The Second Circuit reaffirmed that an individualized education program (IEP) may satisfy both the free appropriate public education (FAPE) and least restrictive environment (LRE) requirements—even when it does not align with general education standards—where the student is alternately assessed and has significant cognitive disabilities.
In Killoran v. Westhampton Beach School District, No. 21-2647, 2023 WL 4503151, — F. App’x —, 123 LRP 20863 (2d Cir. July 13, 2023), the court affirmed decisions at every administrative and judicial level in favor of the school district, concluding that the challenged IEP was both procedurally and substantively sound.
The parents alleged procedural violations in the development of the IEP. The court rejected those claims, holding that any procedural shortcomings did not impede parental participation and did not deprive the student of educational benefits.
Although the court acknowledged that the IEP team should have considered the student’s New York State Alternate Assessment results, it concluded that the omission did not undermine the validity of the IEP. The record showed that the team relied on other sufficient information to understand the student’s educational needs. In particular, the court emphasized the role of the teacher who administered the assessment that was used, noting that the teacher met extensively with the student’s teachers, service providers, and parents and analyzed the results of other testing.
The court further held that the IEP met the FAPE standard because it was reasonably calculated to enable the student to make progress appropriate in light of his circumstances.
The parents argued that the IEP was deficient because it did not incorporate the general education curriculum, align goals with grade-level learning standards, or attempt to educate the student in a district school. The court rejected that argument, explaining that the student was alternately assessed and had significant learning disabilities that made adherence to general education standards impossible. Under those circumstances, the IDEA did not require grade-level alignment or access to the general education curriculum.
The court also upheld the recommended placement in a special class in an out-of-district public school. Applying the established least restrictive environment framework—whether education in the regular classroom with supplemental aids and services could be achieved satisfactorily, and, if not, whether the student was mainstreamed to the maximum extent appropriate—the court concluded that placement in a regular classroom was not feasible.
The student scored below the first percentile in reading comprehension, spelling, listening comprehension, and mathematics, and demonstrated similarly low performance in other areas. In light of the student’s unique needs, the court concluded that education in a regular classroom was not possible even with supplemental aids and services. The court further held that mainstreaming for non-academic activities satisfied the obligation to mainstream the student to the maximum extent appropriate.
The district court decision that the Second Circuit affirmed provides additional factual detail. At the relevant time, the student was sixteen years old and classified as having an intellectual disability. The district proposed a 12:1:1 program in another school district, despite the parents’ argument that the home district’s Regents Diploma track could be modified to meet the student’s needs.
In rejecting that claim, the district court emphasized that the student was reading at a first-grade level; that peers in the Regents track had significantly higher IQ scores; that the student demonstrated low performance across multiple academic areas; and that the student required instruction in daily living skills.
The decision reinforces that FAPE and LRE determinations are highly individualized. For alternately assessed students with significant cognitive disabilities, the IDEA does not require alignment with general education standards or placement in a general education setting. Where an IEP is grounded in a thorough understanding of the student’s needs and is reasonably calculated to support appropriate progress, courts will defer to the educational judgment of the IEP team.