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Second Circuit Formally Adopts LRE Standard

In a recent decision, the United States Court of Appeals for the Second Circuit (NY, VT, CT) formally joined its sister circuit courts in adopting a standard for determining when a school district has fulfilled its responsibility to educate a student with disabilities in the least restrictive environment (LRE).  In P. v. Newington Board of Education (10/9/08), the court adopted 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.”  Applying that analysis to the case before it, the court found that the school district had fulfilled that responsibility for P., a student with Down Syndrome, hearing impairment, and other significant health problems.

The case before the court involved a 2-year challenge in which the hearing officer found that the IEP developed for the student for the 2004-2005 school year did not provide an appropriate program in the LRE, but that the IEP developed for the 2005-2006 school year did meet this standard.  The school district did not appeal the hearing officer’s findings regarding the first year at issue, but the parent did appeal the finding as to the second year and the sufficiency of the relief awarded.

The Second Circuit concluded that the approach taken by the Third, Fifth, Ninth, Tenth, and Eleventh Circuits should be adopted in this circuit as well, and provides appropriate guidance to district courts without making too intrusive an inquiry into policy decisions left to local school officials.  Known by some as the Daniel R.R. approach, this test requires that the court consider “whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child”, and if not, “whether the school has mainstreamed the child to the maximum extent appropriate”.  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.

The court further noted that although it adopted the Oberti list of factors, it did not consider this list to be exhaustive, leaving courts and hearing officers to identify other factors relevant to particular cases to be considered in determining compliance with the LRE standard.

Noting that the school district in this case had provided for the student’s inclusion in regular education 74% of the time, and was working toward a goal of 80% with gradual increases, that it had employed several professionals to provide consultation, and that outside expert testimony supported the need for some instruction to be provided outside of the regular classroom, the court affirmed that the school district in this case had complied and that for some period of time, education in the regular classroom “could not be achieved satisfactorily” even with supplemental aids and services, and that he had been mainstreamed to the maximum extent appropriate.

The court rejected the parents’ argument that the P.J. consent decree should cause the court to adopt a presumption that a student should be placed in regular education 80% of the time.  While recognizing that while “Connecticut school authorities may have found this percentage useful, we conclude that mandating such a percentage in every case would be inconsistent with the IDEA’s directive that schools take an individualized approach to each student….We do not think that 80% is presumptively adequate or that less than 80% is presumptively inadequate.”

So, time for you to weigh in: Will this case resolve the issue of the LRE standard in Connecticut?  Or does the non-exhaustive list of factors provide cover for consideration of any factor presented by either side in support of its argument that the LRE standard either has or has not been met?  Is it time for Congress to provide clearer guidelines to schools to comply with the LRE mandate?  Is this an area ripe for reinterpretation in the 2010 Reauthorization?  Or could that do more harm than good?  Post your comments…