Parent sues district over child's special education placement

The parent of an elementary school student sued a school district, alleging that the district failed to provide appropriate special education services to her child when the district moved the child out of the general education population into an essential academics program. The parent objected to the district's decision and sought a due process hearing under the Individuals with Disabilities Education Act (IDEA).

A hearing officer concluded that the district's proposal was: (1) the child's least restrictive environment; and (2) appropriate in light of her circumstances. The parent appealed to District Court, which affirmed the hearing officer's decision. She then appealed to the Court of Appeals.

The Court of Appeals began its analysis by reviewing the child's educational history. Prior to beginning kindergarten, the student was identified as having primary and secondary disabilities, including Down syndrome — or Trisomy 21 — hypothyroidism, attention deficit hyperactivity disorder (ADHD), asthma and a speech impairment. An admission, review and dismissal committee (ARDC) was formed to develop an individualized education program (IEP). The ARDC agreed to place the student in general education with a modified curriculum, inclusion support, and occupational and speech therapy.

When the student began kindergarten, the district noticed challenging behaviors and enlisted a behavioral analyst to conduct a functional behavior assessment (FBA). At its annual meeting, the ARDC approved a behavior intervention plan (BIP) aimed at addressing the identified behavioral issues. It also modified the student's curriculum below grade level for the rest of the kindergarten and the upcoming first grade year.

The student failed to make progress in first grade and the IEP was amended. The parents also requested an independent FBA, which the district agreed to provide. The independent analyst noted that the student "demonstrated maladaptive behaviors that interfered with her learning and/or the learning of others."

After receiving the new FBA, the district convened an ARDC meeting to modify the child's BIP. At that meeting, the district proposed increasing the child's resource room time, implementing an alternative curriculum rather than a modified curriculum, and obtaining an expedited full individual and initial evaluation (FIE) in all areas. The parents disagreed with the proposals, and the issues were tabled until the next meeting.

The ARDC then held two more meetings. First, it held a meeting to resolve the tabled differences from the last meeting. Second, it held its annual ARDC meeting to finalize an IEP for the child's upcoming second grade year. During those meetings, the district proposed that the student "receive part or all instruction in a special education setting." The district based its recommendation on four grounds:

1. General education prohibited the child from meeting IEP goals/objectives;
2. The child's competency was significantly below grade level;
3. Modifications required for the child to achieve IEP goals/objectives could not be implemented without "eliminating essential components of the general curriculum/activity"; and
4. The child's speech impairment necessitated "a less distracting environment than the general education classroom."

The child had trouble making academic progress in second grade and the ARDC recommended a cognitive evaluation to evaluate current levels of intellectual functioning. The parent withheld consent for cognitive testing but agreed to lower the student's mastery criteria in math, reading and writing. The child continued to struggle and exhibit behavioral issues in the general education classroom that the district believed was due to frustration at not being able to keep up.

The ARDC convened to develop the student's IEP for third grade and recommended that the child be removed from general education into a self-contained special education classroom.

The district noted that it made "efforts to modify and supplement the child's participation in the general education setting . . ." but that despite those efforts, the child could not "make progress towards her goals." It further noted that the child often grunted, struck at other students, and swiped materials off desks. On the other hand, there had been more progress during the times the child received instruction in the resource classroom, which could have been attributed to the small group environment and fewer distractions.

The parent argued that the self-contained setting was not the least restrictive environment and that the services being provided were not appropriate.

The court noted that, in order to identify the least restrictive environment, the district was required to consider whether education in the regular classroom, with the use of supplemental aids and services, could be achieved satisfactorily for the child. If the answer is no, then the district must ask whether the school has mainstreamed the child to the maximum extent appropriate.

In this case, the court noted that the child's IEP was incrementally amended over a course of approximately three years. Each amendment provided for either more inclusion support, special education, or resource room time. Although the child occasionally saw glimpses of progress, the bottom line was one of stagnation, minimal improvement, and, at times, even regression. The new placement was the next logical step when the district found that the child was still not improving. The district had provided the child with appropriate services in the least restrictive setting.