1. LRE after Hamilton County
FAPE – LRE = FAPE?
Presenter:
Robert A. Lusk
Lusk Albertson, PLC
(248)
LuskAlbertson.com

2. Presentation Overview
Issue: Is LRE Educational or Non-Educational Decision?
Prior to LH v Hamilton County, 900 F3d 779 (6th Cir 2018)
After Hamilton County
Relevant Statutory Provisions
FAPE (IDEA and Section 504)
LRE (IDEA and Section 504)
Seminal LRE Case: Roncker v Walter, 700 F2d 1058 (6th Cir 1983)
Selected Sixth Circuit Cases after Roncker
LH v Hamilton County, 900 F3d 779 (6th Cir 2018)
Overview

3. Definition of FAPE (IDEA)
The term “free appropriate public education” means special education and related services that –
Are provided at public expense, under public supervision and direction, and without charge;
Meet the standards of the State educational agency;
Include an appropriate … education in the State involved; and
Are provided in conformity with the [IEP] required [by IDEA].
20 USC 1401(9)
Definition of FAPE (IDEA)

4. Definition of FAPE (504) Definition of FAPE (504) FAPE – Section 504
No Statutory Provision
Regulation, 34 CFR (a) and (b):
A [public school district] shall provide [FAPE] to each qualified [disabled] person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s [disability].
… [T]he provision of an appropriate education is the provision of regular or special education and related aids and services that are designed to meet individual educational needs of [disabled] persons as adequately as the needs of non[disabled] persons are met and are based on adherence to procedures that satisfy the requirements of [Section 504’s implementing regulations].
IDEA FAPE v. Section 504 FAPE – Similarities and Differences
Definition of FAPE (504)

5. Definition of LRE (IDEA)
To the maximum extent appropriate, children with disabilities … 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 USC 1412(a)(5)(A)
Definition of LRE (IDEA)

6. Definition of LRE (504) Definition of LRE (504) LRE – Section 504
No Statutory Provision
Regulation, 34 CFR (a)
A [school district] shall educate, or shall provide for the education of, each qualified [disabled] person in its jurisdiction with persons who are not [disabled] to the maximum extent appropriate to the needs of the [disabled] person. A [school district] shall educate a [disabled] person in the regular environment operated by the [school district] unless it is demonstrated … that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. …
Definition of LRE (504)

7. The Salient Question Bottom Line
IDEA FAPE is Usually Section 504 FAPE
IDEA LRE is Usually Section 504 LRE
The Salient Question – How does a school district decide when the nature and severity of a disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily?
The Salient Question

8. Roncker v Walter, 700 F2d 1058 (6th Cir 1983)
Seminal Sixth Circuit Decision on LRE
Facts
Student – CI, 50 IQ, 9 Years Old
Not Dangerous to Others
Student Required Nearly Constant Supervision
District’s Placement Offer - County Program Exclusively for CI Students
Parent’s Response – Place Student in Another Public Elementary School
All Academics in Special Education
Other Activities in General Education
Roncker

9. Roncker v Walter Procedural History LHO SLHO
District’s IEP not in the LRE
Student Placed in Regular Elementary School
SLHO
Disputed IEP not LRE
County Program OK for Academics
Supplement with General Education Placement for Other Activities
Roncker

10. Roncker v Walter Procedural History, Continued
District Court (SD Ohio)
Additional Evidence
Experts for District and Parents agree student should receive academic instruction in special education.
Parents’ expert testifies other activities should occur with general education students.
Rules in District’s Favor (Disputed IEP)
District’s Decision not “Abuse of Discretion”
Appeal to Sixth Circuit
Roncker

11. Roncker – Case Analysis
Sixth Circuit’s Holdings
District court erred by applying “abuse of discretion” standard. District court should have applied modified de novo standard set forth in statute.
Modified De Novo
Court receives administrative record;
Court considers “additional evidence” at parties’ request; and,
Court grants appropriate relief, giving “due weight” to decision at administrative level.
District court erred in not giving “due weight” to LHO and SLHO, both of whom had concluded Disputed IEP did not provide FAPE in LRE.
Roncker

12. Roncker – Case Analysis
Rule for Future Cases
If a segregated (read: more restrictive) placement is considered superior, “the court should determine whether the services that make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate. … [S]ome [disabled] children simply must be educated in segregated facilities either because the [disabled] child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, or because the [disabled] child is a disruptive force in the non-segregated setting. Cost is a proper factor to consider since excessive spending on one [disabled] child deprives other [disabled] children. Cost is not defense, however, if the school district has failed to use its funds to provide a proper continuum of alternative placements for [disabled] children.”
Roncker

13. Roncker – Case Analysis
Other Observations –
The proper standard of review – modified de novo – is not “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities they review. … [T]he proper balance is to give greater deference to the state’s placement decision if the procedural requirements of the Act are met. In this way, the court’s encroachment on the basically legislative decisions involving the distribution of educational resources is kept to a minimum.”
Roncker

14. Roncker v Walter Dissent’s Observation RAL Observation
The word “feasible” is ambiguous. It may mean: capable of being done; capable of being dealt with successfully, suitable; or, reasonable.
RAL Observation
A lot of ambiguity in LRE Cases: “appropriate,” “satisfactorily,” “feasible.”
Who Decides?
Legislature?
Schools?
Courts?
Roncker

15. Hudson v Bloomfield Hills SD, 910 F Supp 1291 (SD MI 1995)
Facts
Student, 14 Years Old
IQ 42
Achievement – 1st Grade
Little or No Meaningful Interaction with GE Students
Disputed IEP
3-4 Hrs. Day in Basic Classroom
2-3 Hrs. Day Mainstreaming
Not at “Home School”
Parents’ Position
Placement at Home School
1-2 Hrs. in Learning Resource Center* (No Basic Classroom at Home School)
Rest of Day in General Education
Hudson

16. Hudson v Bloomfield Hills SD, 910 F Supp 1291 (SD MI 1995)
Procedural History
LHO – Rules in Favor of District
SLHO – Rules in Favor of District
District Court – Rules in Favor of District
Sixth Circuit – Affirms District Court, 108 F3d 112 (6th Cir. 1997)
US S Ct – Denies Certiorari, 522 US 822 (1997)
Hudson

17. Hudson – Case Analysis
Standard of Review – Modified De Novo – I.e., District Court must independently review the administrative record, giving “due weight” to conclusions of administrative law judges.
Rationale – This is a deferential standard of review. Deference is appropriate because federal courts are generalists with no experience in the educational needs of disabled children and will benefit from the fact finding of a state agency with expertise in the field.
Hudson

18. Hudson – Case Analysis
The location of student’s “home school” is not a factor unless all other factors are equal.
Evidence established the student’s “home school” would not be appropriate unless District put another basic classroom in her “home school” – something that would be cost prohibitive.
504 claims dismissed as 504’s LRE provisions mirror IDEA’s LRE provisions.
Hudson

19. McLaughlin v Holt Public Schools, 320 F3d 663 (6th Cir. 2003)
Facts
Student Diagnosed with Down syndrome.
Parents and District agree student should attend half day in general education kindergarten with 1:1 paraprofessional support and half day in special education.
Parents and District disagree on special education placement.
Parents propose a Resource Room at student’s “home school.”
District proposes a Categorical Classroom in another school.
McLaughlin

20. McLaughlin v Holt Public Schools, 320 F3d 663 (6th Cir. 2003)
Procedural History
LHO – Rules in District’s Favor
SLHO – Rules in District’s Favor
District Court – Rules in District’s Favor
Standard of Review
Modified De Novo
More deference when reviewing decisions that require educational expertise. Less deference when reviewing decisions that do not require educational expertise.
Mental Illness

21. McLaughlin – Case Analysis
Per Court, this is not really an LRE case:
Parties agree how much mainstreaming is appropriate.
Parties disagree on where special education component should be provided, at home school or somewhere else.
Per Court, when it comes to deference Roncker distinguished between cases involving “methodology,” a question that should be left to the states, and “LRE” (where deference is less appropriate?)
McLaughlin

22. McLaughlin – Case Analysis
Is the McLaughlin Distinction Correct?
Cf – Slide 13 (Roncker)
Cf – Slide 17 (Hudson)
How to Properly Read McLaughlin
If the only question is location of special education services, the location of the student’s “home school” is not an issue at all.
See Hudson on cost of replicating services for low incidence students.
McLaughlin

23. LH v Hamilton County, 2016 WL 6581235 (ED Tenn 2016)
Student
Down syndrome, cognitive impairment
Achievement – Higher than IQ would Predict
By 3rd Grade
Math at 1st Grade Level
ELA at 2nd or 3rd Grade Level
Behavior – Challenging but not Overly Disruptive
Placement Dispute
District IEP
Half Day in Categorical Classroom for Academics (Different Building)
Half Day in General Education
Parents – Full Time in General Education
LH – Trial Court

24. LH v Hamilton County, 2016 WL 6581235 (ED Tenn 2016)
Procedural History
ALJ – Ruled in District’s Favor
District Court – Ruled:
In Parents’ Favor on Placement Issue
In District’s Favor on Reimbursement Issue
Sixth Circuit
In Parents’ Favor on Reimbursement Issue
LH – Trial Court

25. LH – District Court Analysis
Standard of Review - Modified De Novo
Independent Review of Administrative Record
Deference Based on:
Whether Administrative Findings Require Educational Expertise; and,
Whether Findings Contradicted or Supported by Any “Additional Evidence” Submitted to District Court.
(Procedural v Substantive Issues).
LH – Trial Court

26. LH – District Court Analysis
LRE Analysis
LRE is a substantive issue about FAPE
Roncker factors provide analytical framework (Slide 12)
Application of First Roncker Factor
Parents proved student could benefit from general education placement.
District’s position – student could not make progress commensurate with general education peers (i.e., student could not “master” general education curriculum) was wrong standard by which to measure benefit of general education placement.
No Deference to ALJ’s Conclusion:
ALJ Applied Wrong Standard (Mastery)
“Additional” Expert Testimony Provided to District Court
Side Note – Evidence Characterized as “Extremely” Close
LH – Trial Court

27. LH – District Court Analysis
G & O and Placement
Proper G & O
Based on Student’s Ability
Point Toward General Education Curriculum
Room and Ladder Continuum Analogy
If student can make progress on G & O in general education classroom, with appropriate supplemental aids and services, general education placement is appropriate.
Unanswered Question – Is Any Progress on Any Goal Sufficient?
Cases cited by District Court suggest progress must be “reasonable” and not “trivial” or “marginal.”
New Unanswered Questions – What is “Reasonable,” “Trivial” or “Marginal.”
LH – Trial Court

28. LH – District Court Analysis
Application of Second Roncker Factor
Even assuming academic instruction in categorical classroom was superior, Parent proved that superiority did not far outweigh benefits of general education environment.
Additional evidence, provided by Parents’ expert before District Court, established District goals of improving academic performance and weaning student from paraprofessional could be met by judicious use of supplemental aids and services and pull-out and push-in academic support.
Application of Third and Fourth Roncker Factors – Not Contested
Both Parties Appeal
LH – Trial Court

29. LH v Hamilton County, 900 F3d 779 (6th Cir 2018)
IDEA’s LRE requirement is a non-academic restriction or control on the IEP – separate and different from the measure of substantive educational benefits – that facilitates IDEA’s “strong preference” for mainstreaming disabled students.
In practice, the IEP and LRE generate two different types of decisions. Formulating the IEP’s substantive educational benefits most often concerns methodology, such as deciding between alternative programs or methods for educating a disabled student – these types of decisions require the school district’s educational expertise. Establishing the LRE, however, concerns whether, or the extent to which, a disabled student can be mainstreamed rather than segregated and does not require any such educational expertise.
LH – Sixth Circuit

30. LH – Case Analysis Rejected Argument: Upshot – District Pays
The standard for substantive FAPE, set forth in Endrew F and Deal, applies to LRE decisions.
Sixth Circuit says “no.” Instead, apply Roncker factors.
Upshot – District Pays
$103,274 for Private Placement
$349, for Attorneys’ Fees and Costs
LH – Sixth Circuit

31. Where are We?
LH arguably adds LRE decisions to the category of decisions to which courts need not defer to the school district or the ALJ.
Previously –
Courts did not defer to school district or ALJ on issues of procedural compliance.
LRE was treated as a decision requiring educational expertise, to which courts deferred, assuming procedural compliance. See Roncker (Slide 13) and Hudson (Slide 17). Cf. McLaughlin (Slide 21).
Where are We?

32. What Does LH Mean?
In LRE cases, courts may reverse IEP placement decisions based on the court’s opinion of whether they are appropriate, satisfactory or feasible.
In non-LRE cases, and LRE cases, courts may continue to decline to defer to IEP decisions if:
Parent establishes procedural violations; and,
Based on “additional evidence” not presented to the ALJ.
What Does LH Mean?

33. Is LH Subject to Successful Challenge?
RAL Opinion – Yes
Avenues for Challenge
Sixth Circuit did not cite binding precedent for proposition that LRE is not a decision that requires educational expertise. LH only cited to an inapplicable footnote from Rowley.
LH is inconsistent with prior Sixth Circuit decisions.
LH grants parents and courts the ability to diminish the “A” in FAPE in LRE cases. Hence the subtitle, FAPE – LRE = FAPE.
LH is inconsistent with US Supreme Court’s decision in Arlington (2006).
Successful Challenge?

34. Practical Advice Shy away from LRE cases, even when it hurts.
If you have an LRE case, settle it.
Certainly, courts are less deferential to public education than in years past.
Sadly, it may be that courts are becoming suspicious of public education in general.
Practical Advice

35. Questions? Robert A. Lusk Lusk Albertson, PLC rlusk@luskalbertson.com
409 E. Jefferson, 5th Floor Pearl St. NW, Ste. 992
Detroit, MI Grand Rapids, MI 49503
(248)
Questions