A recent U.S. Ninth District Court of Appeals court case surrounding the Individual Education Plan (IEP) of a student with Down syndrome is creating a larger conversation surrounding placement versus location change. In kindergarten, the IEP team wanted to add 20 minutes more pull-out time. The parents disagreed with where the team wanted to do these extra minutes. Instead of the resource room at his neighborhood school, the team wanted to move him to another school with a self-contained class.

This complex case brings up some very important questions: What defines a placement change? Is placement only about percentage of time in general education? Or is it also about setting?

The student’s lawyers in the R.M. v. Gilbert Unified School District case argue that placement is more than just a math computation. “If a district can call a change to a different school a location change, then any child who receives any amount of specialized instruction on a pull-out basis can be moved to a different school at any time as long as the general education minutes remain the same. This will greatly interfere with students attending their neighborhood school, developing friendships in a school that they stay at throughout their education. LRE should mean more than how much time you are in a general education classroom,” Susan Marks, attorney who represented R.M. at the administrative hearing level.

Read Related Post: Details about the R.M. v. Gilbert Unifed School District

The school district, on the other hand, wants to broaden their power of location change. If the judges rule that this was a location issue, then moving a student to any school in the district would be left up to the professional judgement of the school district. “The district gets more bang for their buck if they can pull student into a self-contained class at a centralized location. It’s the medical model. And many people don’t understand why a parent wouldn’t want a specialized program for their child,” explains Marks.

In fact, 9th District Judge Susan Graber reinforced this societal stereotype of parents and students with disabilities when she said “I’ve never heard of a parent who wanted less services.” The implications of this statement sent shock waves through the Down syndrome community. Of course the parents in this case don’t want less. They’re more concerned with what they’ll lose if their son is moved to a school outside his neighborhood and put in a self-contained class instead of a resource room. Disability advocates know what happens next: More minutes spent in a self-contained class. Then they’ll propose a different curriculum, no hope to graduate, and 80% unemployment upon transition to the real world.

It’s obvious these parents care. The Individuals with Disabilities Education Act (IDEA) gives parents the right to decline services. The district can’t say all or nothing. We all have known a parent who refused Physical Therapy or some other service, because it would mean more pull-out time for their student with an intellectual disability. More turns to less.

Read Related Post: What To Do When a School District Doesn’t Understand or Believe in Least Restrictive Environment

Many advocates in the special education advocacy community are very anxious about this case, because the impact could be far reaching. There are legal limitations to LRE and inclusion. The law does give deference to school districts to consolidate services at limited locations. IDEA says students with disabilities must be educated with their typical peers, unless their IEP requires otherwise. The district has argued that R.M.’s current school does not have a self-contained program, so he needs to go to a school that does. Still, Marks argues this is not just a location change, because the self-contained class is a different program than the resource room at his neighborhood school.

This case won’t be as clear cut as L.H. v. Hamilton School District, because in that case Luka went from being fully included in general education all day to a proposal to move him to a fully self-contained class at a different school. The boy in this case has more pull-out time already, and the school district argues his general education time will remain the same albeit at a different school.

The issue in this case comes down to resource room at his neighborhood school or the same amount of time in a self-contained class at another school. Does he need the self-contained class? “We argue he doesn’t because he’s making progress on 100% of his IEP goals in his current placement,” Marks explains. While the school district uses Endrew F. v. Douglas School District to argue they’re trying to be more ambitious, the truth is they’re trying to segregate him into a homogenous group with other kids like him. This is the very anti-thesis to LRE, and not what the research is finding as best practice for inclusive education. 

Read Related Post: How School Districts are Using Endrew F. Against Students with Down Syndrome

9th Circuit judges have yet to make a decision in R.M. v. Gilbert Unified School District. I will be sure to keep you updated. The family or school district can appeal the decision to the U.S. Supreme Court.

The 6th Circuit Court of Appeals recently called a school district’s arguments in favor of segregating a student with Down syndrome “a bit bizarre.” I’ve written about the case of 15-year-old Luka who wanted to continue to be included with his typical peers here. The school district’s arguments to send him to a separate school, in a self-contained class for students with more significant disabilities won’t surprise most of my readers though. Many of us have heard the same argument.

In the case, officially named L.H. v. Hamilton County Department of Education, The district referenced a video of Luka in a general education class at the public school stating, “‘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 U.S. District Court’s response is one that you’ll want to keep in your IEP meeting playbook:

“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 .”

Read Related Post: Using Luka’s Case at Your Child’s Next IEP Meeting

The U.S. District Court went on to say the “premise is that L.H. should not be mainstreamed because the teachers and staff 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.”

Wow! This is what advocates of inclusion have been arguing for FOREVER! But finally a U.S. District Court of Appeals confirms this legal precedent, and you can use it to fight for a general education placement with supports FIRST. Luka’s lawyer, Justin Gilbert, is using the ruling in cases in Tennessee, Michigan, North Carolina, and even California to shift LRE back to general education first.

Read Related Post: Ninth Circuit Appeals Court to Decide if a Student with Down Syndrome Can Stay in General Education Classroom

Remember, IDEA defines LRE as follows: “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 nondisabled; and Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

Remember these important points when fighting for LRE in general education with appropriate supports:

1. Your child does NOT have to keep up with their typical peers or the grade level curriculum to be included meaningfully in general education. The 6th Circuit Court of Appeals confirmed this in Luka’s case. You can make the argument that the LRE is always general education with supports, as long as your child is making meaningful progress on IEP goals in light of their disability.
2. IDEA and state laws outline a continuum of placement that always starts in general education with appropriate supports and moves to more restrictive environments only after all supports have been exhausted. How do you know when they’ve been exhausted? When you’ve tried everything (1:1 aide, modified curriculum, behavioral plans, etc) and your child has made no progress individual progress.
3. The placement decision happens annually. Even if your child is in a more restrictive environment now, you can make the argument that LRE needs to be discussed and re-evaluated every year.
4. Be careful how your child’s IEP goals are written. Those goals drive placement. So if you’re child’s goals are life skills based, like counting coins or tying their shoe, you may be writing your child right into a more restrictive placement. Always tie your child’s IEP goals to the grade level curriculum at their level.
5. There’s no legal statute that defines “inclusion.” LRE is as close as you get to the idea of inclusion. Use the language in IDEA defined above, as well as this case to make your case for general education with supports FIRST.

Luka’s mother, Deborah Rausch, says “all those sleepless nights were worth it!” She has one message for parents: “Do not accept a segregated placement. It is not appropriate for most any child. Insist on inclusion, and use a great advocate to negotiate with the school until you get it.”

Luka has made meaningful progress in a general education setting at a private Montessori school since his case went to due process in his 3rd grade year. He was recently accepted into a private high school. Read more about his case here.

Does your school district understand and believe in LRE? Tell me about your triumphs and tribulations surrounding LRE in the comments section.