Circuit courts have varied in their interpretations of the legal standard for identifying the best classroom placement for a child with disabilities.
One of the primary principles of the Individuals with Disabilities Education Act (IDEA) is the requirement to provide services to students with disabilities in the least restrictive environment (LRE). In the early years of IDEA, this was referred to as mainstreaming; today, the more common term is inclusion. But neither of these terms appear in the federal legislation; rather, they are the terms of practice used to implement the LRE requirement.
The Department of Education defines LRE in this way:
LRE means that, to the maximum extent appropriate, school districts must educate students with disabilities in the regular classroom with appropriate aids and supports, referred to as “supplementary aids and services,” along with their nondisabled peers in the school they would attend if not disabled. (Heumann & Hehir, 1994)
The guidance clearly states that school districts are to educate students with disabilities in regular classrooms with their nondisabled peers, in the school they would attend if not disabled, to the maximum extent appropriate. For the most part, this is what happens. According to the U.S. Department of Education’s National Center for Education Statistics (2016), 61.8% of students with disabilities spend more than 80% of their academic time in regular education classrooms.
But for some students, the regular education environment may not actually be less restrictive. For example, students who are deaf and communicate primarily through sign language may seek an environment with peers who can communicate directly with them. And in some cases, the school district might question whether placing a student in the regular education environment will cause disruption for other students, be excessively expensive due to additional services, or simply not be an appropriate placement. When providing services outside the regular education environment is an option, this requirement can cause serious disagreements, which leads to confusion and conflict between families and school districts. To add to the confusion, not all of the nation’s 11 circuit courts of appeals have interpreted the requirement in the same ways.
All of the circuit courts consider:
- A preference or presumption for placement in the regular classroom,
- Whether the cost for the placement is prohibitive for the district (a secondary consideration in some circuits),
- Whether the student would present such a disruption so as to negate other students’ opportunities to learn, and
- Whether the placement would be appropriate or provide sufficient educational benefit for the student.
For the First and Seventh Circuit Court of Appeals, these are the only considerations. But some circuits would also look at the feasibility of certain placements, the in-class supports that are needed, and the degree to which certain supports are “portable” to a regular classroom. (See Figure 1 for a summary of the differences among circuits.) Despite the differences in standards among the courts, the U.S. Supreme Court has not provided guidance by deciding a case on this issue.
These standards have to be applied to real children, real schools, real educators. It’s not rocket science; actually, it’s much more complicated than that because real people are involved.
The recent case L.H. v. Hamilton County Department of Education (2018), in the Sixth Circuit Court of Appeals, shows just how complicated it can be. L.H. is a student with Down syndrome. Through 2nd grade, he was in a regular education classroom with nondisabled peers at Normal Park Elementary School, where he was provided supplementary services and supports. L.H. made academic progress, but he did not keep pace with his nondisabled peers. He had learned basic math concepts at a kindergarten level and was reading at a mid to late 1st-grade level. When L.H. was moving to the 3rd grade, the school district unilaterally moved him from the regular education classroom to a classroom for children with disabilities in a different school, Red Bank. The students in the new classroom were not as academically advanced as L.H., and the curriculum was online and did not provide homework (a feature that L.H.’s family argued provided a “normal” education and a strong connection between school and home).
L.H.’s family rejected the school’s IEP, which changed L.H.’s program and placement, and they moved him from the public school to a Montessori school where he continued to make academic and social progress. The family filed a complaint challenging the IEP and the placement, and they requested tuition reimbursement for the Montessori school. The district court found that the self-contained placement at Red Bank had been “more restrictive than necessary and therefore improper.” The case was appealed to the Sixth Circuit Court of Appeals.
Citing Roncker v. Walter (1983), the circuit court noted the IDEA requirement that students be placed with their nondisabled peers when possible. The school district had argued that the regular education placement was not appropriate because L.H. was not able to master the regular education curriculum, but the circuit court noted that the ability to master the curriculum was not the standard. The U.S. Supreme Court in Endrew F. v. Douglas County School District (2017) set the standard for an appropriate education under IDEA as “whether the IEP’s substantive educational plan was reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
The school district also argued that L.H. was functionally isolated in the regular education environment because he was so different from his nondisabled peers. The court noted that this was an argument against inclusion in general, which is contrary to IDEA’s preference for educating students with nondisabled peers, stating, “This is the type of approach that the IDEA was designed to remedy, not encourage or protect.”
The Sixth Circuit affirmed the federal district court’s decision that the district’s placement violated IDEA, and it ordered the district court to assess and order the reimbursement of the Montessori school tuition.
Given how much the different circuits vary in their standards regarding LRE, it’s unclear whether another court would have applied different standards and come to a different conclusion. And so it is important for districts across the country to be attentive to how these cases are being decided in their own circuits until a case that addresses the contradictions in standards reaches the Supreme Court.
Endrew F. v. Douglas County School District RE-1 580 U.S. (2017).
Heumann, J.E. & Hehir, T. (1994, November). Questions and answers on the least restrictive environment requirements of the Individuals with Disabilities Education Act (OSEP 95-9). Washington, DC: U.S. Department of Education, Office of Special Education and Rehabilitative Services.
L.H. v. Hamilton Cnty. Dep’t of Educ., Nos. 17-5989/18-5086 (6th Cir. Aug. 20, 2018).
Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).
U.S. Department of Education, National Center for Education Statistics. (2016). Digest of Education Statistics, 2015 (NCES 2016-014). Washington, DC: Author.
Citation: Underwood, J. (2018). Under the law: Defining the least restrictive environment. Phi Delta Kappan, 100 (3), 66-67.