P. Ex Rel. Mr. and Mrs. P. v. Newington Bd. of Ed.
2008 WL 4509089, 2008 U.S. App. LEXIS 21099, 546 F.3d 111 (2008)
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Rule of Law:
Determining whether a disabled child has been placed in the “least restrictive environment” under the IDEA requires a flexible, fact-specific two-pronged analysis: first, whether education in the regular classroom with appropriate supplementary aids and services can be satisfactorily achieved; and if not, second, whether the school has mainstreamed the child to the maximum extent appropriate.
Facts:
- P. is a child with Down Syndrome, hearing impairment, and other significant health problems, including conditions requiring multiple surgeries, and is not toilet trained.
- In spring 2004, when P. was eight, the school district's behavioral consultant, Greg Smith, informed P.'s parents that it was becoming increasingly difficult to keep P. in a regular classroom due to the widening ability gap with peers and P. exhibiting behavior problems like kicking, grabbing, and pulling hair.
- On May 28, 2004, P.'s parents requested that P. be in a regular classroom at least 80% of the time for the 2004-2005 school year, but the Performance and Planning Team (PPT) provided an IEP for 60% classroom time, with separate "pull-out" services for occupational and speech therapy.
- Later in the summer of 2004, the Connecticut Children’s Medical Center (CCMC) performed a psychological evaluation, finding P. had social-interaction and communication skills equivalent to those of an average two-year-old child and exhibited "serious problem behaviors."
- Dr. Kathleen Whitbread, an inclusion consultant hired at the parents' request, completed an evaluation on December 13, 2004, describing P.'s behavior problems as "moderately serious" but opining that the PPT had done a "commendable job" of ensuring P. spent the majority of the day with non-disabled peers, while also recommending more connection to the general education curriculum and literacy instruction.
- On February 11, 2005, Dr. Whitbread told the PPT that P. would benefit from additional regular-classroom time, but also contended that some of his literacy instruction might need to take place outside the classroom.
- On April 15, 2005, P.'s parents reiterated their preference that their son’s regular-classroom time increase from 60% to 80% in the upcoming year, and Dr. Whitbread again stated her recommendation that the team "gradually increase to 80% inclusion for [P.]."
- On June 3, 2005, the PPT adopted an IEP for the 2005-2006 school year that increased P.'s regular-classroom time from 60% to 74%, with removal only for focus/attention needs, fatigue, or behavior needing a break, and also mandated extensive supplemental assistance, but P.'s parents lodged their disagreement with the plan in writing.
Procedural Posture:
- On June 9, 2005, P.'s parents requested an administrative hearing to challenge both the 2004-2005 and 2005-2006 IEPs before an administrative hearing officer.
- The administrative hearing officer, Mary Elizabeth Oppenheim, held that the 2004-2005 IEP did not comply with IDEA but that the 2005-2006 IEP did, awarding compensatory education for the deficiencies of the 2004-2005 IEP.
- P. (appellant) appealed the hearing officer's ruling regarding the 2005-2006 IEP's sufficiency and the adequacy of the remedy awarded for the 2004-2005 IEP to the United States District Court for the District of Connecticut.
- Both parties cross-moved for summary judgment, and the district court affirmed the hearing officer’s decision, granting summary judgment to the Newington Board of Education (appellee) and awarding P. partial attorneys’ fees and costs.
- P. then appealed the district court’s decision to the United States Court of Appeals for the Second Circuit.
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Issue:
Does an Individualized Education Plan (IEP) for a child with Down Syndrome satisfy the Individuals with Disabilities Education Act's (IDEA) "least restrictive environment" mandate when it provides for 74% inclusion in regular classrooms and specialized pull-out services, and the school has made reasonable efforts to accommodate the child, but the parents sought 80% inclusion?
Opinions:
Majority - Katzmann, Circuit Judge
Yes, an Individualized Education Plan providing for 74% inclusion in regular classrooms with specialized pull-out services satisfies the IDEA's "least restrictive environment" mandate, even if parents sought more, when the school has made reasonable efforts and education in a fully regular classroom setting cannot be achieved satisfactorily. The court explicitly adopted a two-pronged test, previously used by several sister circuits, to assess "least restrictive environment" compliance. The first prong asks whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily for a given child, considering reasonable efforts, educational benefits in a regular class versus special education, and possible negative effects on other students. If not, the second prong asks whether the school has mainstreamed the child to the maximum extent appropriate. The court found no error in the district court’s conclusion that P. could not be educated full-time in a regular classroom given his needs for pull-out services for reading, math, and speech therapy, as well as the school's significant efforts, which included multiple professionals and a modified curriculum. The 74% inclusion, with P. participating in all "specials, lunch, and recess," was deemed mainstreaming to the maximum extent appropriate, particularly given the hearing officer's permissible reliance on Dr. Whitbread’s testimony that P. required gradual integration up to 80%. The court rejected the argument for a presumptive 80% inclusion, stating that the IDEA requires an individualized approach, and the objective of providing an education tailored to each student’s particular needs does not admit of statistical generalizations. Finally, the court affirmed the compensatory education remedy for the deficiencies in the 2004-2005 IEP as appropriate, noting it addressed the identified problems and contributed to P.'s increased inclusion.
Analysis:
This case establishes the Second Circuit's explicit adoption of a widely used two-pronged test for determining "least restrictive environment" under the IDEA, providing clear guidance for future cases in the circuit. By rejecting a presumptive 80% inclusion rate, the court reinforced the individualized nature of IEPs, emphasizing that the "maximum extent appropriate" is a fact-specific inquiry balancing mainstreaming with the need for an education tailored to a child's unique needs. This decision grants significant deference to the expertise of state and local educational agencies, particularly when their decisions are thorough and careful, limiting judicial substitution of educational policy. The ruling underscores that while mainstreaming is a critical goal, it should not compromise the provision of an appropriate, specialized education for disabled students.
