IEP
Goal of Inclusion in Regular Classroom 80% of Time Satisfied LRE Requirement
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The U.S. Court of Appeals for the Second
Circuit (CT, NY, VT) has ruled that a school district’s individualized
education program (IEP) that called for gradually increasing a special
education student’s placement in a regular classroom from 60% to 80% of the
time satisfied the least restrictive environment (LRE) requirement of the
Individuals with Disabilities Education Act (IDEA).
P., a student with Down Syndrome,
attended Anna Reynolds Elementary School (ARES) in Newington, Connecticut. In
the spring of 2004, Newington School District’s (NSD) behavioral consultant
informed P.’s parents that it was becoming difficult to keep P. in a regular
classroom because of the widening ability gap between him and his peers and
behavioral problems, but P.’s parents wanted him to remain in a regular
classroom as much as possible. At the meeting of NSD’s IEP team, known as the
“Performance and Planning Team” (PPT), to discuss plans for the 2004-2005
school year, P.’s parents requested their son be in a
regular classroom at least 80% of the time. Instead, the IEP provided that P.
be in the classroom for 60% of the school day, with “pull-out” services for
occupational and speech therapy. The 2005-2006 IEP called for increasing the
regular classroom time from 60% to 74%. In June 2005, the parents requested a
due process hearing to challenge the 2004-2005 and 2005-2006 IEPs. In April
2006, the PPT mandated that P. be placed in a regular classroom 80% of the
time. The hearing officer found that the 2004-2005 IEP failed to comply with
IDEA in part because there was too much division between regular and special
classroom time. However, she found the 2005-2006 IEP complied with IDEA because
it called for the gradual increase of regular classroom time to 80%, and in
fact, “it was clear that P. was included with non-disabled students for around
73% of the time in 2005-2006.” The parents appealed to the federal district
court, which upheld the hearing officer’s decision.
The Second Circuit affirmed the lower court’s
decision. The appeals court focused on the parents’ challenge that P.’s IEP was
not “reasonably calculated to enable the child to receive educational benefits”
in the “least restrictive environment.” It then spelled out the proper test for
determining LRE, pointing to a “two-pronged approach adopted by the Third,
Fifth, Ninth, Tenth, and Eleventh Circuits [that] provides appropriate guidance
without ‘too intrusive an inquiry into the educational policy choices that
Congress deliberately left to state and local school officials.’” Under the
test, courts must consider: 1) whether education in the regular classroom, with
the use of supplemental aids and services, can be achieved satisfactorily for a
given child; and 2) if not, then whether the school has mainstreamed the child
to the maximum extent appropriate. The Second Circuit cautioned courts in
determining whether an IEP satisfies the LRE standard to “engage in an
individualized and fact-specific inquiry into the nature of the student’s
condition and the school’s particular efforts to accommodate it, ever mindful
of the IDEA’s purpose of educating children with disabilities, to the maximum
extent appropriate, together with their non-disabled peers.” Applying the test
to this case, the Second Circuit concluded “the evidence produced during the
administrative proceeding demonstrates that education in the regular classroom,
with the use of supplemental aids and services, could not be achieved satisfactorily
for the 2005-2006 school year.” Turning to the second prong of the test, it
found in light of P.’s need for some specialized instruction outside the
regular classroom, he was mainstreamed to the maximum extent appropriate. The
appeals court rejected the parents’ argument that courts should adopt the
presumption that a student should be placed in a regular classroom 80% of the
time, saying “that mandating such a percentage in every case would be
inconsistent with the IDEA’s directive that schools take an individualized
approach to each student.”
This
article was reprinted with permission from the NSBA’s Legal Clips service.