Court Declares Least Restrictive Environment Mandate Applies to Extended School Year Placements

Lozano Smith Client News Brief
April 2014
Number 24

The U.S. Court of Appeals for the Second Circuit recently considered whether the requirement to serve special education students in the least restrictive environment (LRE) applies to extended school year (ESY) placements. (T.M. ex rel. A.M. v. Cornwall Cent. School Dist. (2d Cir. April 2, 2014) __ F.3d __ 2014 WL 1303156.) The court held the LRE requirement applies to ESY placements, concluding the LRE requirement carries the same force during the summer months as during the regular school year.

The Individuals with Disabilities Education Act (IDEA) requires school districts to serve special education students in the LRE and to ensure that "to the maximum extent appropriate, children with disabilities…are educated with children who are not disabled." (20 U.S.C. § 1412(a)(5)(A).) The IDEA's implementing regulations require school districts to make a full continuum of placement options available. Additionally, ESY is required when necessary to prevent substantial regression and must be made available to provide a student a free appropriate public education (FAPE).

In Cornwall, the student attended a private mainstream kindergarten classroom during the academic year and received special education services from the school district. As the student required ESY to avoid regression, the district offered a self-contained special education classroom. The parents believed the student should be mainstreamed during ESY as he had been during the regular school year, so they unilaterally enrolled the student in a private mainstream summer program.

In this case, the school district argued the LRE requirement is only violated if a school district fails to include a student in an available less restrictive environment. Specifically, the school district maintained it was not required to provide a mainstream ESY program if the district did not have general education summer school classes in which to include special education students.

The court rejected the school district's argument concluding, "Under the IDEA, a disabled student's least restrictive environment refers to the least restrictive educational setting consistent with that student's needs, not the least restrictive setting that the school district chooses to make available."

The court acknowledged a school district is not required to create a new ESY program to serve the needs of one child with a disability. However, the court asserted that if a school district determines a student requires a less restrictive ESY placement than what the school district has to offer, the school district must consider programs operated by other public or private agencies and schools. The court pronounced that if a school district fails to consider a full continuum of possible ESY programs, and denies the student a FAPE in the LRE, then the school district may be liable for reimbursement for a parentally obtained alternative program.

Although a Second Circuit decision and therefore not binding in the Ninth Circuit, this case establishes that a school district has an affirmative duty to ensure ESY programs are offered in the LRE appropriate for each student, even if the school district does not offer general education summer classes. When thinking about ESY placement options, it is important for a school district to consider the full continuum of placement options just as it would for regular school year placements. If a school district determines that a student requires a less restrictive environment than the school district offers for ESY, the school district should look to other available program options operated by different agencies or schools.

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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.