LRE Not Always a Requirement for Successful Tuition Reimbursement Claim

In C.L. v. Scarsdale Union Free Sch. Dist., C.L. suffered from attention deficit hyperactivity disorder (ADHD), nonverbal learning disability and executive function weakness.  From kindergarten until third grade, the school provided C.L. with a Section 504 plan.  In third grade, C.L.’s parents requested that the school evaluate C.L. to determine if he qualified for special education services under IDEA.  The school concluded that C.L. did not meet the criteria under the IDEA, and therefore, was not eligible for an Individualized Education Program (IEP).  The Section 504 plan was modified based on the new special education assessments.  At the end of third grade, C.L’s parents informed the school that they were withdrawing C.L. from the school and enrolling him in a private school.  The parents requested a due process Hearing seeking reimbursement for the tuition costs of the private school.

The Independent Hearing Officer (IHO) determined that by third grade, if not before, the school was obligated to evaluate C.L. under the IDEA.  The IHO further determined that the school should have classified C.L. as disabled under the IDEA and provided him an IEP.  By failing to provide an IEP for C.L., the school denied him a Free Appropriate Public Education (FAPE).  Parents’ private placement was appropriate under the IDEA, and the IHO awarded parents tuition reimbursement.

The school appealed the IHO’s ruling to a state review officer (SRO), who overruled the IHO’s decision.  The SRO agreed that the school denied C.L. FAPE, but also concluded that the private school was not an appropriate placement for C.L. because it did not satisfy the IDEA requirement that a student be placed in the least restrictive environment (LRE).

The parents filed suit in federal district court against the school, seeking to reinstate the initial decision of the IHO for tuition reimbursement.  The district court determined that there was sufficient evidence to support the SRO’s conclusion that C.L. made progress at the school and benefited from interactions with his peers, and as a result, found in favor of the school. This appeal by parents followed.

The Second Circuit Court of Appeals reversed the district court’s decision in regard to the IDEA tuition reimbursement claim and held that parents were entitled to tuition reimbursement.  If a public school does not provide FAPE to a disabled student, the parents may place the child in an appropriate private school and seek tuition reimbursement.  To succeed on their claim, the parents must show that: (1) the private placement they selected was appropriate for the student; and (2) the equities weigh in their favor.  A private placement is appropriate when it is “reasonably calculated to enable the child to receive educational benefits.”

The issue in this case is whether, and to what extent, should IDEA’s preference for mainstreaming be taken into account in determining the appropriateness of the parents’ private placement.  In regard to the first requirement, the panel found that the restrictiveness of the placement is a factor to consider because “IDEA maintains a ‘strong preference’ for educating disabled children in the least restrictive environment.”

The second issue–the extent to which LRE should be considered–was the linchpin of the panel’s opinion.  The school argued that the parents were not entitled to tuition reimbursement because the private school did not provide the LRE possible for C.L., and was actually more restrictive than the school.  The Second Circuit Court of Appeals rejected this argument.

The Second Circuit held that when a public school system denies a student FAPE, “a private placement is not inappropriate merely because the environment is more restrictive than the public school alternative.”  The restrictiveness of the private placement cannot be measured against the restrictiveness of the public school option.  The panel’s holding was based on the following rationale.  Since “parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education,” it stands to reason that certain provisions of the IDEA are not applicable to a parents’ selected private placement.  Additionally, the IDEA’s LRE requirement “was aimed at preventing schools from segregating [disabled] students from the general student body.”  It was not intended to restrict a parent’s options.  Third, LRE in a private school cannot be fairly compared with LRE in a public school because their student populations are different.  When a student is denied FAPE, his parents are often forced to turn to private schools that only educate disabled students.  “Such private schools are necessarily restrictive as they do not educate disabled and nondisabled children together, and may be more restrictive than the public school from which the child was removed.  Inflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal the Supreme Court recognized previously in Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ.”

The lesson learned in this case is traced back to the school’s failure to (1) identify the student as in need of special education services and (2) provide an IEP.  This opened the door for parents to claim a denial of FAPE, enroll their child in private school and ultimately, require the school to pay the private school tuition.  The LRE argument raised by the school was rejected by the Second Circuit, as the parental “right of unilateral withdrawal” was available to parents if the school denied FAPE.

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