In a recent decision, the Ninth Circuit Court of Appeals weighed the four factors for determining whether placement of a third-grade student with autism in a general education classroom was the child’s least restrictive environment. (D.R. v. Redondo Beach Unified Sch. Dist., 122 LRP 48314 (9th Cir. 2022).)
The student had been placed in a third-grade general education class with four (4) hours per week of specialized academic instruction in a learning center, a full-time one on one behavioral aide, and various related services. Midway through third grade, the IEP team met to review the student’s progress. Parents believed the student should continue to spend most of the school day in the general education classroom with his non-disabled peers. However, the school district believed that the student would be better served spending more of his school day in a special education classroom with fewer students, more adult support, more direct instruction from a credentialed teacher, more repetition of each topic area, and more group work with peers at a similar grade level.
As a compromise, the district offered a blended program where the student would spend the mornings in general education, and afternoons in a special education classroom and learning center for small group instruction. Parents disagreed with the offer and the student continued in his previous placement. At the end of fourth grade, the IEP team met again to develop an IEP for the upcoming school year. The team agreed that the student had met four of his six academic goals and made progress on the remaining two, but school officials were concerned that he was performing several grade levels below his non-disabled peers in language arts and math. As a result, he was spending most of his time working one-on-one with his aide on a heavily modified curriculum. The school district continued to offer placing the student in a special education class for a majority of his school day.
Parents disagreed with the school district’s proposal, removed the student from school and hired a private instructor to teach him in a one-on-one setting. Parents requested a due process hearing and appealed the decision to District Court and then to the Ninth Circuit alleging that the school district denied the student a placement in the least restrictive environment and sought reimbursement for their expense of private tutoring for the student.
Local educational agencies must ensure that:
to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A).
The Ninth Circuit has established a four-factor test to determine whether a local educational agency has complied with the least restrictive environment requirement. See Sacramento City Unified School District v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994). The four factors that must be considered are the:
1. academic benefits of placement full-time in a regular class;
2. non-academic benefits of such placement;
3. effect the student has on the teacher and children in the regular class; and
4. costs of mainstreaming the student.
Here, the parties agreed that the second, third, and fourth factors all weighed in favor of maintaining the student in the general education classroom for most of the school day. He became close friends with several non-disabled classmates which helped him develop his interpersonal skills and his presence did not impede his teachers’ ability to instruct other students or otherwise disrupt the classroom.
However, the parties disagreed on the first and most important factor of comparing the academic benefits in the regular classroom with the academic benefits in a special education classroom. The Court said grade level performance was the incorrect benchmark of academic benefits. Instead, an IEP team should examine whether a student can make meaningful progress on his academic IEP goals. Here, there was undisputed evidence that the student was making substantial progress toward meeting his IEP goals. Even if the student might have received greater academic benefits in a special education classroom, a more restrictive placement that sacrifices the substantial non-academic benefits the student received from being educated in the general education classroom would not be justified. The Court also explained that it was irrelevant that the student received such academic benefits as a result of one-on-one aide support or significant curriculum modification because a child cannot be penalized for relying on the supplementary aids and services he receives.
The Court held that the school district’s proposed IEP failed to offer the student free appropriate public education in the least restrictive environment. However, the court denied reimbursement for the expenses parents incurred after unilaterally removing the student from school and hiring a private instructor to educate him in a one-on-one setting. The court explained that removing the student from school and placing him in an even more restrictive setting than the one proposed by the school district was not appropriate.
This case is a great reminder of the IDEA’s strong preference for educating students with disabilities with their non-disabled peers. Least restrictive environment considerations are a critical part of any placement determination. A child with a disability should not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum. IEP teams need to ensure that they are thoroughly considering the four factors when determining whether a student should be educated in a general education classroom and documenting the team’s consideration.
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