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The Second
Circuit Court of Appeals addressed the long standing issue and adopted
a standard for determining what constitutes the least restrictive
environment (LRE) under the statutory obligations of the Individuals
with Disabilities Education Act (IDEA). The Court affirmed the granting
of summary judgment to the defendants Newington Board of Education
holding that the school complied with providing Plaintiff P. educational
services as mandated by the IDEA.
The
crux of this critical decision rested on question of whether the
circuit court would adopt a standard for what constitutes LRE that
has been previously adopted by other circuits. The court opted to
adopt a "flexible, fact-specific analysis considering whether, with
the aid of appropriate supplemental aids and services, education
in the regular classroom may be achieved, and, if not, whether the
school has included the student in regular classes, programs, and
activities to the maximum extent appropriate."
Plaintiff,
who brought a two-year challenge against the Newington school system,
carried diagnoses of Down syndrome, a hearing impairment and other
significant health problems. After receiving an Individualized Education
Plan (IEP) for the 2005-2006 academic year, P. requested an administrative
hearing to challenge the 2004-2005 and 2005-2006 IEP's contending
that P. was not sufficiently integrated into the regular classroom.
The administrative
hearing officer held that the 2004-2005 IEP did not comply with
IDEA, but that the 2005-2006 IEP was in compliance. It was determined
that the 2004-2005 IEP was deficient because services provided for
P. were left to the discretion of the school authorities and because
P.'s behavioral issues were not appropriately addressed. As a "compensatory
education" remedy the hearing officer required that the school system
provide P. with a specialist experienced in placing children with
mental retardation in regular classes. The hearing officer noted
that prior to the hearing the Board hired a specialist who appropriately
met the requirements outlined by the hearing officer.
P.'s
parents appealed to the United States District Court of Connecticut
arguing the decision that the 2005-2006 IEP was sufficient and the
sufficiency of the remedy awarded for the deficiencies in the 2004-2005
IEP. The district court affirmed the hearing officer's decision
and awarded P. partial attorneys' fees and costs. P.'s parents have
maintained their desire for P. to remain in the regular classroom
at least 80% of the time; however, P.'s IEP for 2004-2005 provided
that P. would be in the classroom for 60% of the school day, with
"pull-out" services for occupational and speech therapy. In February
2005, P. obtained a psychological evaluation by Dr. Kathleen Whitbread,
who reported that P. had limited communication skills and also suffered
from disruptive and problematic behaviors. Dr. Whitbread recommended
that P. work towards gradually increasing P.'s regular-classroom
time to 80% and the 2005-2006 IEP provided that P. would spend 60%-74%
of the school day in the regular classroom.
This
Court noted that the purpose of the IDEA is to provide federal assistance
for education of children with disabilities and requires that states
receiving such assistance provide disabled students with a "free
appropriate public education" in "the least restrictive environment."
The court then adopted the two-pronged test for determining whether
an IEP places a student in the least restrictive environment. Under
the first prong, a court should consider first, "whether education
in the regular classroom, with the use of supplemental aids and
services, can be achieved satisfactorily for a given child." Under
the second prong the court must decide, "whether the school has
mainstreamed the child to the maximum extent appropriate." The court
further articulated that courts must engage in an individualized
and fact-specific inquiry into the student's disabilities and the
schools effort to accommodate the student, while also maintaining
a deferential position, "with respect to state educational authorities
crafting educational policy."
The court
noted that the two-pronged approach (sometimes known as the Daniel
R.R. test) was adopted by the Third, Fifth, Ninth, Tenth, and
Eleventh Circuits. The Court articulated that the two-pronged test
would provide appropriate guidance to the district courts without
"too intrusive an inquiry into the educational policy choices that
Congress deliberately left to state and local school official."
The court also endorsed the further elucidation of the Daniel
R.R. test set out in the Third Circuit Oberti case, which
listed several factors to be considered in determining whether the
child can be "satisfactorily educated" in regular education: (1)
whether the school district has made reasonable efforts to accommodate
the child in the regular classroom, (2) the educational benefits
available to the child in a regular class, with appropriate aids
and services, as compared to the benefits provided in a special
education class, (3) the possible negative effects of the inclusion
of the child on the education of other students in the class. The
Second Circuit "left for another day" the question of whether it
should be appropriate to consider the cost of the education of the
child in regular education, since the defense of cost was not raised
by the school district.
With
respect to the first prong of the test, the Court of Appeals held
that the district court did not error when it determined that P.
could not be educated in the regular classroom full-time. Education
in the regular classroom could not be achieved through the utilization
of a variety of supplemental aids and services.
With
regard to the second prong the court held that P. was mainstreamed
to the maximum extent appropriate and that the IEP's recommended
74% inclusions in the regular classroom was appropriate given P.'s
need for specialized instruction outside the regular classroom.
The court concluded that the school's actions were sufficient under
the two-pronged test and that the 2005-2006 IEP placed P. in the
"least restrictive environment" under the IDEA. With regard to the
remedy for deficiencies in 2004-2005 IEP the court affirmed the
remedy awarded by the hearing officer. The court noted that IDEA
permits a hearing officer to "fashion an appropriate remedy" and
this Court held that "compensatory education" is an available option
under the Act to make up for denial of free and appropriate public
education.
Vanessa
Chabrier-Davis, Legal Intern (12/08).
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