L.H. v. Hamilton Cnty. Dep't of Educ.

• Decision Date: 20 August 2018
• Docket Number: 18-5086,Nos. 17-5989,s. 17-5989
• Citation: 900 F.3d 779
• Parties: L.H., a minor student; G.H.; D.H., Plaintiffs-Appellees/Cross-Appellants, v. HAMILTON COUNTY DEPARTMENT OF EDUCATION, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

900 F.3d 779

L.H., a minor student; G.H.; D.H., Plaintiffs-Appellees/Cross-Appellants,

v.HAMILTON COUNTY DEPARTMENT OF EDUCATION, Defendant-Appellant/Cross-Appellee.

Nos. 17-5989

18-5086

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2018

Decided and Filed: August 20, 2018

Rehearing En Banc Denied September 26, 2018

COUNSEL ARGUED: D. Scott Bennett, Leitner, Williams, Dooley & Napolitan, PLLC, Chattanooga, Tennessee, for Appellant/Cross-Appellee. Justin S. Gilbert, Gilbert McWherter Scott & Bobbitt, PLC, Chattanooga, Tennessee, for Appellees/Cross-Appellants. ON BRIEF: D. Scott Bennett, Mary C. DeCamp, Leitner, Williams, Dooley & Napolitan, PLLC, Chattanooga, Tennessee, for Appellant/Cross-Appellee. Justin S. Gilbert, Gilbert McWherter Scott & Bobbitt, PLC, Chattanooga, Tennessee, for Appellees/Cross-Appellants. Roy H. Henley, Thrun Law Firm, P.C., East Lansing, Michigan, Francisco M. Negrón, Jr., National School Boards Association, Alexandria, Virginia, Judith A. Gran, Reisman Carolla Gran LLP, Haddonfield, New Jersey, for Amici Curiae.

Before: GUY, BATCHELDER, and BUSH, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

When a school district decided to move a disabled child from a "mainstreamed" classroom with non-disabled children to a segregated classroom solely for children with disabilities, the child's parents opposed that decision, removed the child to a private school, and sought relief under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq. After years of dispute and litigation, the district court held that the school district's placement of the child in the segregated classroom was more restrictive than necessary and therefore violated the IDEA, but that the parents' alternative private placement did not satisfy the IDEA either, so they were not due reimbursement. L.H. v. Hamilton Cty. Dep't of Educ. (L.H. #1) , No. 1:14-CV-00126, 2016 WL 6581235, at *1 (E.D. Tenn. Nov. 4, 2016).¹ We AFFIRM the district court's decision that the school district's placement violated the IDEA, but we REVERSE its decision that the parents' alternative private placement did not satisfy the IDEA, so we REMAND for a determination of the appropriate amount of reimbursement and issuance of a judgment consistent with this opinion.

I.

L.H. is a 15-year-old boy with Down Syndrome

. He is by all accounts a personable and kind boy and an enthusiastic learner. In fact, if there is one constant in this record, it is that every witness for either party has been complimentary of and affectionate toward L.H.

From 2009 to 2013, L.H. attended Normal Park Elementary School, a public school operating under the Hamilton County (Tenn.) Department of Education (HCDE).² To accommodate L.H.'s intellectual disability, a group (the "IEP team"), comprising his parents and several teachers and staff, prepared an annual "individualized education program" (IEP), which is a requisite planning document with goals and objectives based on L.H.'s past and expected performance. Through second grade, the annual IEPs followed the regular Tennessee school curriculum in a regular-education classroom with non-disabled children of the same age or grade (hereinafter "grade-level peers"), though with added special-education supports and services for L.H., such as daily "pull-out time" (one-on-one instruction with a special-education teacher outside the regular classroom), "push-in time" (a special-education teacher in the regular classroom), occupational therapy, speech-language therapy, and a full-time aide.

L.H.'s parents are fully invested in his education and participated in formulating his IEPs. Because they have expectations for L.H. and want him to reach his full potential, they pushed their preferences for his education and regularly sent information regarding Down Syndrome

to assist in his educational development. Outside the classroom, they read with L.H., reviewed his homework daily, and did extracurricular activities with him. Moreover, it was their strong and clearly stated desire that L.H. be "mainstreamed," i.e., educated in the standard public-school setting, integrated with non-disabled grade-level peers, and taught the standard curriculum.

During his first three years at Normal Park (kindergarten and two first grades), L.H. made progress academically but did not keep pace with his grade-level peers. By May 2012, he had learned basic math concepts but overall was at a kindergarten level. His independent writing ability was also at or below a kindergarten level. But he was reading at a mid-to-late first-grade level, nearly on par with his grade-level peers, though his comprehension was behind.

When the IEP team met to develop L.H.'s second-grade IEP in May 2012, some HCDE staff suggested moving L.H. to a Comprehensive Development Classroom (CDC), an isolated class comprising solely special-education students and located at a different school. L.H.'s parents opposed that suggestion and insisted that L.H. remain in the regular-education classroom. So L.H. remained at Normal Park with the aid of special-education supports and services.

The 2012-2013 (second grade) IEP's educational goals followed regular second-grade curricular goals, which were a significant step up from the goals contained in L.H.'s 2011-2012 (repeated 1st grade) IEP, both in number and in difficulty. The HCDE teachers and staff later claimed they thought the goals were unrealistic, but all members of the IEP team—including L.H.'s parents and eight HCDE teachers and staff—agreed to the goals and objectives then.

When second grade started and L.H. struggled to meet the goals, his classroom teacher, Stefanie Higgs, and his special-education teacher, Lisa Hope, claimed that he lacked the prerequisite skills. Because both Higgs and Hope were relatively inexperienced, Hope consulted Jeanne Manley—an experienced special-education teacher designated by HCDE for teacher training and support—several times regarding teaching strategies to try with L.H. Despite these efforts, L.H. did not progress as fast or as far as they hoped. These teachers also reported that L.H.'s behavior was becoming disruptive (claiming he would invade his classmates' personal space, disobey teachers' directions, and "shut down" or refuse to work).

Surmising that the behavioral issues were due to L.H.'s frustration with the difficulty of the work, Hope modified his lessons to a kindergarten level (with the exception of reading, which remained at a first-grade level). Higgs and Hope also attempted to minimize distractions by isolating L.H. toward the back of the room, away from tables with containers of distracting work materials and the traffic of the other students. According to Hope, L.H.'s behavior improved noticeably after these changes, particularly the reduction of his work level.

L.H.'s behavior improved but progress toward the second-grade goals in his IEP did not, and Higgs and Hope doubted that he would meet the IEP goals by year end. When they relayed this in L.H.'s second-quarter IEP progress report, L.H.'s parents requested a meeting. At the meeting, HCDE staff stated that L.H. was working far below grade-level expectations. Jill Levine, the Normal Park Principal, told L.H.'s parents that although L.H. had benefitted from the regular-education setting in kindergarten and first grade, he had "hit a wall" and was no longer progressing, and she again suggested the CDC special-education classroom. L.H.'s parents opposed this, specifically objecting to the lack of interaction with non-disabled grade-level peers, the absence of a normal academic curriculum or standards, and separating L.H. from his friends.

During four IEP planning meetings over the next few months, HCDE staff insisted on the CDC placement. L.H.'s parents resisted. They contested HCDE's assessment of L.H.'s performance, questioned the teachers' qualifications, and relied on evidence of the benefits of mainstreaming and the downsides of segregation in the CDC. HCDE, in turn, emphasized L.H.'s poor performance, alleged disruptiveness, and the necessity of the CDC placement.

In May 2013, over his parents' objections, the HCDE finalized L.H.'s 2013-2014 (third grade) IEP. HCDE asserted that L.H. needed more support than it could provide at Normal Park and unilaterally ordered L.H. transferred to the CDC at Red Bank Elementary, a segregated classroom for children with disabilities, with an alternative curriculum, at a different location.

According to L.H.'s parents, this new IEP resulted in a 40% reduction in L.H.'s academic instruction time, from five hours per day to three hours per day. According to HCDE, however, L.H. would spend 3.5 hours per day (90 minutes of reading, 90 minutes of math, and 30 minutes of pre-vocational instruction) in the segregated classroom with the other special-education students, and spend the rest of the day with non-disabled peers at lunch, music, art, physical education, and 30 minutes of social/emotional special education push-in instruction. But, even by HCDE's account, some of the proposed instruction appeared questionable. For example, HCDE's director of Special Education, Margaret Abernathy, testified that L.H. would receive instruction in math and handwriting through his physical education (gym) class and, though conceding that the physical education teacher is not a state accredited math teacher, she insisted that the physical education standards require higher order thinking skills such as math.

The new curriculum was different qualitatively as well as quantitatively. This new IEP did not tie L.H.'s academic goals to third-grade regular-education standards in any way. Instead, the Red Bank CDC uses an online special-education software program called the Unique Learning System (ULS) to teach reading and math in the framework of monthly science and social studies units, which can be supplemented as necessary by more focused reading and math lessons. The ULS program follows...