The recent decision in the case of L.H., a now 15-year-old boy who lives in Tennessee and has Down’s Syndrome, affirms the importance of FAPE in the LRE- that is, Free Appropriate Public Education in the Least Restrictive Environment. Under the Individuals with Disabilities in Education Act (IDEA), students who have disabilities should be educated alongside their peers without disabilities to the maximum extent appropriate. )
From kindergarten through second grade, L.H., a now-15-year-old boy who has Down’s syndrome, was placed in the general education classroom and received additional special education services. Although he was not keeping pace with his grade-level peers, LH continued to make academic progress in the general education setting.
One judge in the district court noted that, “What the IDEA implies, the case law makes explicit: a child need not master the general-education curriculum for mainstreaming to remain a viable option. Rather, the appropriate yardstick is whether the child, with appropriate supplemental aids and services, can make progress toward the [ ] IEP[’s] goals in the regular education setting.” L.H. #1, 2016 WL 6581235, at *14–15
Despite his progress, the IEP team suggested changing L.H.’s placement to a Comprehensive Development Classroom (CDC) that would consist exclusively of other students with disabilities. L.H.’s parents disagreed with this placement. They contended that the CDC “did not include a regular curriculum, set educational expectations far too low for L.H.’s capabilities, was not peer reviewed or tied to state standards, provided no report cards or homework, and had certain teachers in uncertified roles” (L.H. v Hamilton County Department of Education, Nos. 17-5989, 18-5086, 2018 WL 3966517, (E.D. Tenn. Aug. 20, 2018)). Instead, L.H.’s parents wanted him to remain mainstreamed with support and his peers and not change schools.
During second grade, L.H. stayed put in the mainstream school. He continued to struggle and, according to the teacher and special education teacher, began acting out. As a result, the two teachers modified his coursework and isolated him toward the back of the room. Although the teachers claimed his behavior improved afterward, this kind of isolation is contrary to the intention of Least Restrictive Environment.
Later, the school district itself contended that L.H. was not mainstreamed while at the back of the classroom because he was “‘at his own table in the back of the classroom’ and treated him so differently from the general student population that he ‘was essentially in a classroom of one even though he was physically located in the gen-ed classroom’” (L.H. v Hamilton County Department of Education, Nos. 17-5989, 18-5086, 2018 WL 3966517, (E.D. Tenn. Aug. 20, 2018)).
At a subsequent meeting, L.H.’s school told his parents that he had “hit a wall” and again suggested the Comprehensive Development Classroom placement. Despite parental objection, the school changed L.H.’s placement to the CDC for third grade (which would have begun the following year).
The instructional differences between L.H.’s general education placement and the comprehensive development classroom were staggering. The new IEP resulted in a 40% reduction of instruction time and functionally ensured that L.H. would have very limited interaction with his peers who did not have disabilities.
At one point, one school district employee “testified that L.H. would receive instruction in math and handwriting through his physical education (gym) class and, though conceding that the physical education teacher is not a state accredited math teacher, she insisted that the physical education standards require higher order thinking skills such as math” (L.H. v Hamilton County Department of Education, Nos. 17-5989, 18-5086, 2018 WL 3966517, (E.D. Tenn. Aug. 20, 2018)).
L.H.’s new IEP also did not tie his academic goals to regular education standards. The program in the Comprehensive Development Classroom is not peer-reviewed, as is required by IDEA, did not provide report cards or track educational progress, and did not prescribe any homework.
Rather than place L.H. in the suggested Comprehensive Development Classroom, his parents unilaterally removed him, placed him in a private Montessori school and sued for reimbursement. In Tennessee, parents may be awarded reimbursement if a state judge finds that the public school violated the IDEA and the private school is appropriate under IDEA (Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)).
The school district suggested in court that reimbursement should be denied because L.H.’s parents could have invoked stay-put, but were instead indignant because the school district suggested part-time placement in a Contained Development Classroom. However, the appellate judge later stated that, “Maybe it is true that L.H.’s parents were indignant at that “suggestion,” which was obviously more than a suggestion, but they also had reason to be concerned that those teachers—who had backed up that “suggestion” by insisting that they could not and would not provide the necessary support services to L.H. at Normal Park—were unwilling to teach L.H. under any circumstances. Moreover, as already discussed, these Normal Park teachers were openly unwilling or unable to properly engage in the process of mainstreaming L.H., rather than isolating and removing him when it became challenging” (L.H. v Hamilton County Department of Education, Nos. 17-5989, 18-5086, 2018 WL 3966517, (E.D. Tenn. Aug. 20, 2018)).
A lower court found that the public school had violated LRE, but denied reimbursement, finding the Montessori school into which parents placed LH was too “unstructured” and therefore inappropriate placement.
On appeal, the court found that the lower court, “Appears to have rejected [the CDC], at least in part (though a critical reading reveals it to be much more than merely in part) because the court rejects the Montessori approach in general. Under such a view, no Montessori school is qualified to teach a student with Downs Syndrome. That cannot be” (L.H. v Hamilton County Department of Education, Nos. 17-5989, 18-5086, 2018 WL 3966517, (E.D. Tenn. Aug. 20, 2018)).
At one point, the school took the position that mainstreaming isn’t about physical location, but the academic methodology, meaning that special ed students are so different from classmates socially and intellectually that they are already “isolated” even if they are in the same classroom (i.e. special ed students could never be “mainstreamed”. ) The court rejected this out of hand.
The judge noted that “this is really an argument against ‘mainstreaming’ as a concept because HCDE believes it is impossible, impractical, or counterproductive” (L.H. v Hamilton County Department of Education, Nos. 17-5989, 18-5086, 2018 WL 3966517, (E.D. Tenn. Aug. 20, 2018)).
Both L.H.’s parents and the public school appealed the decision. The appellate court affirmed the lower court’s finding that the public school had violated LRE, and reversed the lower court’s decision to deny L.H.’s parents reimbursement. In reversing, the Circuit court noted that the reason the trial court denied reimbursement because “at least in part the court rejects Montessori approach in general” which “cannot be”. In fact, LH was mainstreamed all the time at the Montessori school, followed a curriculum tied to state standards, and had a teacher and 1:1 aide.
While this is a Tennessee case, this is another example of courts affirming FAPE in the LRE, with LRE being a significant part of school’s obligation under IDEA. Sticking all the special education students together in one room – or isolating them in the back of the room away from their peers for that matter – is not LRE.