P. v. Newington Bd. of Educ., 546 F.3d 111 (2nd Cir. 2008)

Second Circuit Court of Appeals

October 9, 2008

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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