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Mainstreaming (LRE) and FAPE in 2018:
Analysis of L.H. v. Hamilton County Department of Education

by Peter W.D. Wright & Pamela Darr Wright

...if it is truly [the disctrict's] view, then it is worrisome and inadvertently supports ... that the teachers and staff reject mainstreaming because they don’t understand it, don’t believe in it, and need training on why it is valuable and how to do it. - from 6th Circuit Decision, Judge Alice Batchelder.

If you are interested in special education legal issues, we encourage you to read L.H. v. Hamilton County Department of Education, a wide-ranging decision about FAPE, LRE, parental rights, school culture, and tuition reimbursement issued by the U.S. Court of Appeals for the Sixth Circuit on August 20, 2018.

Meet L.H.

"L.H. is a 15-year-old boy with Down Syndrome. He is by all accounts a personable and kind boy and an enthusiastic learner … every witness for either party has been complimentary of and affectionate toward L.H.”

“To accommodate L.H.’s intellectual disability, a group (the “IEP team”), comprising his parents and several teachers and staff, prepared an annual Individualized Education Program (IEP) … with goals and objectives based on L.H.’s past and expected performance.

“Through second grade, the annual IEPs followed the regular Tennessee school curriculum in a regular education classroom with non-disabled children of the same age or grade, though with added special education supports and services … such as speech-language therapy, occupational therapy, and a full-time aide.”

“L.H.’s parents are fully invested in his education … they have expectations for L.H. and want him to reach his full potential … Outside of the classroom, they read with L.H., reviewed his homework daily, and did extracurricular activities with him . . .”

“It was their strong and clearly stated desire that L.H. be ‘mainstreamed,’ i.e., educated in the standard public school setting, integrated with non-disabled grade-level peers, and taught the standard curriculum.”

“During his first three years … L.H. made progress academically but did not keep pace with his grade-level peers … he had learned basic math concepts but was at a kindergarten level. But he was reading at a mid-to-late first grade level, nearly on par with his peers.”

“When the IEP team met to develop L.H.’s second grade IEP, some [school] staff suggested moving L.H. to a ‘CDC,’ an isolated class comprised solely of special education students and located at a different school.” L.H.’s parents were opposed to that suggestion and insisted that he remain in the regular education classroom.

As L.H. prepared to begin third grade, the school district unilaterally moved him from his mainstreamed classroom with non-disabled children to a segregated classroom for children with disabilities in a different school. In this new classroom, “there would be little interaction between disabled and non-disabled students.” None of the other students were “as advanced as L.H. in reading or in their desire or ability to socialize. Thus L.H. would have been isolated in the CDC, but likely unable to comprehend why.”

The new IEP developed for L.H. by school personnel “did not tie L.H.’s academic goals to regular education standards for third grade.” The self-contained program used an online software program that “was not peer-reviewed nor tied to the state’s general education standards.” The educational program “did not provide standard report cards or track educational progress under state standards.”

“Particularly distressing to L.H.’s parents is that this curriculum does not provide for any homework,” although the parents’ expert testified that “homework is a connection between home and school for parents and student, and the absence of homework reflects to all involved that this is not a typical school experience.”

L.H.s parents rejected the school’s IEP that changed their son’s program and placement, removed him from the public school, and placed him in the Montessori School (TMS) where he made progress and thrived.

“L.H. got along well with his classmates, none of whom were disabled . . . [and] he was universally considered to be friendly, respectful, and well-behaved. It also bears mention that L.H.’s parents are pleased with L.H.’s progress – academic, social and behavioral – during his five years at TMS, covering third through seventh grades.”

“L.H.’s parents filed an IDEA administrative complaint to challenge the IEP” and requested tuition reimbursement for the Montessori School. The Administrative Law Judge (ALJ) ruled against them.

“L.H.’s parents appealed to the district court, which held that the self-contained placement was ‘more restrictive than necessary and therefore improper, but that the parents’ private placement did not satisfy the IDEA, so they were not entitled to reimbursement.’” 

Both the parents and the school district appealed.

Law: FAPE & Least Restrictive Environment (LRE)

The IDEA requires school districts to provide disabled children with a “free and appropriate education” (FAPE). FAPE requires schools to “. . . prepare an ‘individualized education program’ (IEP) for the disabled student and . . . educate the child in the ‘least restrictive environment (LRE) possible.’” 20 U.S.C. §1412(a)(1)(5).

The IDEA includes a strong preference for mainstreaming handicapped children: “To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled,” and separate classes, separate schooling, or other removal … from the regular education environment occurs only when the nature or severity of the disability . . . is such that education in regular classes with . . . supplementary aides and services cannot be achieved satisfactorily.” 20 U.S.C. §1412(a)(5)(A)

Wrightslaw Note: You will find the least restrictive environment (LRE) or mainstreaming statute on pages 72-73 in Wrightslaw: Special Education Law, 2nd Edition.

On appeal, the school district claimed that “the district court erred by holding that its placement of L.H. at the CDC was not the least restrictive environment (LRE)” and presented several arguments in support of this claim.

The Court found one argument “a bit bizarre.” Others were described as “disingenuous,” “without merit,” and “worrisome."

“All in all, none of the arguments is persuasive.”

“The district’s theory is that, because special education students are so different from their classmates socially and intellectually, they are necessarily ‘isolated’ from them even though they are physically in the same room. Thus, special education students can never truly be ‘mainstreamed.’”

The district “refers to a video of L.H. at TMS to claim that, even at TMS, ‘L.H. was functionally isolated from typically developing peers despite sitting in their midst.’ The district contended that this is common because ‘the academic gap between students with disabilities and typical peers can be so extreme that it is isolating and stigmatizing.’”

The Court found that “This is really an argument against ‘mainstreaming’ as a concept, because [the district] believes it is impossible, impracticable, or counterproductive . . . if this is truly [the district’s] view, then it is worrisome and inadvertently supports the … parents’ experts opinions that the teachers and staff reject mainstreaming because they do not understand it, do not believe in it, and need extensive training on why it is valuable and how to do it . . .”

The “premise is that L.H. should not be mainstreamed because the teachers and staff [at the elementary school] were unwilling or unable to properly engage in the process of mainstreaming L.H., as they deemed it futile or useless in light of his disability.”

“These actions do not demonstrate a failure of mainstreaming as a concept, but a failure of L.H.’s teachers and the other staff to properly engage in the process of mainstreaming L.H. rather than isolating and removing him when the situation became challenging.”

Law: Tuition Reimbursement

When challenging an IEP, parents may unilaterally remove their child from a public school, “place the child in a private school, and seek reimbursement for the cost of the private school.” Sch. Comm. of Town of Burlington v. Dept of Educ. of Mass., 471 U.S. 359, 369-70 (1985), though they “do so at their own financial risk.” id. at 373-74.

To award reimbursement, the hearing officer, ALJ, or district court must find both that: (1) the public school violated the IDEA and (2) the private school is appropriate under the IDEA. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993).

“  . . . Even though the IDEA’s requirements do not apply to private schools, for reimbursement purposes, the private school must be ‘reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.’” Endrew F., 137 S. Ct. at 999.


“We conclude that the educational program at TMS satisfied the IDEA and, therefore, LH’s parents were entitled to reimbursement. The district court erred in holding otherwise. Because the appropriate amount of reimbursement is not evident from the record, however, we must remand for the district court to admit such additional evidence as it deems necessary and render judgment in the amount of reimbursement that it finds appropriate under the IDEA.”

"For the foregoing reasons, we AFFIRM the district court’s decision that the school district’s segregated placement violated the IDEA but REVERSE its decision that the parents’ alternative private placement did not satisfy the IDEA and REMAND for a determination of the appropriate amount of reimbursement and issuance of a judgment consistent with this opinion.”

Counsel: L.H. and his parents were represented by Justin Gilbert, Gilbert McWherter Scott & Bobbitt, Chattanooga, TN and Judith A. Gran, Reisman Carolla Gran, Haddonfield, NJ for Amici Curiae.

Useful Resources from Wrightslaw

Wrightslaw: Special Education Law, 2nd Edition (ISBN: 978-1-892320-16-2, 456 pages, 8 1/2" x 11", perfect bound) by Peter Wright and Pamela Wright includes the full text of the Individuals with Disabilities Education Act, the IDEA regulations with analysis and commentary and is available in two formats, a bound book and a book & e-book combo.

Wrightslaw: Special Education Law

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Created: 05/30/19

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