A relatively new case that merits attention is L.H. v. Hamilton County Department of Education, Nos. 17-5989, 18-5086, 2018 WL 3966517, — F.3d —-, 118 LRP 34015 (6th Cir. Aug. 20, 2018). The student, now 15, has Down Syndrome, and was educated in a mainstream class at public school from kindergarten through second grade, but the school staff felt the goals listed in his second-grade IEP were unrealistic, and proposed that the student be moved to a “comprehensive development classroom” which would be at a different school and contain only students with disabilities. Possibilities for integration with other students would be present in lunch and art and music classes but evidence indicated that there was little mixing of the general education and special education children in those settings. The parents resisted the proposal and placed the child in a private Montessori school, where he was the only special education student in the class and was provided a specially adapted curriculum with ties to state standards, as well as a one-on-one aide. The parents invoked due process, arguing that the school district failed to offer education in the least restrictive environment (LRE) and demanding tuition reimbursement. The administrative law judge (ALJ) ruled for the school district. On appeal to the district court, the court reversed the ALJ’s decision against the parents on the LRE issue, but ruled that the private placement did not provide appropriate education and thus reimbursement would not be awarded.

The Sixth Circuit Court of Appeals affirmed that the public school’s proposal did not fulfill the LRE obligation, and reversed the denial of reimbursement. The court noted the approach of the Sixth Circuit to LRE issues in Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983), that children with disabilities must be educated with children who are not disabled to the maximum extent appropriate and separated only when education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily, but the mainstreaming preference is not absolute, and separation may occur “when: (1) the student would not benefit from regular education; (2) any regular-class benefits would be far outweighed by the benefits of special education; or (3) the student would be a disruptive force in the regular class.” L.H., 2018 WL 3966517, at *5. Unlike ordinary methodology controversies, where the school district’s educational expertise comes into play, settings that may be better for academic reasons may not be appropriate if they do not provide for mainstreaming.

The court agreed with the district court that mainstreaming would be proper even if the student could not master the general education curriculum. The question instead was whether the child could make progress toward the goals in the student’s IEP in the regular education setting. The court accepted the district court’s view that the goals of student’s IEP should not have been pegged to grade-level standards. The court also rejected the idea that the opinions of the school staff should be deferred to because they spent more time with the students than the expert witnesses did. The court of appeals declared that the district’s concern over the difficulties of the student with the general education curriculum and the proposal by the district to move the student to the self-contained setting “do not demonstrate a failure of mainstreaming as a concept, but a failure of L.H.’s teachers and the other [district] staff to properly engage in the process of mainstreaming L.H. rather than isolating and removing him when the situation became challenging.” Id. at *9.

On the reimbursement question, the court of appeals disagreed with the district court and said that the Montessori program, which included a personalized curriculum and a paraprofessional dedicated to the single student offered appropriate education, even though the district court felt that it lacked necessary systematic stricture. The court of appeals pointed to expert testimony that a Montessori approach is well suited for children with Down Syndrome in many respects. The court further said that the curriculum was tied to regular state standards, while not demanding grade-level performance, and there was evidence that the child made educational progress. Finally, the court said that the parents were justified in opting for private placement rather than invoking stay-put rights to keep the student in the general education class at the public school, because the public school teachers had insisted they could not provide the support services needed to mainstream the student successfully. The court remanded for a determination of the proper amount of reimbursement.

The case is consistent with a number of other LRE decisions in that it views the obligation as one that is a strong preference and a determination on which deference to school district authorities will be limited. Deference will not be as important a consideration as would be true for a case turning solely on appropriate education issues, e.g., methodology,  accommodations or modifications. The ability of the student to achieve at grade level is not considered a basis to reject mainstreaming for the student. Moreover, a parental placement need not be ideal and in particular need not be highly structured. Reimbursement will be proper if the placement offered by the school district does not comply with the LRE requirement, if the parental placement provides some element of special education services in which the district placement was deficient, and if it enabled the child to make academic progress.