two Supreme Court decisions and the more extensive treatment in both the lower courts and the professional literature, we used the following broad and approximate categories for analyzing indicators of appropriate progress under Endrew F.: (a) grades and promotion, (b) standardized tests, (c) other tests not covered in the “standardized” category, (d) progress reports, and (e) other evidence of academic, functional, and behavioral advancement. The scope of these categories encompasses (a) the imprecise boundary between standardized and other tests, and (b) the inclusion of overall teacher interpretations, which is attributable to the expansive judicial meaning of “objective” evidence in this context. The next section of this article provides the differentiated professional and legal perspectives for each of these successive categories of “progress indicators” per Endrew F.
Comparison of Professional and Judicial Interpretations
This central section provides separate summaries of the recommendations from the special education literature and the post–Endrew F. rulings for each of the framework categories of progress indicators for substantive FAPE. Thus, it provides a comparison between the professional and legal lenses with regard to the appropriate-progress standard. This comparison addresses the dual dimensions of the best-practice norms and the legally required minimums for the identification and assessment of the indicators for progress—that is, what should versus must the progress indicators be, and how should versus must they be assessed?
For the “should” dimension, the summary is based on the literature of the special education and related fields, such as school psychology and educational measurement. As an overall matter, the six important attributes of effective progress indicators are as follows: The primary use of progress indicators is for formative purposes to guide instruction in relation to IEP goals (D’Agostinio et al., 2020) and to make decisions for changes to IEPs (Ysseldyke et al., 2023). Progress indicators should have strong psychometric properties. That is, for a progress indicator to be maximally effective, it must be reliable and valid. Specifically, the measures used should possess interscorer, test-retest, and internal consistency reliability. Similarly, progress indicators should possess construct validity for both performance and progress (Espin & Deno, 2016). Progress indicators should be time-efficient and easy for the teacher to administer (Deno, 1992; Yell & Busch, 2012). The data gathered from progress indicators are most effective if integrated into instruction so that teachers are receiving frequent feedback about each student's progress. Moreover, Deno (1992) asserted that if progress-monitoring procedures are unduly obtrusive and interfere with teachers’ already busy daily routines, their use becomes less likely. Progress indicators directly sample the behavior of interest. Direct measures of behavior are more precise, efficient, and authentic. For example, researchers have shown that if the behavior of interest is reading, having the student read a passage and counting the number of words read correctly aloud is useful as progress-monitoring data (Espin & Deno, 2016). Many of the direct measures for various target behaviors have extensive support in the research literature (Jenkins & Fuchs, 2012). Progress indicators should provide meaningful data in relation to the IEP's need statements in the present levels of academic achievement and functional performance (PLAAFP). Best-practice PLAAFP statements should serve as an effective baseline for the student's IEP goals and framework for the IEP's specification of specially designed instruction, with the progress indicators’ data serving as the dynamic connectors for this triangulation (Yell et al., 2022). Progress indicators should inform instruction in different ways, thus accounting for multiple categories. For example, general outcome measures are designed to inform the teacher as to the extent that children are progressing in an academic area generally (e.g., reading proficiency or math proficiency). Other measures, such as mastery-monitoring indicators, may inform the teacher's instruction about what areas of skill development are a problem for a student (Shinn, 2013).
For the “must” dimension, the summary is based directly on the recent analysis of post–Endrew F. decisions that was published in the legal literature (Zirkel, 2022). As specified in more detail in that article, within the total pool of 461 lower-court decisions that cited Endrew F. within the 5-year period since its issuance on March 22, 2017, the analysis was limited to the 58 (13%) decisions that met both of these selection criteria: (a) contained a ruling that applied the Endrew F. substantive standard for FAPE and, in doing so, (b) identified one or more progress indicators within the foregoing broad categorical framework. The article, which is posted at perryzirkel.com, includes the search method and a chart of the 58 rulings. Overall, the analysis found that the outcomes distribution of these 58 substantive FAPE rulings was 88% in favor of the school district and 12% in favor of the parent.
Moreover, these rulings largely did not rely on the more nuanced distinctions in the Endrew F. decision. For example, only three of these rulings expressly referred to the distinction between inclusive and segregated settings, in each case to support the substantive FAPE ruling in favor of the district (e.g., Rosaria M. v. Madison City Board of Education, 2018). Likewise, only three cases referred to Endrew F.'s “cogent and responsive” qualification to judicial deference to school authorities, with only one of them being in favor of the parent (Gaston v. District of Columbia, 2019). Indeed, in E.P. v. North Arlington Board of Education (2019), the court applied a harmless-error approach to defeat the parents’ lack-of-cogency claim, concluding that even if the district's justification was inadequate, the parents failed to prove resulting requisite substantive harm to them or their child.
Similarly, the courts were generally holistic and relatively relaxed rather than particularistic and rigorous in their approach to progress indicators. The relative frequency and weight of the progress indicators within each of the five categories is reported next in the comparative summaries under the subheadings “Professional Recommendations” and “Judicial Rulings.” These shorthand terms here respectively represent the “should” of the summarized best-practice recommendations from the special education literature and the corresponding “must” of the summarized 58 judicial rulings that identified and interpreted indicators of progress in applying the Endrew F. standard for substantive FAPE.
Grades and Promotion as Progress Indicators
Professional Recommendations
Grades should (a) focus solely on student proficiency, (b) adhere to clearly described performance standards, (c) be consistent from teacher to teacher, and (d) communicate useful and concrete information to students and their parents (O’Connor, 2009). However, in the absence of specific grading policies or on the basis of their own professional views, teachers often apply informal and idiosyncratic adaptations to that do not fulfill these purposes and, thus, lead to validity problems (Brookhart, 1991; Jung & Guskey, 2012). Moreover, in recent decades, researchers have found a continuing trend of grade inflation in secondary schools (Gershenson, 2018; Goodwin, 2011; Sanchez & Moore, 2022). The “softer” side in the elementary grades and the “positive” orientation of special education similarly cause grades to be questionable indicators of actual progress in relation to state performance standards. For example, Jung and Guskey (2010) pointed out the widespread misperceptions among special educators that (a) students with IEPs may not receive a failing grade and (b) higher grades equal higher self-esteem. To improve the fit between fairness and accuracy of grades in the special education context, their recommendations include the use of indicators that separately address “product, progress, and process goals” (Guskey & Jung, 2009, p. 60).
The overlapping progress indicator of promotion is similarly subject to careful assessment as a progress indicator. The inconsistent shifting between social promotion and retention, often without a solid research base and careful application, is one overall reason (e.g., Frey, 2005). The compounding contributing factor is the “cloak of concealment that is draped over the issue of retention and special education” (Gaffney & Zaimi, 2003, p. 3). For special education students, after being determined eligible and receiving an IEP, it would not be surprising for research to reveal that advancement through the grades is often relatively automatic or at least not carefully considered. For these reasons, grades and promotion are not suggested as progress indicators.
Judicial Rulings
In clear contrast, grades were the most frequent progress indicators in the 58 post–Endrew F. substantive FAPE court rulings (Zirkel, 2022), with almost no express consideration of the notable limitations of this measure. More specifically, the courts identified grades as a decisional factor in approximately half of these rulings. Promotion was an accompanying factor in a handful of these cases, including one in which passing grades effectively superseded nonpromotion (Rosaria M. v. Madison City Board of Education, 2018). The only limitation that the courts addressed, and then only with two cases that both cursorily rejected this claim, was grade inflation. For example, in Parker C. v. West Chester Area School District (2017), the court deferred to the hearing officer's finding that the student's grades were not inflated despite the various testing accommodations that he received. Reflecting the lack of rigorous critical assessment, the basis for this conclusion was the court's reliance on the testimony of the students’ teachers that his grades were “‘totally right in the mix with the rest of the students’” (Parker C., 2017, p. 11). The limited, only other exception to the lack of critical consideration was a Fifth Circuit decision that, relying on the aforementioned reminder in Rowley and Endrew F. that passing grades are not an automatic or absolute indicator of the requisite progress, took a nondeferential approach to the district's evidence purporting to show the student's academic advancement and achievement (D.C. v. Klein Independent School District, 2021).
The relatively frequent use of grades and, to a lesser extent, promotion is not surprising in light of its identification in Rowley and Endrew F., although most of these court rulings did not incorporate the aforementioned integration distinction that Rowley mentioned and that Endrew F. reinforced. The exceptions are very limited. For example, in F.L. v. Board of Education (2018), the Second Circuit briefly mentioned the Endrew F. admonition that the IEP “need not include ‘grade-level advancement’ if that kind of progress is not ‘a reasonable prospect’ for the particular child” (p. 40).
The absence in these court rulings of the best-practice standards for grades and promotion is likely attributable to filtering factors endemic to the judiciary, including (a) the holistic approach of the courts in IDEA cases, deferentially leaving the microlevel fact-finding and other trial-like features, such as the assessment of expert witnesses and credibility more generally, to due-process hearing officers; (b) the concomitant deference to school authorities, which Rowley and Endrew F. recognized and reinforced; (c) the general imbalance between parents and school districts for attorney representation and expert witnesses in IDEA litigation; and (d) the courts’ much broader conception of “objective” evidence than prevails in the education profession.
Standardized Tests as Progress Indicators
Professional Recommendations
Standardized tests refers to any tests that are administered, scored, and interpreted in a consistent or standard manner across different times and places (Brookhart & Nitko, 2019). Some standardized tests are norm-referenced measures of achievement, with those used in special education fitting in two groups: (a) individual or group-administered tests focused on student achievement in relation to national, state, or local peers (such as I-Ready, Key Math, and the Woodcock-Johnson achievement tests; Ysseldyke et al., 2023) and (b) group-administered tests focused on district and school accountability in relation to state standards, most prominently being the proficiency assessments mandated by the No Child Left Behind Act and its successor, the Every Student Succeeds Act. The use of each of these types of normed standardized tests warrants notable caveats. For the first group, the use of percentile ranks or grade-equivalent scores is a prime example. For a child whose percentile rank remains the same from one annual IEP to the next one, the parent may perceive the child as not having made any progress in the applicable measurable goal; yet, depending on the severity and complexity of the child's disabilities and other relevant considerations, including the sensitivity of the test, the lack of change in the percentile rank may mean meaningful progress rather than stagnation. The common alternative of grade-equivalent scores may pose even more pronounced problems in terms of validity and transparency, causing several major professional organizations, including the American Psychological Association, the International Reading Association, and the National Council on Measurement in Education, to recommend against the use of grade-equivalent scores in making educational decisions (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, 1985; Smith, 2015). Thus, norm-referenced standardized tests are questionable progress indicators for determining FAPE (Fuchs & Deno, 1994; Ysseldyke et al., 2023).
The mandated state proficiency assessments are even more questionable because they are designed for the purpose of district and school accountability, not individual student progress, particularly in the specialized context of IDEA FAPE. Such concerns should not eliminate consideration of either type of normative tests as progress indicators but instead should merit careful attention to the particular test instrument, the goal areas at issue, and the relative weight of other, multiple measures of progress.
An alternative standardized approach is general outcome measurement (GOM), which, when used for frequent progress monitoring via the use of curriculum-based measurement (CBM), has been characterized as “one of the most powerful evidence-based interventions currently available” (Shinn, 2013, p. 173). A commonly used GOM-CBM progress indicator is oral reading fluency, which requires a student to read aloud connected text that is selected to represent end-of-the-year grade-level material (Ysseldyke et al., 2023). Commercial GOM-CBM indicators include AIMSweb, DIBELS, and Fastbridge. Teachers can also create standardized GOM-CBM progress indicators (Austin & Filderman, 2020; Deno, 1992; Lemons et al., 2014).
Approximately 45 years of school-based research shows that when used in a formative manner to collect student progress data and make instructional decisions based on the data, GOM-CBM results in increased achievement (Espin et al., 2012; Fuchs & Fuchs, 1986; Hattie, 2009; Reschly et al., 2009; Stecker et al., 2005). The multiple CBM progress indicators are now available in core basic skills areas, such as reading, math, and writing, and also content subject areas, such as algebra and social studies (Espin et al., 2012; Foegen et al., 2007). Some of these CBM progress measures have accompanying normative data.
The steps for teacher use of GOM-CBM progress indicators are as follows: (1) select the appropriate probe, such as words read aloud in 1 min; (2) collect and score the data using this indicator across time; (3) graphically display the scores; and (4) assess the display and make instructional decisions (Berkely & Riccomini, 2017; Deno, 1992). Using GOM-CBM progress indicators to evaluate students’ growth toward their goals and analyzing the data to determine if students’ progress is sufficient to meet their annual goals is clearly a preferred method of monitoring student progress.
Judicial Rulings
In the 58 court decisions (Zirkel, 2022), it was not surprising, in light of their general use and acceptance, that standardized tests were the most frequently identified progress indicators second to grades or promotion. The identification of GOM-CBM measures, such as AIMSweb, at approximately the same frequency level as the more traditional standardized achievement measures, such as the Woodcock-Johnson tests, aligned with professional recommendations, but critical assessment of the limitations of such instruments was again absent. Conversely, the even higher relative frequency of state proficiency tests was not at all aligned with best-practice concerns, such as their validity for this purpose. The two limited exceptions among the 58 judicial rulings were deferential to the district. First, in G.D. v. Swampscott Public Schools (2020), the parents pointed to the student's lack of improvement on the state proficiency exams, but the First Circuit agreed with the hearing officer and the federal district court that the “‘slow gains’” (p. 12) revealed by the informal, qualitative measures, which included teacher observations and curriculum-based assessments, was sufficient to meet Endrew F.'s “substantive” standard. Second, in D.H. v. Fairfax County School Board (2021), the federal district court found the student's failure to pass the state proficiency test in reading to be concerning but nevertheless concluded on the basis of other circumstances, including the student's satisfactory grades and progress reports, that the IEP met the Endrew F. standard.
Finally, presumably based on expert testimony, a few of the court rulings that identified traditional standardized test scores as a progress indicator downplayed the role of declining or stagnant percentiles or standard scores. For example, in Mr. and Mrs. G. v. Canton Board of Education (2019), the court cited testimony from the parents' expert neuropsychologist (likely upon cross-examination) in the following reasoning as part of its ruling for the district: The fact that some of [the student's] scores on these standardized tests decreased does not necessarily mean [she] was regressing rather than simply experiencing less growth than her peers. Comparing these scores across years is also difficult given the “complex nature of the Student's profile and the inconsistency of her performance.” (p. 15)
Other Tests as Progress Indicators
Professional Recommendations
Although the boundary between standardized tests, whether normative or not, and other tests is not a bright line, other tests commonly used as progress indicators for FAPE include mastery-monitoring measures. These tests can be either standardized, such as the progress-monitoring system used in Let's Go Learn, or nonstandardized, such as teacher-made unit tests. Some of the standardized mastery-monitoring tests have manuals that provide information useful for assessing their validity and reliability, although independent published research is often limited. The teacher-made mastery-monitoring tests do not have known psychometric characteristics. As a result, Fuchs and Deno (1991) concluded that “the accuracy and meaningfulness of most measures used within mastery measurement remains largely unknown” (p. 493).
Mastery-monitoring progress indicators should answer the following teacher question: “Did the student learn what I taught this week?” (Shinn, 2013, p. 174). Unlike a norm-referenced assessment, the focus of a mastery-monitoring indicator is to evaluate students' performance against a criterion body of knowledge or skill (Ysseldyke et al., 2023). According to an early proponent of mastery monitoring, “the basic idea is as old as education itself” (Tucker, 1985, p. 199) and consists of three primary features: (a) The assessment or progress indicators are drawn from the student's curriculum, (b) a student is tested repeatedly over time, and (c) the information from the indicators is used in making instructional decisions. Using a hierarchical division of curriculum into a set of basic subskills, if a student performs to mastery on a subskill, the teacher then moves on to teaching and testing the next subskill (Tucker, 1987). In addition to monitoring a student's progress, mastery monitoring is useful for conducting error analysis of a student's performance to determine the most appropriate place to begin instruction, to design the interventions to remediate the errors, and to determine whether the interventions have been successful (Austin & Filderman, 2020).
Yet, the limited empirical research on mastery-monitoring tests warns against overreliance or incautious use (Fuchs & Deno, 1994; Shinn, 2013). Moreover, there are serious questions about the central assumption of mastery monitoring that demonstrating mastery on a series of subskills or short-term objectives, each assessed in isolation, accumulates into broad-based competence (Jenkins & Fuchs, 2012).
Judicial Rulings
The 58 court rulings identified other tests much less frequently than and typically in tandem with standardized tests. Perhaps because courts seemed to consider them as supplementary standardized tests or subsidiary within the next two identified indicators, these other tests, such as the criterion-referenced tests within the Wilson Reading System, received negligible critical examination.
Progress Reports as Progress Indicators
Professional Recommendations
The framework for progress reports under IDEA is the requirement in the most recent statutory reauthorization that the IEP include a description of “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]). In the development of the resulting 2006 regulations, commenters reflected professional best practice in their recommendations that progress reports should (a) include information on the extent to which students’ progress is sufficient to enable them to achieve their goals by the end of the year, (b) be provided to parents in a timely enough manner to allow changes in the IEP if the student's goals are not likely to be met by the end of the year, (c) include reasonable detail and use specific progress indicators to describe the extent to which students are making progress on each of the annual goals in their IEPs, and (d) be in measurable terms that are not vague or subjective (IDEA regulations commentary, 2006, p. 46664). Yet interestingly, the final regulations merely repeated the statutory language, leaving any additions to state laws and local practice.
More directly reflective of professional best practice, the literature recommends that progress reports should (a) provide the progress indicators’ data specific to the respective IEP goals, (b) explain these data clearly for both the service providers and the parents, and (c) use these data to predict whether the student will meet their goals (IRIS Center, 2019).
A key qualifier for progress reports is high frequency. For example, Shinn (2013) asserted that “frequent progress monitoring is one of the most powerful tools in educators ‘intervention toolboxes,’ and the single most powerful teaching variable that they can control” (p. 173). More specifically, Yell and his colleagues recommended that IEP teams collect, analyze, and report students’ progress on the indicators on an at-least-monthly basis (Yell et al., 2022; Yell & Busch, 2012). Furthermore, the type of progress indicator data that will be collected should be included in a student's IEP, and the agreed-upon system should be implemented, analyzed, and reported on as specified.
Judicial Rulings
The 58 court rulings specifically identified progress reports in determining substantive FAPE almost as frequently as standardized tests but less often than might be expected by this indicator's express role as a required, progress-specific element of the IEP. Yet, unlike the professional literature, the previously quoted IDEA framework is so limited in scope and unspecific in rigor that is not surprising that progress reports do not play a preeminently powerful judicial role either quantitatively or qualitatively, especially compared with the next factor.
Other Evidence of Progress
Professional Recommendations
The special education literature identifies various other indicators of student academic, functional, or behavioral progress, including office disciplinary referrals (Irvin et al., 2006), applied behavior analysis (Wolfe et al., 2023), functional behavioral assessment (Crone et al., 2015), task analysis (Chezan & Drasgow, 2023), and data-based decision-making (MacMaster et al., 2022). All data-based decision-making systems share the following characteristics: (a) Data are collected, (b) data are displayed, (c) data are interpreted, and (d) data are used to make instructional decisions (MacMaster et al., 2022; Wolfe et al., 2023). Using such data correctly to monitor progress will usually result in academic and functional gains by students.
The professional literature does not expressly compartmentalize the interpretations of teachers and other certificated personnel as a separate progress indicator, instead inferring that these judgments are integral in arriving at or assessing student progress. This inference is reinforced by the central role and mandated membership of the team that develops and implements a student's IEP. This group is responsible for the development of the IEP and, thus, the reasonable calculation of appropriate progress. Moreover, in its list of required members, the IDEA regulations includes private experts only in the catchall item for additional individuals with special expertise “at the discretion of the parent or the [school district]” (34 C.F.R. § 300.321[a][6]).
Yet, in general, the social status of physicians, professors, and advanced specialists, such as neuropsychologists, tends to be much higher than that of teachers and other certificated school personnel. This societal hierarchy tends to leave public school educators with the sense that if an IDEA FAPE dispute entered the litigation arena, they would be at a distinct disadvantage in terms of credentials and credibility in comparison to any testifying parent’s private specialists.
Indeed, they may perceive that such outsiders exclusively qualify for or ultimately win in the role of “expert witness,” which extends beyond factual evidence to providing opinion evidence.
Judicial Rulings
Although the 58 post–Endrew F. substantive FAPE court rulings occasionally mentioned various other indicators, such as behavioral records and work samples, their most frequently identified progress indicator in this catchall category and—more importantly—the one that they relied on more strongly across all of the categories was the testimony of teachers and other district professional personnel, whether offered to interpret other progress indicators or serving as a separate indicator (Zirkel, 2022). Part of this preeminence was the institutional nature of courts, in which witnesses serve as the primary source of evidence. More important, though, is the particular role of teachers and other district professional role in IDEA cases due to the Rowley–Endrew F. emphasis on judicial deference to school authorities. Contrary to their common perceptions of themselves, teachers and other public school professionals merit special status as expert witnesses based on not only their state certification in their field but also their ongoing familiarity with the individual child in the primarily pertinent context. When the issue is educational compared with, for example, medical, as it is in substantive FAPE cases, the district professional is often at an advantage for one or both of these two key criteria compared with outsiders who may have more advanced degrees or other signs of prestige.
As an example of the first criterion, the court in C.B. v. Smith (2019) accorded more weight to the fourth-grade teacher than to the parents’ expert, a psychologist with a doctorate, with regard to the child's academic progress in the context of a full-sized general education class. As an example of the second criterion, the court in T.M. v. Quakertown Community School District (2017) noted that the district witnesses had seen the student for 1,440 hr, whereas the parents’ expert had observed him for 2 days during the 2 years in question. As the court in another case explained, “Giving more weight to the testimony of witnesses who spent far more time with the [child] is perfectly reasonable” (S.M. v. District of Columbia, 2020).
Nevertheless, the influential weight of district professional personnel's testimony is not without limits, especially if clearly contradicted by other progress indicators and combined with other parent-favorable factors. For example, in Preciado v. Board of Education of Clovis Municipal Schools (2020), the court found that the record, including other progress indicators, provided reasonable support for the hearing officer's conclusion that the testimony of the student's special education teachers was not credible. Such exceptions to the presumption in favor of district witnesses occasionally even arise counter to the separate judicial deference accorded to hearing officer credibility determinations. For example, in S.S. v. Board of Education of Harford County (2020), the court reversed two of the three hearing officers' substantive FAPE rulings that had been in favor of the district for its corresponding three successive IEPs. Although relying on a combination of circumstances that focused on the child's serious—including self-injurious—behaviors, the court specifically concluded that the actual behavioral data clearly disproved rather than reasonably supported the district witnesses’ sufficient-progress testimony.
Implications for Practice and Research
This dual, differentiated analysis reveals a severe discrepancy between the professional recommendations and the judicial rulings specific to the progress indicators for substantive FAPE as a result of Endrew F.'s refinement of the Rowley standard. The reasons for this difference are largely attributable to the substantive FAPE distinction between the normative lens of the profession, which is oriented to evidence-based best practices that aspire to optimize the outcomes of special education for each eligible student, and the legal lens of the courts, which is oriented to applying the refined standard specified in Endrew F. that continues to require what is reasonable compared with what is optimal. This distinction between assuring that the IEP at least meets the floor compared with the profession's aspiration for it to reach the ceiling is sensible and salutary just as long as the special education literature avoids the confusion of undifferentiated fusion as to the height of the legal floor. The focus then becomes optimizing the shared interest among practitioners, professors, and parents in achieving the aspirational level rather than litigating about the adequacy level.
It is likely that many writers and readers of the special education literature may not fully realize the various pertinent institutional features of the courts. First, the courts are not only congested but also generalists. As the First Circuit explained, federal judges, as distinguished from “trained pedagogues,” are “‘generalists with no expertise in the educational needs of children [with disabilities]” (Lessard v. Wilton Lyndeborough Cooperative School District, 2008, p. 24). Second, the special structure of the IDEA provide for more specialized expertise in fact-finding and legal conclusions via due-process hearings, thus delegating to the courts—with the narrow exception of “additional evidence” (20 U.S.C. § 1415[i][2][C][ii])—an entirely reviewing rather than a trial function. Third, although the bulk of adjudicative dispute resolution under IDEA is at the lower administrative levels, including settlements, these judicial rulings constitute the framework of case law that, via the doctrine of judicial precedents, fills in the interstices of Endrew F. Fourth, courts are oriented to procedural issues, and their only way to receive and consider the specialized professional nuances for substantive FAPE is via knowledgeable witnesses. Yet, contributing to the imbalance in favor of defendant districts, the Supreme Court ruled that in the absence of unambiguous authorization in IDEA, prevailing parents are not entitled to recover the costs of expert witnesses (Arlington Central School District Board of Education v. Murphy, 2006). Fifth, the confirmed rather than revised part of the Rowley “substantive” standard of FAPE is its foundational limitation to reasonable calculation compared with actual progress, with the reinforcement in Endrew F. of the IEP-formulation timing of the snapshot approach. Finally, within and beyond IDEA, the federal judiciary—as evident not at all exclusively by the current, changed composition of the Supreme Court—is less and less likely to engage in activism in the direction of adding to applicable legislation, leaving such matters instead to Congress.
These various institutional features combine to explain the two overarching findings of discrepancy: (a) The vast majority of post–Endrew F. court rulings specific to substantive FAPE do not specifically identify any progress indicators, and (b) the remaining minority of approximately 58 judicial rulings are rather cryptic and uncritical compared with the special education literature. For example, starting with a very different conception of “objective” indicators, courts tend to follow the lead of Rowley and Endrew F. to most frequently rely on passing grades and promotion without careful weighting of the accuracy of these overlapping progress indicators. For a court's substantive FAPE ruling that recognized the limitations of grades, one has to go back well before Endrew F. Specifically, in Montgomery Township Board of Education v. S.C. (2005), the Third Circuit affirmed the ruling that the defendant district had not met the “substantive” standard for FAPE, citing evidence from more than one source, including the student's third-grade teacher, that (a) the student received a high degree of extra assistance from his parents, (b) the student's day-to-day performance was a better indicator than the student's standardized test scores, and (c) “in order to boost [the child's] self-esteem, his previous grades were based largely on his effort, rather than his achievements” (p. 537).
The failure to distinguish between the professional recommendations in the special education literature and the parallel, but significantly lower, legal requirements in the post–Endrew F. judicial rulings for indicators of progress poses problems of not only accuracy but also integrity. As explained in more detail elsewhere (Zirkel, 2020), the integrity dimension includes whether the authors make transparent that the perspective for their legal analysis is advocacy rather than impartiality. Such academic transparency ultimately fosters trust in not just the information but in the practitioners’ professional judgment in evaluating and using this information. It also fosters informed debate among scholars and decisions by policy makers in improving both law and practice.
For those school administrators and attorneys who are well aware of the discrepancy but inflate the level of legal requirements as a way to incentivize school practitioners to “up their game,” the effect is to diminish the professional status of teachers and other certificated personnel. The alternative for administrators and attorneys of being transparent and choosing to “just clear the bar” of legal requirements abandons the ethics of the profession, the collaboration of colleagues within and beyond the district, and the trust of parents and other stakeholders. Moreover, they increase the odds of litigation and risk of losing based on the inevitable imprecision in applying this individualized-threshold bar, including the interactive variance of attorneys, witnesses, and judges. Obviously, the more effective path, once clearly differentiated, is to clearly avoid legal transgressions and optimize effective outcomes. Researchers have clearly demonstrated that using progress indicators produce reliable, valid, and instructionally useful data (see National Center on Intensive Interventions, n.d.). These data can enhance teachers' instructional planning, which, when used correctly and in combination with evidence-based teaching practices, will result in meaningful student progress. Such progress will meet not only the letter but the spirit of the law with truly “cogent and responsive explanation[s]” for parents and other stakeholders (Endrew F., 2017, p. 1002). Additionally, the correct use of evidence-based progress-monitoring indicators will most likely result in school personnel meeting the Supreme Court's recommendation that “the IEP must aim to enable the child to make progress. After all the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” (Endrew F., 2017, p. 999).
For academicians, because they account for most of the special education literature, a bifocal lens that clearly separates objective and disciplined analysis of Endrew F. and its lower-court progeny from the aspirational and advocacy norms of the profession is particularly important.
Our analysis involved a synthesizing approach, which was based on the individual expertise of the authors, and its confined scope, which did not extend, for example, to the role of hearing officers and lawyers. Rather, the analysis is intended merely to provide an example of the value of differentiation and collaboration. The overall goal is to stimulate recognition and reform for the benefit of the education field and the students it serves.
More specifically, we invite further research that examines the role of progress indicators in FAPE at the school and district levels as well as hearing officer and court levels. This research should be qualitative, including perceptions of parents and practitioners, as well as quantitative, including determining the frequency and outcomes of settlements. Doing so in collaboration between the representatives within the healthy variance of the respective professional special education and the impartial legal perspectives, as this article illustrates, can be edifying for all interested individuals.
Footnotes
Authors' Note
Dr. Zirkle was primarily responsible for the legal sections and Dr. Yell had primary responsible for the professional recommendations.
For further information on legal issues in special education see perryzirkel.com.
Manuscript received August 2022; accepted February 2023.