Ninth Circuit to Decide Least Restrictive Environment for Student with Down Syndrome

Disclaimer: I am not a lawyer, and cannot give legal advice. The following is my interpretation, as a lay advocate, of the 9th Circuit’s hearing of R.M. v. Gilbert Unified School District on April 11th. My blog supports inclusion for people with intellectual disabilities, and my opinions are my own.

The Ninth Circuit Court of Appeals heard arguments today in a case centered on placement and the Least Restrictive Environment (LRE) for a elementary student with Down syndrome.

During his kindergarten year, the IEP team for an Arizona boy requested 20 additional minutes of pull-out time in a life skills class at another public elementary school five miles away from his neighborhood school. At the time, teachers reported that he had made some progress on 100% of his IEP goals. The parents refused, arguing that the decision amounted to a change in placement and invoked their “stay put” rights. He’s still currently at his neighborhood school, where his sister also attends. He spends the majority of his day in general education with a 1:1 aide.

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During the 15 minute hearing in front of the 9th Circuit of Appeals, the family’s lawyer, Amy Langerman, stated that there were three givens in the boy’s case:

1. The Supreme Court of the United States explained in Endrew F. that a Free and Appropriate Education (FAPE) for a student with an intellectual disability does NOT require them to keep up with their typical peers. Langerman argued that the boy in this case had made progress in light of his disability on 100% of his IEP goals in the general education classroom.
2. Congress, in creating the Individuals with Disabilities Education Act (IDEA), strongly prefers that children with special needs be educated to the “maximum extent appropriate” with typically developing peers and removal should only occur “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.” Langerman argues that the 9th District the court must follow the “Rachel H. Standard” of LRE, which contemplates the (1) educational benefit of placement full-time in a regular classroom (2) the non-academic benefits of that placement (3) the effect the child would have on the teacher and other students (4) the cost of mainstreaming the child.
3. Lastly, Langerman argued the code of standard for LRE states a child should attend the same school they would attend if they were not disabled. In this case, Langerman argued the neighborhood school is the boy’s LRE.

As soon as Langerman finished her opening statement the female judge on the 9th Circuit surprised me by stating that this was the “first time a parent was arguing that there giving too many services to their child.” The judge seemed confused as to why the parent wouldn’t want her child to be given 20 more minutes of Specially Designed Instruction (SDI) in a life skills class at a different elementary school. Langerman responded to this to say that the parent agreed with teachers’ initial comments in the IEP meeting that he was making progress towards all of his IEP goals. She also stated that parents of children with disabilities everywhere would be celebrating in the streets if Congress would create a higher standard of education for students with disabilities, but that’s not the law. The law requires they be educated with their typical peers in LRE, and make meaningful progress towards their IEP goals. And the boy in this case was making progress, and not minimal progress.

The female judge also stated that there’s “evidence to support what the district calls for,” in that the law does NOT “require” a student be educated at their neighborhood school if that school doesn’t have the appropriate services to ensure the student makes meaningful progress. Langerman argued that the Administrative Law Judge (ALJ) in the due process case did not have all the needed information to make a correct decision in the case, because Endrew F. came after the ALJ’s ruling in the lower court.

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The lawyer for Gilbert Unified School District opened her arguments with two statements:

1. The school district wanted to provide more meaningful benefit to the student by offering 20 additional service minutes in math and writing. The boy currently has 105 minutes of Specially Designed Instruction (SDI).
2. The school district wanted to implement these minutes in a life skills class at a public school 5 miles away.

The district’s lawyer argued that the student “has no peers at the current school.” In a very sad and dramatic tone the lawyer declared the boy “an island in the general education classroom.” She went on to say “the IEP calls for small group instruction, but there’s no peers that he receive SDI alongside at his current school. We are are aiming for higher than some or good enough progress. The district doesn’t think he’s receiving any benefit in general education. His teachers say he would benefit from a life skills class.”

The judges asked if the district had taken into consideration transportation and the impact on the family. The lawyer said the district would pay for transportation to the new school, and had taken into account the family’s situation as much as is needed under the law.

The district’s argued that “some progress would be a denial of FAPE. None of his educators thought he was getting what he needed at the current school.” She went on to argue that the case is not about inclusion or segregation, and that the law does not require him to be educated at his home school if it’s not feasible to do so and make meaningful progress. She also stated that the IEP can be written the same way in a life skills class, so it’s not a change of placement but instead a change of location. “Placement and location are separate arguments,” the district’s lawyer argued.

So the question remains: Is removing a student from his neighborhood school considered a change of placement? Does the child have a right to receive the additional 20 minutes of SDI in his neighborhood school? Or does the district have the right to move him to a school that provides a life skills class to ensure he makes more “meaningful” benefit? No decision in the case was made today. I will report back as soon as a decision is made.