Tuesday, January 17, 2012

D.D.C.: Private-School Placement Inappropriate Where FAPE Could Be (Though Wasn't Yet) Provided in More Integrated Public School

Last week, in N.T. v. District of Columbia, --- F.Supp.2d ----, 2012 WL 75629 (D.D.C., Jan. 11, 2012) judge Rosemary Collyer of the United States District Court for the District of Columbia granted summary judgment to the defendant school district in an interesting IDEA case.  When the events at issue began, the plaintiff, N.T., was a first grader at a private school in Washington, DC, who had recently been diagnosed with ADHD.  Her parents initiated a referral to the DC Public Schools to evaluate her eligibility for special education services.  While the two parties discussed an IEP to cover N.T.'s second grade year, the parents decided to place N.T. in a different private school in DC, one that accepted kids with disabilities only.  In October of her second grade year, N.T.'s parents rejected the proposed IEP -- in pertinent part because it didn't include a requirement that N.T. be educated in a small-group setting -- and initiated an administrative due process hearing seeking reimbursement for her private school tuition.  The hearing officer rejected the claim for reimbursement.

N.T., through her parents, sought review in the federal district court, which granted summary judgment to the school district.  The court agreed that the IEP as proposed by the school district did not provide a free appropriate public education, because it did not provide that N.T. would receive instruction in small classes.  But the court also found reimbursement to be an improper remedy.  The court explained that the school district was capable of providing N.T. instruction in a small-group setting in her neighborhood public school -- a school that included students with and without disabilities.  The private school, by contrast, admitted only those students who had disabilities, so it would not be the least restrictive environment for N.T.  Although the court recognized that a parental placement need not be the least restrictive environment, it concluded that a hearing officer and court may consider whether the private school is the least restrictive environment in determining whether reimbursement is an appropriate remedy.  Here, the court concluded, the proper remedy was to modify the IEP to provide that N.T. would receive small-group instruction at her integrated public school.  With that change, the court explained, "N.T. could receive a FAPE at a public school" and would not need a private placement.

This is an outcome that I imagine Ruth Colker would dislike, but that makes a lot of sense to me.  One of the risks of the reimbursed-private-placement system the courts and Congress have set up is that it can encourage further segregation of kids with disabilities in a way that undermines the core IDEA principle of integration.  (Ruth and I have a friendly disagreement about the role and force of that principle.  For my salvo in that dispute, see this brief piece.)  Decisions like Judge Collyer's serve to mitigate that risk.

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