On August 20, 2018, parents, who are COPAA members, received an overwhelming victory in a swiftly delivered opinion from the Sixth Circuit Court of Appeals’ decision in L.H. v. Hamilton Cty. Dept. of Educ., regarding their child’s right to be educated in his least restrictive environment (LRE), a decision which the school district’s counsel referred to at oral argument as “arguably the most important special education case heard by the Sixth Circuit in the past thirty-five years.”
The Sixth Circuit’s opinion affirmed the district court decision finding that the school district violated IDEA when it demanded that a second-grade student with Down syndrome be removed from his general education classroom in his neighborhood school to a segregated special education classroom comprised solely of children with disabilities at another school. Rejecting the school district’s argument that L.H. could receive a more “meaningful educational benefit” from placement in the special education classroom at the separate school, the Sixth Circuit reiterated that the LRE is a “separate and different” measure than that of “substantive educational benefits” and that, “in some cases, a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming.”
The Sixth Circuit then cited the Supreme Court’s recent Endrew F. decision which measures for “appropriate progress based on the unique circumstances of the child for whom it was created” in affirming the district court’s holding that, “What the IDEA implies, the case law makes explicit: a child need not master the general-education curriculum for mainstreaming to remain a viable option. Rather, the appropriate yardstick is whether the child, with appropriate supplemental aides and services, can make progress toward the IEP’s goals in the regular education setting.”
Additionally, in a stern condemnation of the school district’s actions in violating L.H.’s right to be educated his LRE, the Sixth Circuit stated that the school district’s approach “is the type of approach that the IDEA was designed to remedy, not encourage or protect.” The Sixth Circuit further explained that “these actions at Normal Park [L.H.’s zoned school] do not demonstrate a failure of mainstreaming as a concept, but a failure of L.H.’s teachers and the other HCDE staff to properly engage in the process of mainstreaming L.H. rather than isolating and removing him when the situation became challenging.”
After affirming the district court’s decision with respect to L.H.’s LRE, the Sixth Circuit then addressed the parents’ right to reimbursement for his private education at the Montessori school where L.H. was educated alongside his typically developing same-age peers in the general education classroom for the past five years while litigation was pending. Relying in large part on the contributions of the parents’ expert, and COPAA member, Dr. Kathleen Whitbread, the Sixth Circuit found that while the Montessori method is not as “structured” as public school, at the Montessori school L.H. was included in the general education classroom with his non-disabled peers, received personalized curriculum, and a paraprofessional dedicated to him, such that he was working well with instructional support and making academic progress. Accordingly, the Sixth Circuit held that L.H.’s private school meet the standard for reimbursement under IDEA because even though it did not replicate all of the public school’s standards, it met Endrew F.’s requirement that it be “reasonably calculated to enable a child to make progress in light of the child’s circumstances.” Therefore, the Sixth Circuit reversed the district court’s decision denying reimbursement to the parents and remanded the case back to the district court to determine the appropriate amount of reimbursement.
Yesterday’s decision clearly supports the argument made in the amicus brief COPAA filed in January. This was a tremendous victory on behalf of children with disabilities who strive to be educated in their general education classroom, as well as for COPAA members Justin Gilbert and Jessica Salonus, who tried the case below, and whom COPAA supported by filing an amicus brief on behalf of the parents.
Photo above: Luka Duncan at 15
Photo credit: Deborah Duncan
Information provided by Jessica Salonus – Consulting Attorney, Council of Parent Attorneys and Advocates (COPAA)
Jessica has been an active member of COPAA for a number of years prior to recently joining COPAA as a contractual attorney. She graduated with honors with a degree in Management from Louisiana State University and with honors from the University of Memphis Cecil C. Humphreys School of Law with her law degree, where she was also the Managing Editor of the Law Review.