L.H. et al v. Hamilton County Department of Education

Filing 172

MEMORANDUM. The Court concludes Plaintiffs have established by apreponderance of the evidence that the placement proposed in L.H.s 20132014 was not L.H.s least-restrictive environment. Because the private placement chosen by L.H.s p arents lacks several critical qualities necessary for L.H. to receive an educational benefit, however, the Court concludes Plaintiffs are not entitled to reimbursement for the costs associated with theplacement. Signed by District Judge Curtis L Collier on 11/4/2016. (BDG, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

L.H., a Minor Student, et al.,
Plaintiffs,
v.
HAMILTON COUNTY DEPARTMENT
OF EDUCATION, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 1:14-CV-00126
Judge Curtis Collier
Magistrate Judge Susan Lee

MEMORANDUM
Plaintiffs, L.H., a thirteen-year-old school boy with Down Syndrome, and his parents,
G.H. and D.H., seek in this Court a review of a determination by a state administrative law judge
(the “ALJ”) that the general-education setting in the public schools of Defendant Hamilton
County Department of Education (“HCDE”) was not appropriate for L.H.
After carefully reviewing that determination and giving it due weight, considering the
additional evidence presented by the parties at the evidentiary hearing before this Court, and
taking into account the applicable law, the Court reaches its independent decision that HCDE’s
proposed placement at the Red Bank comprehensive development classroom (the “CDC”) was
more restrictive than necessary, but that the alternative private placement Plaintiffs chose—The
Montessori School of Chattanooga (“TMS”)—is not an appropriate educational environment for
L.H. Accordingly, Plaintiffs are not entitled to reimbursement for the costs of educating L.H. at
TMS.

I.

LEGAL BACKGROUND
As a condition for receiving federal funds, the Individuals with Disabilities Education

Act (the “IDEA”), 20 U.S.C. §§ 1400 et seq., requires participating States to provide a “free
appropriate public education” (a “FAPE” in education law parlance) for all children with
disabilities. 20 U.S.C. § 1412(a)(1). It further requires States to educate disabled children
alongside nondisabled children “to the maximum extent appropriate”—a mandate known as the
“least restrictive environment” (or “LRE”) requirement. Id. § 1412(a)(5). Plaintiffs contend this
latter requirement means L.H. should be educated in a regular-education classroom at his
neighborhood school—Normal Park Museum Magnet School. Defendant HCDE maintains—
and the ALJ previously determined—that the general-education setting was not appropriate for
L.H. and he needed to spend half of his day receiving academic instruction in the CDC, a selfcontained classroom at Red Bank Elementary School designed for children with intellectual
disabilities. Plaintiffs now seek review of that determination in this Court.
It is the Court’s responsibility to “make an independent decision based on the
preponderance of the evidence,” while giving “due weight” to the ALJ’s findings and
conclusions. See Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 849 (6th Cir. 2004) (Deal I)
(quotation marks omitted). In fulfilling its responsibility, the Court has very closely examined
the evidence presented before it, as well as the evidence received in the administrative hearing.
In deciding issues such as this, the Court proceeds with caution, mindful it lacks the
“specialized knowledge and experience necessary to resolve persistent and difficult questions of
education policy.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v.
Rowley, 458 U.S. 176, 208 (1982) (quotation marks omitted). The Court also recognizes,
however, that while the determination of sensitive issues such as a child’s least-restrictive
environment “imposes a difficult burden on the district court[,] [s]ince Congress has chosen to

2

impose that burden, [the Court] must do [its] best to fulfill [that] duty.” Roncker ex rel. Roncker
v. Walter, 700 F.2d 1058, 1062 (6th Cir. 1983). Ultimately, while reasonable minds could differ
with the Court’s conclusion because the evidence considered as a whole is extremely close, the
Court ultimately concludes Plaintiffs have met their burden to establish by a preponderance of
the evidence that L.H.’s proposed placement at the Red Bank CDC was more restrictive than
necessary, but they have not established that the alternative private placement they chose at TMS
is an appropriate educational environment for L.H.

Thus, Plaintiffs are not entitled to

reimbursement for the costs of educating L.H. at TMS.

II.

FACTS
In addition to thoroughly reviewing the record of the administrative proceeding, the

Court received additional evidence during a hearing held on January 11–14, 21, 25, and 26,
2016. At the hearing, the Court heard from four witnesses called by Plaintiffs and six witnesses
called by HCDE, and also received a number of documentary and video exhibits. From these
sources, the Court makes the following factual findings.
A.

General Information about L.H.

L.H. has Down Syndrome and is classified as intellectually disabled under the IDEA.
This means his intellectual ability falls two standard deviations below the average, or in the
bottom 2.2% of the population, and his adaptive behavior, or daily-living skills, are significantly
impaired. As is also common with Down Syndrome, L.H.’s receptive and expressive language
skills are impaired relative to those of typically developing children. As a result, L.H. qualifies
for special-education services under the IDEA and has received these services since he was three
years old.

3

L.H. is, by all accounts, a personable, fun-loving child. He enjoys playing on his iPad,
listening to music, and interacting with friends. He is generally respectful and kind, though
sometimes he has difficulty expressing himself in socially appropriate ways. L.H. enjoys school
and learning, although he occasionally acts out or refuses to work, and he often needs motivators
or prompting to help him stay on task. L.H. is a visual and kinesthetic learner and has a good
short-term memory.
L.H. attended Normal Park in 2009–2010 (kindergarten), 2010–2011 (first grade), 2011–
2012 (repeating first grade), and 2012–2013 (second grade). While at Normal Park, L.H. was
educated pursuant to an individualized education program (an “IEP”), a planning document with
goals and objectives for the upcoming year formulated based on L.H.’s present levels of
performance. This document was prepared and updated annually by L.H.’s parents, HCDE
teachers and staff, and other service providers (the “IEP team”). Through second grade, L.H.’s
IEPs directed he be taught the regular curriculum in a regular-education classroom alongside
typically developing peers. The IEPs also specified certain special-education supports and
services to enable L.H. to access the regular curriculum, such as daily “pull-out time” (one-onone instruction with a special-education teacher outside the regular classroom), “push-in time”
(instruction from a special-education teacher in the regular classroom), occupational therapy,
speech-language therapy, and a full-time aide.
L.H.’s parents are extremely invested in his educational success and have been highly
involved in his education and the process of formulating his IEPs. They strongly made known to
HCDE personnel their desires and wishes for L.H.’s education and did not hesitate to point out
perceived deficiencies.

They also regularly provided HCDE personnel with information

regarding Down Syndrome that they thought would assist in L.H.’s educational progress and
development. They have worked hard to supplement his education outside the classroom as well

4

by reading with him and reviewing his homework on a daily basis and by scheduling extensive
extracurricular activities for him. L.H.’s parents have high expectations for him and have
diligently tried to ensure he is challenged to reach his full potential. It was their strong and
clearly stated desire that L.H. be educated in the standard public-school setting and that he be
taught the standard curriculum.
L.H. made some progress academically during the first three years he was at Normal Park
(kindergarten through first grade), though he did not keep pace with his age-level peers. By the
end of first grade, L.H. had learned some basic math concepts, such as using manipulatives to
add and subtract numbers to twenty, telling time to the hour and half-hour, and skip-counting by
two, five, and ten for four or five steps, but overall, he was functioning at a kindergarten level.
L.H.’s independent writing ability was also at or below a kindergarten level, although he was
able to write up to two or three sentences at a time. In the area of reading, however, L.H. was
relatively advanced. Both his year-end report card and his results on the Woodcock Johnson, an
academic assessment given in March 2012, show he was reading at a mid-to-late first-grade
level, or nearly on par with his normally developing grade-level peers, although his
comprehension level was further behind.
B.

The 2012–2013 IEP

In May 2012, L.H.’s IEP team met to develop his second-grade IEP. At the meeting,
HCDE staff members queried whether, given the gap between L.H.’s abilities and second-grade
expectations, the team should consider placing L.H. somewhere other than the general-education
environment. L.H.’s parents strongly disagreed with this thinking and vocally and vigorously
insisted that L.H. remain in the regular-education classroom. Acquiescing to L.H.’s parents’
insistence, the final IEP recommended L.H. continue to be educated in a regular-education
classroom, with the aid of various special-education supports and services.

5

While L.H.’s placement remained unchanged, the goals and objectives set forth in the
IEP did not. At L.H.’s parents’ demands, the educational goals in L.H.’s 2012–2013 IEP were
tied closely to regular second-grade curricular goals. Given L.H.’s previous performance and the
professional opinions of his teachers and the staff, these goals were unrealistic. They represented
a significant step up from the goals contained in L.H.’s 2011–2012 IEP, both in number and in
difficulty. To appreciate the difference, compare the goals and objectives from the two IEPs in
the areas of language and reading (formatting has been changed for clarity):

6

)

7

(See Due Process (“DP”) Ex. 6, 2011–2012 IEP 00445–446; Pl.’s Ex. 1-2, 2012–2013 IEP at 5,
8–10.1) Notwithstanding these changes which incorporated L.H.’s parents’ demands, all of the
members of the IEP team—including L.H.’s parents and eight HCDE teachers and staff
members—agreed the goals and objectives outlined in the 2012–2013 IEP were appropriate
based on L.H.’s present levels of academic performance. (See Pl.’s Ex. 1-2 at 22 (signature
page); DP Ex. 6, Notes of May 10, 2012 IEP Meeting 00371.)
C.

Second Grade at Normal Park

As could be expected, L.H. struggled to meet these goals. From the very beginning of the
school year, his classroom teacher, Ms. Stefanie Higgs, and his special-education teacher, Ms.
Lisa Hope, were concerned he lacked the prerequisite skills to be able to perform at a secondgrade level. Both teachers, though relatively inexperienced,2 worked hard to try to bring L.H. up
to speed. Ms. Higgs gave L.H. intensive, one-on-one reading instruction for thirty minutes every
day. Ms. Hope followed this up with an hour of daily pull-out time, during which she would
review his reading and math lessons for the day, along with daily push-in time, during which she
would visit L.H. in the regular-education classroom to monitor his behavior and prompt him to
complete his work. Both teachers used creative, individualized teaching strategies, such as
songs, video modeling (recording a video of L.H. performing a task well, then showing it to him
as motivation), a token-based reward system, visual schedules and cues, manipulatives, and a
variety of instructional formats (oral, visual, kinesthetic, etc.). Ms. Hope also consulted with Ms.
Jeanne Manley, an experienced special-education teacher designated by HCDE to provide

1

The pages in this exhibit are out of order. The citation refers to the document’s original
printed pagination.
2

Ms. Higgs was in her second year of unassisted teaching; Ms. Hope had six years of
teaching experience but had never worked with a student with an intellectual disability.
8

training and support to other teachers within the district, on a number of occasions regarding
different teaching strategies to try with L.H.
Despite their efforts, L.H. did not progress as fast or as far as they had hoped. While
L.H.’s first quarter IEP progress report indicated he was on track to meet all his goals by the end
of the year, review of L.H.’s progress on the objectives underlying the goals reveals a number of
objectives toward which his teachers indicated he was making very little progress, either for
insufficient time or because he lacked prerequisite skills. (See DP Ex. 3, 2012–2013 First
Quarter IEP Progress Report.) L.H. had difficulties with one-to-one number correspondence in
math (the idea that the number “3” means three things), and could not remember basic addition
and subtraction facts. He could read on a mid-first-grade level, but he could not answer basic
comprehension questions about what he had just read. He was very dependent on adult prompts,
or “scaffolding,” to complete assignments. He had trouble coming up with and writing more
than a sentence or two without prompting or being permitted to copy pre-written sentences. His
first-quarter report card stated his progress in reading was at the “basic” level, and he was
“below basic” in the areas of speaking and listening, language, math, science, social studies, and
conduct. (See DP Ex. 6, First Quarter Progress Report 00131.)
On that last point, L.H.’s teachers noticed his behavior was particularly disruptive during
the first quarter of second grade. He would invade his classmates’ personal space, disobey his
teachers’ directions, and frequently “shut down” or refuse to work.

His first-quarter IEP

progress report relayed “[h]is behaviors have frequently impeded his learning as well as the
learning of the students around him,” and he needed to “continue to work on respecting the
personal space and possessions of others.” (DP Ex. 3 at 3.) His report card similarly noted
several subjects in which his “[b]ehavior interferes with his work.” (DP Ex. 6 at 00131.) These

9

behaviors continued to occur even after Ms. Hope implemented several of the strategies
suggested in the behavioral intervention plan contained in L.H.’s IEP.
Surmising these behavioral issues were due to frustration with the difficulty of the work,
Ms. Hope modified L.H.’s lessons until she was teaching him at a kindergarten level, with the
exception of reading, where he could work at a first-grade level.3 Ms. Hope explained she was
able to do this because Normal Park uses a “spiral approach” to curriculum, teaching students the
same skills at increasing levels of difficulty at different grade levels. Thus, when L.H. “shut
down,” she was able to drop down and teach him the same general skill set but at a less intensive
level. (DP Tr. at 209.) His teachers also attempted to minimize distraction in the classroom by
seating him toward the back of the room, away from tables with containers of distracting work
materials and the traffic of the other students.
After these adjustments, particularly the work-level modification, L.H.’s behavior
improved noticeably. Ms. Hope recounted the percentage of time he was able to work with five
or fewer adult prompts went from thirty-three percent to ninety-five percent, the amount of time
he successfully completed individually assisted work went from thirty-four percent to ninetyfour percent, and the percentage of time he demonstrated respect for others’ personal space went
from thirty-six percent to eighty-six percent. (Id. at 210.) His second-quarter IEP progress
report reflected these changes, noting his “behavior has been much improved over the past nine
weeks!” (See DP Ex. 4, 2012–2013 First Quarter IEP Progress Report at 3.4)

3

Ms. Hope made this change on the basis of several provisions in L.H.’s IEP specifically
permitting his teachers to modify assignments to meet his present levels of performance and to
address the goals and objectives contained in the IEP. (See DP Tr. 97–101; Pl.’s Ex. 1-2 at 13–
14.)
4

Several pages are missing from this progress report, so the citation refers to the internal
pagination.
10

While L.H. made strides in his behavior during the second quarter, his progress toward
the second-grade goals in his IEP remained poor. His second-quarter IEP progress report listed
three goals—in writing, reading, and math—for which his teachers no longer anticipated meeting
the goal by the end of the year. (Id. at 5 (goal 5), 10 (goal 11); see DP Ex. 6, 2012–2013 Q3 IEP
Progress Report 00318 (goal 4 for the second reporting period)). Additionally, L.H.’s progress
on every single one of his academic objectives was characterized as “very little” due to
insufficient time or a lack of prerequisite skills. (See DP Ex. 4 at 5–11.) L.H.’s teachers also
noted in several places they had modified the curriculum to meet L.H.’s present levels of
performance. (Id. at 7, 9.) To L.H.’s teachers, it was clear that until L.H. mastered certain basic
skills, such as one-to-one number correspondence, phonemics, and analytical thinking—he was
not going to be able to meet the second-grade standards outlined in his IEP goals. (See DP Ex.
16, Higgs Aff. ¶ 23; DP Tr. 433.)
D.

The 2013–2014 IEP

Shortly after receiving the second-quarter IEP progress report, L.H.’s parents requested
an IEP meeting. At the meeting, held February 6, 2013, HCDE staff members explained L.H.
was working far below grade-level expectations. Ms. Jill Levine, principal of Normal Park, told
the parents that although L.H. had benefitted from being in a regular-education setting in
kindergarten and first grade, he had now “hit a wall”5 and was no longer progressing. For these
reasons, HCDE staff felt the time had come to consider other placement options. L.H.’s parents
expressed strong opposition to the idea of placing L.H. in a dedicated special-education
classroom. They specifically objected to the lack of interaction with typically developing peers,
5

Plaintiffs argue that by using the phrase “hit a wall” Ms. Levine and others at Normal
Park had reached a conclusion that L.H. had reached his maximum academic achievement and
additional educational endeavors would be to no avail. This is an erroneous interpretation of
what Ms. Levine said and her intent. The Court thus rejects any notion that Ms. Levine or any of
the other HCDE personnel or staff had reached a decision that educating L.H. in the regulareducation setting would be futile.
11

the absence of a normal academic curriculum or standards, and separating L.H. from his
established friends—necessary if L.H. were to be placed in a CDC, since Normal Park did not
have one. After a period of contentious discussion, the parents abruptly left the meeting.
Over the course of the next four months, the two sides entrenched. Four lengthy and
heated IEP planning meetings were held, at which the parents contested HCDE’s assessment of
L.H.’s present levels of performance, questioned the qualifications of L.H.’s teachers, and
presented evidence regarding the benefits of mainstreaming and the downsides of placement in
the CDC. HCDE, in turn, reemphasized L.H.’s poor academic performance and the necessity of
a CDC placement. Unfortunately, it appears from a review of the IEP meeting notes and
intervening email communications that the relationship between the parties became quite
strained.
On May 6, 2013, over the parents’ objections, L.H.’s 2013–2014 IEP was finalized. The
academic goals in this IEP were not tied to third-grade regular-education standards, but were
derived strictly from L.H.’s present levels of performance. Furthermore, because HCDE had
concluded L.H. needed more extensive supports than could be provided in a regular-education
classroom at Normal Park, the IEP team determined L.H. would need to receive his academic
instruction in a CDC at Red Bank Elementary.
Specifically, the proposed IEP provided L.H. would receive ninety minutes of reading
instruction, ninety minutes of math instruction, and thirty minutes of pre-vocational instruction, a
total of three and a half hours per day, in a special-education classroom. (See Pl.’s Ex. 57, 2013–
2014 IEP at 25.) The proposed IEP further provided L.H. would participate with non-disabled
peers for lunch and related arts—things like music, art, and physical education—during which

12

time he would also receive an additional thirty minutes of social/emotional special education via
inclusion, or push-in instruction.6 (Id. at 24–25.)
The proposed IEP also indicated L.H. would be educated pursuant to an alternative
curriculum. (See id. at 9–13.) This alternative curriculum would have consisted of a program
called the Unique Learning System (the “ULS”), an online special-education software program
designed to teach reading and math within the framework of monthly science and social studies
units, supplemented as necessary by more focused reading and math lessons.

The ULS

curriculum is not tied specifically to Tennessee general-education standards, but it is aligned
with Common CORE standards.

6

The Court questions HCDE’s contention that because the 2013–2014 IEP does not
specifically state L.H. would receive instruction in science and social studies in the specialeducation environment, he would necessarily have been taught these classes in the generaleducation setting with regularly developing peers. This contention is belied by the proposed
IEP’s statement, under the section headed “[e]xplain the extent, if any, in which the student will
not participate with non-disabled peers in . . . the regular class” that L.H. would “receive
academic and pre-vocational instruction in the Special Education setting,” but would “participate
in related arts classes with his non-disabled peers.” (Pl.’s Ex. 57 at 26.) The most natural
reading of this statement is the two categories of instruction were intended to be mutually
exclusive; that is, L.H. would receive all of his academic and pre-vocational instruction—
including science and social studies—in the CDC, and he would attend all related arts classes in
the regular-education setting.
This understanding is corroborated by the structure of the CDC curriculum, which, as
noted below, uses science and social studies as vehicles to teach math and reading. Ms. Willeata
Kendrick, HCDE’s special-education supervisor, clarified this point in her testimony at the dueprocess hearing. She explained that under the proposed IEP, L.H. would have received the bulk
of his instruction in science and social studies in the CDC as part of the Unique Learning System
curriculum. He would have received additional instruction in the regular-education science and
social studies classes only when there were “hands-on activities” such as experiments in which
he could participate. (See DP Tr. 489.) The Court finds this explanation to be more plausible
than the explanation given by Ms. Margaret Abernathy, HCDE’s director of exceptional
education: that L.H. would have fully participated in regular-education science and social studies
classes in addition to the science- and social-studies-based CDC curriculum.
The Court does understand that things on the ground are often different than what is
described in plans or even directives. So it is possible HCDE intended to provide instruction in
these subjects as they contend. However, the plan itself does not state this.
13

The CDC itself is small and fairly self-contained: at the time, the CDC at Red Bank had
two teachers and nine students. Although students in the CDC have some opportunities to
participate with non-disabled peers in lunch and related arts, experts from both sides agreed that,
practically speaking, there is little interaction between the two groups of students. While in
music or at lunch, CDC students sit and interact almost exclusively with each other. Also, while
nearly all of the students in the CDC were verbal to some degree or another, and most
demonstrated an ability to work with fewer adult prompts than L.H. had been requiring, none
appeared to be as advanced as L.H. in reading or in their desire or ability to socialize.
E.

The Montessori School of Chattanooga

L.H.’s parents rejected the IEP proposed by HCDE. Instead, when the 2013–2014 school
year began, they enrolled L.H. at TMS, where he has been for the past three years. TMS is a
private school that operates pursuant to the Montessori Method, an open-ended, child-directed
theory of education, in contrast to the more traditional, highly structured, teacher-directed
approach used by most schools. The TMS curriculum, called Albanesi, is aligned with Common
CORE standards and covers language and math, as well as a variety of so-called “cultural”
subjects, such as botany, zoology, Spanish, cooking, and history. Classrooms at TMS are multigrade, and students proceed through the curriculum at their own pace. Every two weeks, the
teacher prepares an individualized lesson plan for each student, and each day, the student picks
the order in which he or she works on those lessons. At the end of the two weeks, the teacher
prepares a new lesson plan based on the student’s progress.
Some aspects of the Montessori curriculum appear to be a good fit for L.H. For instance,
instruction at TMS is highly differentiated. Each student is taught at his own level in each
subject.

Also, the use of manipulatives to teach abstract concepts features highly in the

curriculum, which plays to L.H.’s learning style. Other aspects of the curriculum, however,

14

appear a less-than-ideal fit for L.H. Montessori’s child-directed learning philosophy presupposes
a certain amount of independence and self-motivation on the part of the child, and these are areas
of particular weakness for L.H. The Court heard no evidence that TMS itself or the teachers at
TMS had any experience in instructing intellectually disabled students or students with Down
Syndrome. Also, TMS does not have a systematic approach to teaching students with special
needs or language impairment, nor are any of the teachers at TMS trained in special education.
L.H.’s class sizes at TMS have ranged from seventeen to eighteen students. In addition
to the classroom teacher, L.H. has had a full-time aide to help him with his work and keep him
on task.7 L.H.’s parents are responsible for the aide’s compensation, although she is technically
employed by TMS. L.H. reportedly gets along well with his classmates, all of whom are
typically developing peers. L.H. continues to have some issues respecting others’ personal space
and behaving in socially inappropriate ways when he gets excited, but he is generally friendly,
respectful, and well-behaved.
F.

Progress at The Montessori School

The parties offer differing assessments of L.H.’s academic progress while at TMS.
According to TMS testing and progress reports, L.H. has made steady progress. At the time of
the administrative hearing, in the first semester of third grade, TMS considered L.H. to be
working on a first-grade level in math, a beginning second-grade level in language, and a thirdgrade level in his cultural subjects. (See DP Tr. 628–629.) By the end of fourth grade, L.H.’s
report card indicated he had progressed to working on second-grade geometry (shape names) and
third-grade language skills. L.H.’s fourth-grade report card omits any reference to L.H.’s grade
level for general math. Instead, it provides only narrative information regarding L.H.’s progress
in math, such as noting he was working on fractions, learning to read large numbers, learning the
7

L.H.’s mother testified that in fifth grade, the aide was only with L.H. for half days, as
they are working to reduce his dependence on the aide.
15

concept of “carrying,” and working on skip-counting; “numbers about [sic] 3” were
“challenging” for him; he needed frequent review of measurement concepts; and his progress
was being hindered by deficiencies in his skip-counting skills. (See Pl.’s Ex. 11 at 5.)
L.H.’s fourth-grade standardized testing scores provide the most dramatic—and
enigmatic—evidence of L.H.’s academic improvement at TMS. According to the results of a
standardized test administered in the spring of 2015, known as the ERB Comprehensive Testing
Program, among all fourth-graders in the nation, L.H.’s performance ranged from the 39th
percentile for verbal reasoning to the 66th percentile for reading comprehension. (Pl.’s Ex. 12,
4th Grade ERB Test Scores 1.) His scores in mathematics, vocabulary, quantitative reasoning,
and writing fell within this range. (Id.) Curiously, these results received the barest of mentions
during the evidentiary hearing. The Court also finds it significant that Plaintiffs provided no
indication of the extent of supports, modifications, or accommodations L.H. received during the
administration of the test.
HCDE conducted several assessments of L.H. during the fall of 2015 and obtained very
different results.

HCDE’s math coach, Ms. Jamelie Johns, assessed L.H.’s mastery of

mathematics via a computerized math assessment called the i-Ready Diagnostic Assessment.
Ms. Johns also assessed L.H.’s abilities by asking him questions following completion of the
computerized test. Based on the results of the test and her interaction with L.H., Ms. Johns
opined that overall, L.H. was performing on a kindergarten level. Ms. Johns noted L.H. could
perform a few skills she would classify as second- and third-grade skills, but in her opinion, he
had not internalized some fairly basic mathematical concepts and skills, such as one-to-one
number correspondence and the ability to consistently process numbers larger than ten.
HCDE’s reading coach, Ms. Debbie Rosenow, administered a Fountas & Pinnell reading
assessment, characterized as the “gold standard” in reading assessments. L.H. began by reading

16

through a series of word lists of increasing difficulty, designed to approximate the grade level at
which he is able to process text. L.H. read through the third-grade word list, but could not
complete the fourth-grade list. Based on the results of the word-list test, Ms. Rosenow gave L.H.
a beginning-third-grade-level book to read. Fountas & Pinnell directs that if a child is unable to
read a book with at least 95% accuracy, it may indicate the text is too hard for the child. L.H.
was able to read the book, but at a fluency rate about half that of a normal third-grader, and not at
the recommended 95% accuracy level. When asked questions about the text, L.H. had great
difficulty recounting any information from the text. Ms. Rosenow concluded from this that the
book was too hard for L.H., and dropped down to a beginning-to-mid-second-grade text. L.H.
read this book with 99% accuracy and was able to answer some literal questions about the text,
though he could not answer questions requiring inference-drawing.
Ms. Rosenow testified reading ability hinges on at least two types of processing: visual
processing, or the ability to see and decode a word, and meaning processing, or the ability to
understand the meaning of the words being decoded. The most accurate assessment of an
individual’s reading level is where the individual’s visual processing and meaning processing are
equally taxed. Based on her assessment, L.H. is functionally able to decode words at a thirdgrade level, but the level at which his ability to comprehend matches his ability to decode is a
mid-second-grade level. Ms. Rosenow recommended instructing L.H. primarily at this level for
now, while occasionally providing a more rigorous text to allow him to practice decoding
strategies and build vocabulary.
L.H.’s results on the Fountas & Pinnell assessment conducted by HCDE in the fall of
2015 were largely consistent with his results on a series of reading assessments administered at
Plaintiffs’ behest during the summer of 2015 at a literacy clinic for Down Syndrome children
operated by the University of Saint Joseph in Connecticut. These assessments were overseen by

17

Plaintiff’s expert, Dr. Kathleen Whitbread. L.H.’s results on the CORE Vocabulary Screening
indicated his vocabulary knowledge was strong through the second-grade level, but he may
experience difficulties comprehending text at or beyond the third-grade level. Similarly, L.H.’s
results on the San Diego Quick Assessment of Reading Ability reflected an ability to read
independently at a second-grade level, but frustration at the third-grade level. The only result
that was somewhat out of line with Ms. Rosenow’s evaluation was L.H.’s score on the CORE
Reading Maze Assessment, a test of reading comprehension. His results on this test showed him
to be comprehending at a third-grade level, although Ms. Rosenow testified these results are
perhaps more reflective of his sentence-by-sentence comprehension, rather than an accurate
gauge of his understanding of the passage as a whole.
The Connecticut assessment also provided data on L.H.’s component skills in the areas of
phonological segmentation and phonics. No grade-level estimates were given, but L.H. appeared
to have difficulty segmenting words into individual phonemes and difficulty decoding nonwords, as well as deficiencies in several fundamental phonics skills. Ms. Rosenow testified these
results were consistent with what she observed during the Fountas & Pinnell assessment. She
opined L.H. may be relying on his visual memory to recall words, rather than actually decoding
the phonetic structure of the word, and he likely needs additional instruction in phonics.
Overall, the Court does not find the parties’ assessments of L.H.’s progress and present
levels of performance at TMS to be inconsistent. Apart from the TMS standardized testing
results, which the Court discounts for the reasons mentioned above, the evidence supports a
finding that L.H.’s overall math skills are at approximately a first-grade level, with a few skills
above and a few skills below that level; L.H.’s ability to decode words is largely at a third-grade
level, although certain basic phonics and phonological skills are significantly more impaired; and
his reading comprehension is at an early-second-grade level.

18

G.

The Court’s Overall Assessment of the Testimony

This is not a case where parents were confronted with uncaring and heartless bureaucrats
unconcerned about the progress and well-being of L.H. If that were the case, it would not be as
difficult as this case has turned out to be. Contrary to the suggestion by Plaintiffs that there was
an effort to remove L.H. from Normal Park because of concerns his test scores would depress
Normal Park’s overall test scores, the Court finds that at all times the staff and personnel at
Normal Park were operating with a sincere and heartfelt desire to do what was in L.H.’s best
interest. No one could observe the testimony given before the Court and not conclude that both
the parents and the staff and personnel at Normal Park care a great deal about L.H. This fact was
palpably demonstrated during the testimony of the child’s mother, D.H., and the testimony of Jill
Levine, the principal of Normal Park. Both of their testimonies were moving, sincere, and
obviously motivated by what each believed to be the best interest of L.H.

Both became

emotional while on the witness stand, and the Court could see tears in their eyes. This genuine
concern was also demonstrated by the other staff and personnel of Normal Park.
The parties reach diametrically different conclusions as to what is in L.H.’s best interest,
but the Court attributes that to their perspectives, the difference in their experience in earlychildhood education, and the degree of objectivity and realism each brings to the issue. D.H.’s
perspective leads her to conclude it is in L.H.’s best educational and life interests to attend a
school where he is taught on the same level as his same-age peers and remain in a regulareducation class. Moreover, D.H. strongly desires L.H. to remain in regular-education classes at
Normal Park. Principal Levine’s perspective leads her to conclude L.H. will not be able to keep
pace with his same-age peers and would fall farther and farther behind while in the regulareducation classroom at Normal Park. She concludes Normal Park has made its best efforts and
has not been able to provide L.H. with the educational benefit and progress he deserves.

19

Accordingly, she concludes L.H.’s best educational and life interests would not be furthered at
Normal Park but rather would be better met in another educational setting.

III.

STANDARD OF REVIEW
Under the IDEA, any party aggrieved by the findings and decision made by the state

agency regarding a due-process complaint may seek review in federal district court. 20 U.S.C.
§ 1415(i)(2)(A). The district court “shall receive the records of the administrative proceedings;
. . . shall hear additional evidence at the request of a party; and . . . basing its decision on the
preponderance of the evidence, shall grant such relief as the court determines is appropriate.” Id.
§ 1415(i)(2)(C).
From this mandate, the Supreme Court has distilled what has been termed a “modified de
novo” standard of review: a reviewing court “should make an independent decision based on the
preponderance of the evidence, but also should give ‘due weight’ to the determinations made
during the state administrative process.” McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d
663, 669 (6th Cir. 2003) (quoting Rowley, 458 U.S. at 206). This standard requires reviewing
courts to strike a balance between deference and policy-making. They may not “simply adopt
the state administrative findings without an independent re-examination of the evidence” on the
one hand, nor may they “substitute their own notions of sound educational policy for those of the
school authorities which they review” on the other. Knable ex rel. Knable v. Bexley City Sch.
Dist., 238 F.3d 755, 764 (6th Cir. 2001) (citations omitted).
The amount of weight due to administrative findings varies based on several factors,
including “whether the finding is based on educational expertise,” which the administrative factfinder is presumed to have, McLaughlin, 320 F.3d at 669, and the extent to which the
administrative findings are supported or controverted by the new evidence received by the

20

reviewing court, Deal v. Hamilton Cty. Dep’t of Educ., 258 F. App’x 863, 865 (6th Cir. 2008)
(Deal II).

IV.

ANALYSIS
Judicial review in suits under the IDEA has both a procedural component and a

substantive component. Gibson v. Forest Hills Local Sch. Dist. Bd. of Ed., No. 14-3575, 2016
WL 3771843, at *8 (6th Cir. July 15, 2016). First, the court looks at whether the school district
complied with the procedural requirements of the IDEA in developing the child’s IEP. Id.
(citing Deal I, 392 F.3d at 853). If these procedural requirements are met, the court must then
determine whether the resulting IEP complies with the IDEA’s substantive requirements. See id.
For a plaintiff to prevail, he must establish by a preponderance of the evidence the proposed IEP
was not appropriate under one or both of these standards. Id.
When parents decide to place their child in private education, they may obtain retroactive
reimbursement from the school district if (1) the school district’s proposed placement violated
the IDEA and (2) the private placement was proper under the IDEA. Deal I, 392 F.3d at 855.
“A private placement is proper under the IDEA if the education provided in the private
placement is reasonably calculated to enable the child to receive educational benefits.” Id.
Here, Plaintiffs do not seriously dispute HCDE’s compliance with the IDEA’s procedural
requirements.8 Thus, the Court will proceed to examine whether L.H.’s proposed IEP complies
with the IDEA’s substantive requirements.
8

The possible exception is Plaintiffs’ contention that HCDE committed a procedural
violation when Ms. Hope altered L.H.’s 2012–2013 IEP to begin teaching L.H. at a kindergarten
level without calling an IEP meeting. The Court finds no merit to this argument. L.H.’s IEP
explicitly provided that his teachers could modify his assignments to meet his present levels of
performance. (See Pl.’s Ex. 1-2 at 13–15.) The Court agrees that at some point, continuing to
focus on a child’s present levels of performance to the exclusion of his or her IEP goals when it
is clear that doing so will cause the child to fail to meet those goals, without calling for an IEP
21

A.

Relevant Substantive Requirement under the IDEA

To begin, the Court must resolve a dispute about which of the IDEA’s substantive
requirements is at issue. The IDEA includes at least two substantive requirements. First, the IEP
must be “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458
U.S. at 206. The Sixth Circuit Court of Appeals has interpreted this requirement to mean the IEP
must be reasonably calculated to “confer a ‘meaningful educational benefit’ gauged in relation to
the potential of the child at issue.” Deal I, 392 F.3d at 862 (emphasis added). Second, the IDEA
contains a “requirement that handicapped children be educated alongside non-handicapped
children to the maximum extent appropriate”—i.e., in the least restrictive environment.
McLaughlin, 320 F.3d at 673 (quoting Roncker, 700 F.2d at 1062).
As a technical matter, the least-restrictive-environment mandate is probably best
conceived as a subcategory of the Rowley-Deal FAPE analysis, but evaluated using the LREspecific test set forth by the Sixth Circuit Court of Appeals in Roncker. See A.S. ex rel. S. v.
Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 540 (D. Conn. 2002) (observing that while “Rowley
demarcates an outer limit to the IDEA’s LRE preference, Rowley does not provide guidance for
determining whether, in a specific case, the IDEA’s LRE requirement has been met,” and citing

meeting to discuss adjusting the IEP goals, violates the IDEA. Given that L.H.’s IEP explicitly
contemplated modifying his assignments to meet his present levels of performance, however, the
Court concludes that it was reasonable to afford Ms. Hope some amount of time to see if
reducing the difficulty of L.H.’s instructional level would allow him to build the prerequisite
skills to get back on track with his IEP goals, before calling an IEP meeting to discuss changing
those goals.
Here, Ms. Hope attempted the curriculum modification for at most nine weeks before an
IEP meeting was requested. The Court does not find this to be an unreasonable amount of time.
Moreover, even if this delay did amount to a procedural violation, the Court does not find it to
have resulted in substantive harm to L.H. See Deal II, 392 F.3d at 854 (“Only if a procedural
violation has resulted in substantive harm, and thus constitutes a denial of a FAPE, may relief be
granted.”). For these reasons, the Court will DENY Plaintiffs’ motion for judgment as to this
this claim.
22

various circuit cases, including Roncker, that “set forth tests to be used in specific cases
implicating the IDEA’s LRE requirement”). In other words, placement in the least restrictive
environment is not the goal in and of itself, but is desirable as a means of advancing the
education of the child in question.
HCDE contends the issue is whether the 2013–14 IEP would have provided L.H. with a
meaningful educational benefit, and thus the Court should apply the FAPE analysis articulated in
the Rowley-Deal line of cases. (See, e.g., Doc. 169 at 45.) Plaintiffs assert this case is about
whether the 2013–2014 IEP proposed to educate L.H. in his least restrictive environment, and
thus the Court should apply the specialized LRE analysis set forth in Roncker. (See, e.g., Doc.
170 at 3.)
The Court will adopt Plaintiffs’ position. HCDE’s position is based entirely on the Sixth
Circuit Court of Appeals’s decision in McLaughlin v. Holt Public Schools Board of Education.
The contested IEP in McLaughlin provided the child would be completely mainstreamed with
regularly developing peers during the entirety of the half-day kindergarten class and would
receive additional instruction in a separate special-education classroom the remaining half of the
day. 320 F.3d at 667–68. The parents challenged the IEP based on their desire to have their
child mainstreamed at her neighborhood school and receive the additional instruction in a
resource room there, rather than mainstreaming the child at a different school and receiving
additional instruction in a specialized classroom at that school. Id. at 668. The Court of Appeals
characterized the dispute as one regarding the location, rather than the extent, of mainstreaming,
and held that because the child was already being mainstreamed to the maximum extent
possible—the entire half-day kindergarten class—the least restrictive environment was not
implicated. Id. at 671–72. As a result, the Court of Appeals determined Roncker’s leastrestrictive-environment analysis was inapplicable. Id.

23

The present case is readily distinguishable from McLaughlin. Here, as Plaintiffs argue,
the extent of mainstreaming is the central issue in dispute. The 2013–2014 IEP did not propose
to fully mainstream L.H.; rather, the proposed IEP would have had L.H. receive all or
substantially all of his academic and pre-vocational instruction in the CDC. This would have
constituted a significant change from the previous school years, in which L.H. was mainstreamed
in the regular-education classroom with a brief period of daily pull-out instruction. (Compare
Pl.’s Ex. 57, 2013–2014 IEP at 26 with Pl.’s Ex. 1-2, 2012–2013 at 21.) Accordingly, the Court
will follow the least-restrictive-environment analysis laid out by the Sixth Circuit in Roncker.
B.

Roncker’s Least-Restrictive-Environment Analysis

In Roncker, the Court of Appeals, noting the “very strong congressional preference” in
favor of mainstreaming, concluded “the proper inquiry is whether a proposed placement is
appropriate under the [IDEA].” 700 F.2d at 1063. “[W]here a segregated environment is
considered superior, the court should determine whether the services which make that placement
superior could feasibly be provided in a non-segregated setting. If they can, the placement in the
segregated [setting] would be inappropriate under the Act.” Id.
The Roncker court identified three categories of children for whom mainstreaming would
not be appropriate: (1) where the child would not receive a benefit from mainstreaming;
(2) where any marginal benefits of mainstreaming would be far outweighed by the benefits of a
separate setting that could not feasibly be provided in a non-segregated setting; or (3) where the
child would be a disruptive force in the non-segregated setting. Id.; accord Doe v. Bd. of Educ.
of Tullahoma City Sch., 9 F.3d 455, 460 (6th Cir. 1993). But see McLaughlin, 320 F.3d at 673
n.4 (recounting, in dicta, a modified list, denominated as factors, not categories). In analyzing
whether mainstreaming is appropriate for a child, courts are to consider not only the child’s
educational needs, but also his or her physical and emotional needs. Id.

24

Hence, the Court must determine whether L.H. falls into any of the three categories of
children for whom mainstreaming is not appropriate.

If he does not, the proposed CDC

placement in the 2013–2014 IEP violates the IDEA’s least-restrictive-environment mandate.
1.

Could L.H. receive a benefit from mainstreaming?

The Court finds Plaintiffs have established L.H. could receive a benefit from inclusion in
the general-education environment. This finding is supported by ample evidence, including
expert testimony regarding the benefits students with Down Syndrome typically realize from
mainstreaming and testimony regarding L.H.’s actual progress during the years he was
mainstreamed at Normal Park. The evidence HCDE musters in opposition, while not without
weight, is ultimately unpersuasive: it does not prove L.H. could not receive a benefit from
inclusion, only that L.H. could not achieve results commensurate with those achieved by his nondisabled peers. Because this is not the standard by which progress is measured under the IDEA,
the Court concludes L.H. does not fall within Roncker’s first exception to the IDEA’s
mainstreaming mandate.
a.

Expert testimony regarding the typical benefits of inclusion for
children with Down Syndrome

Plaintiffs’ experts offered persuasive evidence that educating children with Down
Syndrome in the general-education environment typically provides a greater benefit than
education in a segregated setting. Dr. Kathleen Whitbread, an expert in the education of children
with Down Syndrome with thirty-five years’ experience in the field as a teacher, researcher,
author, and consultant, testified there is virtually no disagreement among researchers that
children with Down Syndrome fare better, both socially and academically, the more inclusive
their educational experience is. Dr. Whitbread’s expert report cites several studies finding
students with Down Syndrome who are educated in inclusive settings experience significant
benefits, particularly in the area of literacy, but also in their standardized test scores, their
25

behavior, and their ability to live independently following their education. (Pl.’s Ex. 6b at 11–
12.)
Dr. Buckley, acknowledged by witnesses for both sides to be the leading expert in the
field of education of children with Down Syndrome, submitted an expert report supporting Dr.
Whitbread’s conclusions regarding the benefits of mainstreaming.9

Dr. Buckley’s report

references a 2006 study done in the United Kingdom of students with Down Syndrome between
the ages of 11 and 20 finding that students educated in mainstream classrooms were significantly
more advanced academically than students educated in segregated schools.

(Pl.’s Ex. 5.)

Specifically, the study found that compared to the students who had been educated exclusively in
segregated settings, mainstreamed students were an average of 3.3 years ahead in reading and
writing and 2.5 years ahead in their expressive language abilities. (Id. at 7–8.) The UK study
also found that students in fully inclusive settings who are able to model their behavior after nondisabled peers had fewer behavioral problems than did students with Down Syndrome educated
in segregated settings. (Id. at 7.) Dr. Buckley’s report also referenced a 2012 article in which
the authors conducted a systematic review of forty years of international research on the effects
9

Plaintiffs retained Dr. Buckley as an expert witness and intended to have her testify via
video-link during the hearing. But during Plaintiffs’ case-in-chief, HCDE asked Dr. Whitbread a
series of questions from the report. After several questions, HCDE’s counsel moved the report
into evidence, commenting that while he believed Plaintiffs’ counsel had intended to tender the
report, he would go ahead and do it himself. Thereafter, Plaintiffs chose to forego calling Dr.
Buckley to testify about her report. Instead, Plaintiffs relied on the opinions contained in the
report, referencing it multiple times throughout the hearing.
At the conclusion of the hearing, HCDE contended that it had submitted the report only
for cross-examination purposes, and not as substantive evidence. It is true that evidence may be
admitted not for its truth, but solely to impeach. While that may have been HCDE’s initial
intent, HCDE chose to tender the entire report into evidence without any request that it be used
for a limited purpose. In fact, when offering the report, HCDE’s counsel explicitly referenced
Plaintiffs’ intent to introduce and use the report, intimating he was admitting the report to save
Plaintiffs the trouble. Then, when Plaintiffs did use the report substantively, HCDE never
objected or otherwise gave any indication of having offered the report for a limited purpose.
HCDE is therefore estopped from asserting it did not intend the report to be used substantively.
26

of mainstreaming on children with Down Syndrome. (Id. at 9.) Overall, the authors found
mainstreamed students developed better language and academic skills than students in
segregated settings, even accounting for selective placement of students. (Id.) In sum, Dr.
Buckley opined the great weight of research supports the conclusion that for most children with
Down Syndrome, inclusion in the regular-education classroom provides an appreciable benefit.
In response, HCDE offered the testimony of its consultant, Dr. Susan Kabot, a licensed
speech and language pathologist and an acknowledged expert in the field of educating children
with intellectual disabilities.

Dr. Kabot agreed the research was almost entirely favorable

regarding the benefits of mainstreaming children with Down Syndrome, and acknowledged she
had been unable to find any studies showing inclusion was not beneficial for Down Syndrome
students. Dr. Kabot opined, however, that due to certain limitations in the studies, it is difficult
to determine conclusively that inclusive settings are generally better than non-mainstreaming
settings.

Dr. Kabot identified several limitations with the design of many of the studies,

including a lack of experimental controls and randomization, small sample size, the inability to
control for different teaching techniques in inclusive classrooms and non-mainstreaming
classrooms, and a lack of easily comparable results due to the difficulty of using standardized
instruments to assess students with Down Syndrome. Dr. Kabot acknowledged, however, that
most, if not all, of these limitations are inherent due to the nature of the subject being researched.
Because the incidence of Down Syndrome is fairly low, it is difficult to obtain a large sample of
students with Down Syndrome to study. Additionally, it is not feasible to randomly assign
students to different settings solely for the purpose of gauging the relative benefit of nonmainstreaming versus inclusive settings.
The Court finds the research regarding inclusion of children with Down Syndrome to be
fairly consistent in concluding that students with Down Sydrome generally receive appreciable

27

benefits from mainstreaming. Dr. Kabot did not disagree with this conclusion; she simply
pointed out that the results of the studies were not airtight, due to the nature of researching a
relatively rare condition in the inherently sensitive and ethically fraught area of childhood
education. The Court appreciates these limitations, but does not find them to negate the findings
of these studies in toto.
While the benefits of mainstreaming are uncontroversial as a general proposition,10 this
does little to advance Plaintiffs’ case unless Plaintiffs can show the proposition holds true for
L.H.
b.

L.H.’s progress while mainstreamed at Normal Park

Plaintiffs seek to establish the applicability of this general premise to L.H. by showing he
did in fact make progress and obtain a benefit during the four years he was mainstreamed at
Normal Park. HCDE generally does not dispute that L.H. made progress during the three years
leading up to his second-grade year. (See, e.g., DP Ex. 6, Notes of February 6, 2012 IEP
Meeting 00336 (Ms. Levine acknowledges L.H. benefited from being in an inclusive
environment at Normal Park during kindergarten and first grade); Pl.’s Ex. 1-17, 2011–2012
Report Card at 1 (“[L.H.] is very close to reaching the end of the first-grade [reading] goal. He is
reading more independently and fluently. He has come a long way since the starting of the year.
Way to go!”).) Where the parties’ accounts diverge is the 2012–2013 school year. HCDE’s
position is that L.H. did not make appreciable progress during this year. HCDE bases this
conclusion on testimony from L.H.’s teachers, corroborated by L.H.’s 2012–2013 IEP progress
reports, that he made very little progress toward his second-grade-based IEP goals. Plaintiffs’
position is that L.H.’s progress should be measured in terms of his own abilities, and under this
10

In fact, this appears to be a basic assumption of the IDEA. See 20 U.S.C. § 1400(c)(5)
(“Almost 30 years of research and experience has demonstrated that the education of children
with disabilities can be made more effective by . . . ensuring their access to the general education
curriculum in the regular classroom, to the maximum extent possible.”).
28

standard, L.H. continued to make progress and receive a benefit from mainstreaming during
second grade.
i.

Measuring progress under the IDEA

The basic question the Court must resolve is the appropriate standard by which to
measure whether a child is making progress and receiving a benefit in the regular-education
environment. Does a child have to be able to “keep pace with the curriculum” in order to be
mainstreamed? Or is the propriety of mainstreaming determined based on the child’s ability to
make reasonable progress toward individualized goals aligned in some way with grade-level
standards? The Court concludes, based on case law and the IDEA itself, that the latter standard
is correct.
A review of the nature and purpose of IEP goals is a helpful starting point. Every child
receiving services under the IDEA must have an IEP containing “a specific statement of the
child’s current performance levels, the child’s short-term and long-term goals, the educational
and other services to be provided, and criteria for evaluating the child’s progress.” Knable, 238
F.3d at 763 (citing 20 U.S.C. § 1401(a)(20)). Regarding the IEP goals, the IDEA provides they
must be “measurable annual goals . . . designed to . . . meet the child’s needs that result from the
child’s disability to enable the child to be involved in and make progress in the general education
curriculum.” 20 U.S.C. § 1414(d)(1)(A)(i)(II).
From these provisions, the Court divines the following relevant principles. IEP goals are
to be firmly grounded in a child’s current abilities, but aligned with, or pointed toward, the
applicable general-education standards for the child’s current grade level. The role of specialeducation services and supports, then, is to enable the child to make appropriate progress toward
these goals, thereby accessing the general-education curriculum as intended by the IDEA. See
20 U.S.C. § 1401(29) (explaining the purpose of aids, services, and supports is “to enable

29

children with disabilities to be educated with nondisabled children to the maximum extent
appropriate”). To put it in more concrete terms, if a child’s current level of performance is the
ground, and the general-education grade-level standard is the roof, special-education supports
and services provided pursuant to an IEP are intended to function as a ladder upon which a child
can climb from his or her current level of performance toward the general-education curriculum.
Sticking with this analogy, the relevant question is how far and how fast a child must
climb that ladder to remain in the regular-education classroom.

The language of

§ 1414(d)(1)(A)(i)(II)—that the IEP must contain “annual goals . . . designed to . . . enable the
child to be involved in and make progress in the general education curriculum”—strongly
implies that IEP goals need not be pegged to the top of the ladder, with mainstreaming
predicated on achieving those goals. Rather, IEP goals should be set as far up the ladder as the
child can reasonably be expected to progress within one school year.
What the IDEA implies, the case law makes explicit: a child need not master the generaleducation curriculum for mainstreaming to remain a viable option. See, e.g., K.E. v. Indep. Sch.
Dist. No. 15, 647 F.3d 795, 810 (8th Cir. 2011) (holding the IDEA does not require a child to
achieve results commensurate with those of nondisabled children on the child’s grade level);
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1047 (5th Cir. 1989) (“[W]e cannot predicate
access to regular education on a child’s ability to perform on par with nonhandicapped
children.”)11; Mavis v. Sobol, 839 F. Supp. 968, 988 (N.D.N.Y. 1993) (“Given the fact that the
11

The Court of Appeals for the Fifth Circuit’s cogent discussion of this point (in relation
to the Education for All Handicapped Children Act (EHA), a materially similar predecessor
statute to the IDEA) is worth setting out at length:
States must tolerate educational differences; they need not perform the
impossible: erase those differences by taking steps to equalize educational
opportunities. As a result, the Act accepts the notion that handicapped students
will participate in regular education but that some of them will not benefit as
much as nonhandicapped students will. The Act requires states to tolerate a wide
30

IEP process is designed in part to define satisfactory education for each child on an individual
basis and that this process is part of the statutory scheme, we cannot conclude that Congress
intended mainstreaming to be restricted to those who could progress from grade to grade in the
normal academic program.”) (quoting Thornock v. Boise Indep. Sch. Dist. No. 1, 767 P.2d 1241,
1250 (Idaho 1988)).
Rather, “the appropriate yardstick is whether [the child], with appropriate supplemental
aids and services, can make progress toward [the child’s] IEP goals in the regular education
setting.” See A.S. ex rel. S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 546 (D. Conn. 2002);
see also Mavis, 839 F. Supp. at 988 (“[T]he ability of the child to be mainstreamed successfully
will depend on the goals of the IEP and the child’s achievement of those goals.”); Cty. of San
Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1462 (9th Cir. 1996) (“To measure
whether a child benefits from the current educational services she receives, the IEP team
determines whether there is progress toward the central goals and objectives of the IEP.”).
ii.

How HCDE gauged L.H.’s progress

Notwithstanding the acknowledgement by HCDE that “[t]he law does not require L.H. to
master the general education curriculum” (e.g., Doc. 169 at 41 n.8), the record is replete with

range of educational abilities in their schools and, specifically, in regular
education—the EHA’s preferred educational environment. Given the tolerance
embodied in the EHA, we cannot predicate access to regular education on a
child’s ability to perform on par with nonhandicapped children.
We recognize that some handicapped children may not be able to master
as much of the regular education curriculum as their nonhandicapped classmates.
This does not mean, however, that those handicapped children are not receiving
any benefit from regular education. Nor does it mean that they are not receiving
all of the benefit that their handicapping condition will permit. If the child’s
individual needs make mainstreaming appropriate, we cannot deny the child
access to regular education simply because his educational achievement lags
behind that of his classmates.
Daniel R.R., 874 F.2d at 1047.
31

evidence that HCDE staff held L.H. to just such a standard. This is understandable, because the
IEP adopted at the parents’ insistence incorporated the general-education curriculum as the goal.
So it would be surprising if HCDE personnel had not made reference to the general-education
curriculum. Ms. Hope, L.H.’s second-grade special-education teacher, testified at the dueprocess hearing that she was very concerned at the beginning of the year because she knew
“what would be expected of [L.H.] in the regular-ed[ucation] curriculum.” (DP Tr. at 181.)
When asked whether L.H. had made progress during second grade, she testified he had made
some progress, but he “was not able to meet those second[-]grade standards outlined in his IEP”
and he simply “did not get to the second[-]grade standards as his IEP was written.” (DP Tr. at
243.) In her affidavit, which was introduced into evidence at the due-process hearing, Ms. Hope
averred that despite her best efforts, she “simply could not close the gap between L.H.’s levels of
performance and the rigorous expectations of the second[-]grade regular[-]education curriculum
in the inclusion setting.” (DP Ex. 7 at 13.)
Likewise, Ms. Higgs, L.H.’s classroom teacher, testified she was able to find some
educational strategies L.H. found engaging, but “they weren’t on the second[-]grade level.” (DP
Tr. at 369.) Ms. Higgs also averred L.H. needed to be in the CDC because, given his present
levels of performance, “expecting him to perform at the level of a typical second[-]grader would
be futile.” (See DP Ex. 16 at 10.) Ms. Higgs concluded by opining that even if L.H. had
remained in the regular-education setting, he would have been held back because he “failed
second grade.” (Id.)
Nor was this view limited to L.H.’s teachers. Ms. Manley, the experienced specialeducation teacher HCDE relied on to teach the teachers, testified L.H. had not made substantial
progress during second grade because, “given his present levels of performance,” the effort of
trying to “keep[] up” with the “rigor and pace of the second[-]grade curriculum was just too

32

much of a challenge for him.” (DP Tr. at 433.) Ms. Kendrick, HCDE’s special-education
supervisor, testified L.H.’s “goals were written on a second[-]grade standard, and “no amount of
scaffolding” would ever have enabled L.H. to “reach[] those second[-]grade goals.” (DP Tr. at
493.)

Even Dr. Kabot, the special-education expert HCDE hired to provide training and

consultation to HCDE staff, advised HCDE that mainstreaming—“[t]he inclusion model with
pull-out and push-in support”—was inappropriate for L.H. because it is “designed to meet the
needs of students who are able to master the general education curriculum.”12 (See DP Ex. 27 at
4–5 (emphasis added).)
iii.

The relevance of L.H.’s failure to meet his IEP goals

This is where things get complicated. The law is clear that a child who is making
progress toward appropriate goals—goals based on the child’s present levels of performance and
aligned with state general-education curriculum standards—is receiving a benefit from being in
the general-education setting; and logically, a child who is making no, or trivial, progress toward
those goals is not. It is also fairly clear from the record that HCDE did not hold to this standard,
but rather adhered to the IEP, stating at times the goal was “meeting,” “reaching,” “keeping up
with,” “performing on the level of,” or “mastering” the general-education curriculum. But it is
also plain that L.H. made very little progress toward his IEP goals during second grade. So,
irrespective of HCDE’s use of an improper standard, does L.H.’s insubstantial progress toward
his IEP goals, adopted at the strong insistence of his parents, necessarily mean he could not
receive a benefit from mainstreaming?

12

To be fair, in her testimony before this Court, Dr. Kabot retreated from that position,
agreeing that the correct standard for a child with an IEP is not necessarily mastery of the
general-education curriculum, but making progress on the child’s individualized IEP goals.
However, Dr. Kabot’s ex post position is largely irrelevant to the question of what HCDE
believed in 2012–2013.
33

It does not. Although there is little dispute L.H. was not making adequate progress
toward the goals contained in his IEP, there is also little dispute those goals were essentially
second-grade general-education goals. (See, e.g., DP Tr. at 243 (testifying L.H. ““was not able
to meet those second[-]grade standards outlined in his IEP”); DP Ex. 6, 2012–2013 IEP Third
Quarter Progress Report 00321–00330 (“[L.H.] has not demonstrated progress in meeting the
objective as written for 2nd[-]grade standards and expectations.” (emphasis added)); id., 2012–
2013 IEP Fourth Quarter Progress Report at 00218–00222, 00224–00226 (same).) The Court
credits the assessment of L.H.’s teachers and HCDE staff that he lacked the prerequisite skills to
achieve general-education-level goals. But to the Court, this establishes only that the goals
contained in L.H.’s 2012–2013 IEP were not appropriately calibrated to his present levels of
performance; it does not establish L.H. could not receive a benefit from a general-education
setting, given appropriate goals. (Cf. DP Ex. 27, Kabot Report at 5 (opining the possible reasons
for L.H.’s lack of progress “are either that the goals/objectives were set too high or that the
service delivery was not designed to teach a student who needed more and/or different support”
(emphasis added)).)
The Court recognizes that, per the terms of the final pretrial order, whether the 2012–
2013 IEP was reasonably calculated to provide a FAPE is not at issue. (See Doc. 148 at 10–11.)
But this does not preclude the Court from determining, based on the record, that the use of
regular second-grade standards in L.H.’s 2012–2013 IEP was not appropriate, when that
determination is relevant to the least-restrictive-environment question of whether L.H. could
receive a benefit from mainstreaming. The Court also recognizes L.H.’s parents’ insistence on
holding him to high standards was a significant, if not the deciding, factor in the IEP team’s
decision to peg the IEP goals to second-grade standards. (See, e.g., DP Tr. at 493.) Although

34

seemingly unfair, this does not absolve HCDE from its obligation under the IDEA to educate
L.H. in the most inclusive environment appropriate.
iv.

Evidence of L.H.’s progress during second grade

Given the Court’s finding that the IEP team’s focus on second-grade general-education
standards—to the exclusion of L.H.’s present levels of performance—in setting the academic
goals in L.H.’s 2012–2013 IEP was inappropriate, the Court does not find his inability to meet
these goals dispositive of the question whether he could make progress toward appropriately
calibrated goals.

Instead, the Court credits the testimony of L.H.’s teachers, who, despite

laboring under an incorrect understanding of the standard he had to meet under the IDEA, both
testified L.H. did make some progress, both academically and behaviorally, during second grade.
Ms. Hope, who, as L.H.’s special-education teacher, was in perhaps the best position to gauge
L.H.’s progress, testified:
He made progress . . . he made progress in word work. He started with his word
work level being at an early kindergarten level [and progressed] to [working]
toward [the] end of kindergarten level. He made some progress behaviorally. He
made progress with skip counting. He made some progress with recognizing a
few basic addition facts, and he made some progress behaviorally. And his
stamina for working longer periods of time did progress.
(DP Tr. 243.) Ms. Higgs likewise noted L.H.’s progress in the area of word work, from a Level
A at the beginning of the year to a Level C by the end of the year. (DP Tr. at 347–48.) Ms.
Higgs also testified she found several strategies that were successful in helping L.H. progress
toward his IEP goals, including the use of manipulatives and visuals.

(DP Tr. at 369.)

Commenting on L.H.’s progress, Dr. Kabot opined his teachers did an excellent job
incorporating a number of different teaching strategies designed to help him progress, and
ultimately, while he did not make a lot of progress, she felt he did make some.
L.H.’s IEP second-semester progress reports, particularly the fourth-quarter report, flesh
out this testimony. Regarding L.H.’s progress working independently and with a minimum of
35

adult prompts, the fourth-quarter report stated “[L.H.] has improved in this area. He struggles on
some days, but has been able to respond to verbal and non-verbal prompts/cues 70% of the time
with no more than 5 prompts,” and L.H. “has been able to complete individually assisted work
until a task is complete 74% of the time.” (DP Ex. 6 at 00213–14.) As for L.H.’s behavioral
objective to “appropriately approach others and . . . maintain appropriate personal space” at least
80% of the time, the report indicates L.H. not only “made progress in this area,” but he actually
completed the objective. (Id. at 00214.)
With regard to L.H.’s first reading goal, “listening attentively . . . for specific information
by sitting for 15 minutes and answering up to 3 questions regarding [the] situation,” the report
noted L.H. was not comprehending on a second-grade level, but that he “listens attentively for 15
minutes” and “sometimes answers basic questions regarding the situation.” (Id. at 00218.) As
for L.H.’s other reading objectives, the report noted L.H. was not able to read on a Level L, the
goal for typical second-graders, but he had made “some progress” toward his remaining
objectives, “demonstrat[ing] a basic understanding” of compound words and “do[ing] well”
understanding synonyms and antonyms—though not to second-grade standards. (Id. at 00218–
19.)
The report reflects a similar pattern of progress in math. Under the objective of skipcounting by 2s, the report noted L.H. was “able to count to 12 by [2s] consistently, which is an
improvement from the beginning of the year, which was counting to 8 consistently,” and was
sometimes “able to count to 20 and 24 by 2’s with manipulatives, songs, charts, scaffolding[,]
and supports.” (Id. at 00223.) As for counting to 100 by 5s and 10s, the report states “[L.H.] has
made progress in these areas, particularly with counting to 100 by 10s!” (Id.) Under the goal of
“solv[ing] simple arithmetic problems using various methods,” the report stated “[L.H.] has been
able to solve simple arithmetic problems with the use of a calculator and manipulatives as well as

36

with supports and scaffolding,” but that he had not yet internalized these skills. (Id. at 00224.)
With regard to L.H.’s objective of understanding the concept of a number line, the report
remarks L.H. “has worked hard with number lines and can place a missing number on the
number line 1–10” with the help of scaffolding, modification, supports, and manipulatives. (Id.
at 00224.) “This is progress for [L.H.],” the report concluded, albeit “not . . . progress in meeting
the objective as written for 2nd[-]grade standards and expectations.” (Id.)
The record is abundantly clear: L.H. could, and did, make behavioral and academic
progress in a regular-education classroom at Normal Park during kindergarten, first grade, and
second grade. He did not receive a benefit commensurate with that of his typically developing
peers; he did not reach the grade-level expectations set for him; but he definitely received some
benefit.13 The Court thus concludes L.H. does not fall within the first category of students
identified by the Roncker court for whom mainstreaming is not appropriate—those who would
not receive a benefit in the regular-education setting. See 700 F.2d at 1063.
v.

The ALJ’s findings regarding L.H.’s progress

HCDE contends the Court must give due deference to the ALJ’s finding that L.H. was
not receiving a meaningful benefit from inclusion at Normal Park despite the support from his
teachers. (Doc. 169 at 42.) It is true that in the context of his least-restrictive-environment
analysis, the ALJ found “[i]t is clear from the previous year that [L.H.] did not make much
progress at Normal Park.” (Technical Record (“T.R.”) 1, Final Order at 11; see also id. at 18
13

HCDE argues there was evidence L.H. lost ground in some areas over the course of
second grade (e.g., DP Tr. at 132 (testimony L.H. forgot the days of the week); DP Tr. at 227
(testimony that L.H. forgot the order of the alphabet)), and this regression cancels out any
minimal progress he may have made. (See Doc. 169 at 42.) First, the Court notes there was also
evidence L.H. had not forgotten these skills. (DP Tr. at 624–625 (testimony by L.H.’s thirdgrade teacher that he knew the order of the alphabet and the days of the week).) Second, even
assuming L.H. had not internalized these skills, overall, the Court does not find L.H.’s
diminished proficiency in these two areas to outweigh the documented progress he made in many
other areas.

37

(“At any rate, given [L.H.]’s lack [of] progress in second grade, it would seem that the Normal
Park environment, even with the extensive aids and accommodations given [L.H.], just did not
work.”).)
On this point, the Court first notes the ALJ did not conclude L.H. made no progress at all
at Normal Park; he found only that L.H. was not making much. This finding, on its face, is not
inconsistent with the Court’s conclusion that L.H. made some progress. Second, the ALJ did not
cite to Roncker, or otherwise identify the correct legal framework for conducting a leastrestrictive-environment analysis in the Sixth Circuit.14 This, by itself, renders application of the
Roncker analysis to his factfinding difficult, if not inappropriate. See Roncker, 700 F.2d at 1062
n.5 (concluding, after finding that the district court erred in its conclusions of law, that remand
for application of the correct legal standard was “preferable to attempting to apply the proper
legal standard to factual findings which were made under an overly deferential standard of
review”). Third, and most importantly, the ALJ did not clarify his understanding of how
progress is measured under the IDEA. In fact, in places, it appears the ALJ improperly gauged
L.H.’s progress against grade-level standards, rather than L.H.’s own abilities. (See id. at 4
(noting L.H. “was not working at a second[-]grade level); id. at 10 (assuming keeping L.H. at
Normal Park would have required instructing him at a third-grade level, which, given L.H.’s
current levels of performance, would be fruitless and counterproductive); id. at 12–13 (assuming
the only alternative to placing L.H. at the CDC was instructing him at a third-grade level, which
would cause him to act out); id. at 18 (holding that mainstreaming L.H. at Normal Park would
require the school district to “pursue futile educational strategies”).) For these reasons, the Court

14

The ALJ’s only reference to case law interpreting the IDEA’s least-restrictiveenvironment provision was a one-sentence reference to a decision by the Fifth Circuit Court of
Appeals in 2012. (See T.R. 1 at 17 (citing J.H. v. Fort Bend Ind. Sch. Dist., 59 IDELR 122).)
38

does not find the ALJ’s conclusion that L.H. failed to make meaningful progress at Normal Park
to be entitled to deference.
To recapitulate the Court’s conclusions under Roncker’s first prong, the Court finds that
children with Down Syndrome typically benefit from inclusion in general-education classrooms;
L.H. did receive such a benefit through first grade at Normal Park; L.H.’s failure to achieve or
even substantially progress toward grade-level-tied IEP goals during second grade does not
preclude a finding that he could make progress when measured against the correct standard; and,
once the strict grade-level-standard lenses have been doffed, there is ample evidence that L.H.
did in fact make appreciable academic and behavioral progress during second grade at Normal
Park as well. Accordingly, the Court finds L.H. could receive a benefit from mainstreaming.
2.

Are the non-portable benefits of mainstreaming far outweighed by the
benefits of a non-mainstreaming setting?

HCDE argues that, given L.H.’s unique needs, placement in a CDC, with an alternative
curriculum, is academically superior to placement in a regular-education classroom. Because
this perception “may reflect no more than a basic disagreement with the mainstreaming concept,”
which, “is not, of course, any basis for not following the Act’s mandate,” the Court must
determine whether the services that purportedly make the CDC superior “could be feasibly
provided in a non-segregated setting.” See Roncker, 700 F.2d 1063.15 Even where those
services could not feasibly be provided in a regular-education classroom, mainstreaming remains
15

The Court would be remiss if it did not acknowledge this inquiry borders on an
educational-policy determination better left to school officials with educational expertise. See
Daniel R.R., 874 F.2d at 1046 (5th Cir. 1989) (declining to adopt the least-restrictiveenvironment analysis in Roncker in part because the inquiry “whether a particular service
feasibly can be provided in a regular or special education setting is an administrative
determination that state and local school officials are far better qualified and situated than are we
to make”). The Court is not aware of any Sixth-Circuit precedent abrogating this step of
Roncker’s analysis, however, and in fact, in Roncker itself, the Court of Appeals expressly
acknowledged the difficulty of the burden the mainstreaming analysis imposes on a district court.
See 700 F.2d at 1063. Accordingly, the Court will proceed with the inquiry.
39

the appropriate placement unless “any marginal benefits received from mainstreaming are far
outweighed by the benefits” of the CDC. See id.
This inquiry can be broken down into three steps. First, the Court must identify the
supposedly superior services of the non-mainstream setting. Second, the Court must determine
whether those services could be provided in a mainstream setting. Finally, if the benefits of the
non-mainstream setting are not portable to the non-segregated setting, the Court must determine
whether those non-portable benefits far outweigh the benefits of mainstreaming. If Plaintiffs
prevail on either of the latter two steps, they will have established L.H. does not fall in Roncker’s
second category of students for whom mainstreaming is inappropriate.
a.

Reasons why HCDE believes the CDC is superior for L.H.

HCDE argues L.H. cannot be educated with his typically developing peers in a regulareducation classroom because the gap between his current levels of performance and the generaleducation curriculum is so great “the nature and extent of the pre-teaching, re-teaching, and
reinforcement that L.H. needs to develop and retain prerequisite skills could not have been
accomplished in the mainstream setting.” (Doc. 169 at 42.) A number of witnesses testified to
this effect. Ms. Hope foresaw that as the demands of the general-education curriculum grew
increasingly harder, L.H. would inevitably be left further and further behind his typically
developing peers academically, “working on his present levels while the rest of the class is just
. . . a satellite around him.” (DP Tr. at 241.) Ms. Hope believed L.H. needed to be able to work
at his own level and at his own pace, and he needed to develop greater independence—to be able
to work without relying on an aide or teacher for prompting and assistance. (See id. at 241, 313,
314–315.)
Other teachers provided similar testimony. In Ms. Higgs’s view, the CDC would allow
L.H. to work at a slower pace and build the prerequisite skills he needed to work at a second-

40

grade level. (DP Tr. at 360–61.) Ms. Higgs did not think L.H. would be able to develop these
skills in a regular-education setting because there simply would not be enough time, given his
learning pace and the level of repetition he needed to internalize skills, for him to be able to learn
the prerequisites and catch up to the skills being taught at grade level. (See id. at 361–362.) Ms.
Manley testified the teachers tried to draft an IEP for third grade that would keep L.H. in a
regular-education classroom, but they just did not believe L.H. would be able to catch up to the
level of his typically developing peers—as she put it, “make more than one year’s gains in one
year.” (DP Tr. at 435–36.) Instead, she testified, L.H. needed to be in a setting where he could
work at his own pace on the prerequisite skills he was lacking so he would be able to move
forward in the curriculum. (DP Tr. at 443.)
Ms. Johns testified before the Court that L.H. needed either a modified curriculum or a
slower pace so he could fill in the gaps in his math skills. Ms. Johns did not think a teacher
could provide the modifications necessary to address these needs in a regular-education
classroom, although she acknowledged she was not a special-education teacher and did not have
much experience with the types of supports that could be provided. Ms. Rosenow likewise
testified L.H.’s needs could not be met in a regular-education setting because there would not be
enough time for L.H. to go back and master the fundamentals of phonics he needed, given the
pace and level of the general-education curriculum. Ms. Rosenow did clarify, however, that
intensive phonics and reading instruction could sometimes be provided by a special-education
teacher via pull-out time. (Id. at 270–72.)
Bolstering the testimony of HCDE teachers was the expert testimony of Dr. Kabot. Dr.
Kabot testified at the due-process hearing she did not believe the proposed 2013–2014 IEP could
be implemented at Normal Park because she did not think L.H. could access the third-grade
general-education curriculum at that time, regardless of the accommodations provided him, and

41

she felt that given his present levels of performance, he needed intensive instruction from a
special-education teacher, not just a little help from an aide in a general-education classroom.
(DP Tr. at 779–81.) Dr. Kabot also concurred in the assessment that L.H. needs to develop
greater independence, and a CDC environment would help in this area.
It appears the consensus is L.H. needs (1) focused instruction, (2) on the prerequisite
skills he currently lacks, (3) at a pace slow enough to enable him to truly internalize the
concepts, as well as (4) an environment conducive to building greater independence. HCDE’s
answer to each of these needs is for L.H. to receive academic instruction pursuant to an
alternative curriculum in a specialized classroom. The alternative academic track proposed by
HCDE would be much more loosely connected to the general-education curriculum and more
focused on developing life-help skills than on academic aptitude.

Under this alternative

curriculum, HCDE reasons, L.H. would not be under constant pressure to keep up with the
general-education curriculum, but would be able to work at his own pace and acquire the basic
academic skills he currently lacks. Because the CDC has a lower student-teacher ratio, HCDE
posits L.H. would also have a greater opportunity for personalized instruction and attention from
specialized instructors. Additionally, given the slower pace and the specialized environment of
the CDC, HCDE believes L.H. would not need a full-time aide, and would thus have the
opportunity to develop greater independence than he would in a regular-education setting.
Having identified the purported benefits of the CDC for L.H., the Court must next
determine whether these services could feasibly be provided in a regular-education setting.
b.

The feasibility of providing the CDC’s supposedly superior
services in the regular-education setting

From the testimony of HCDE’s witnesses, it appears their conclusions regarding whether
L.H.’s needs could be met in the regular-education setting were based in large part on their
understanding that to be mainstreamed, a child had to be able to keep up with the general42

education curriculum. A number of the teachers testified the reason they believed L.H. could not
be educated in a regular-education classroom was because it was not feasible for him to both
learn the prerequisite skills he was lacking and keep pace with the regular curriculum. (See, e.g.,
DP Tr. at 361–362 (opining “there is not time for the daily repetition of these very basic concepts
that he needs, much less the introduction of these new grade-level standards”).) They were
rightly concerned about requiring him to work at a level and pace for which he was unprepared.
But correctly understood, the IDEA does not require L.H. to keep up with the pace of the
regular-education curriculum and of his typically developing peers in order to be mainstreamed.
It must be understood that certain children covered by the IDEA will fall farther and farther
behind their typically developing, same-age peers. As the Court explained above, the standard
for mainstreaming under the IDEA is whether a child is able to make reasonable progress toward
individualized goals, not master grade-level standards. See section IV.B.1.b.i supra. In other
words, with a proper understanding of the standard for mainstreaming under the IDEA, HCDE’s
concerns that mainstreaming would prevent L.H. from working at his own pace and level—two
of the primary reasons put forward in support of a CDC placement—dissipate.
The Court is left with the contentions that L.H. needs focused, intensive instruction, and
he needs to be weaned off his aide so he can develop greater independence. The Court does not
find either of these needs to be so great that they cannot feasibly be met in the regular-education
environment, whether at Normal Park or some other school, with appropriate supports and aids
under the IDEA. As for L.H.’s need for greater independence, part of the reason the CDC was
deemed superior was because L.H. could work at a slower pace, and thus would have less need
for a full-time aide. But if L.H. is not required to work at the pace or level of typically
developing peers, his need for an aide will likely be commensurately diminished. And as for
L.H.’s need for intensive instruction in prerequisite skills, Dr. Whitbread testified at the

43

supplemental evidentiary hearing that this need could be fully addressed in the regular-education
setting through judicious use of accommodations and additional pull-out or push-in time with a
special-education teacher, and some modification of the general-education curriculum.
For example, L.H.’s teachers cited his difficulty remembering the order of the alphabet as
an area in which he needed focused instruction at a level and to an extent not available in a
regular classroom. (See DP Ex. 11 at 5.) They testified he needed one-to-one instruction on this
skill to internalize it and avoid disturbing the learning of other students. (Id.) Dr. Whitbread
explained that in her experience, this situation was not all that uncommon, and could easily be
handled in a general-education environment with the use of an accommodation during the inclass activity requiring knowledge of the order of the alphabet (such as referencing a dictionary),
followed up with one-on-one instruction on alphabetical order during pull-out time.

Dr.

Whitbread testified similar steps could be taken to address the teachers’ concern L.H. had
difficulty with several phonemic concepts: he could be assisted with an accommodation in class,
and then given focused instruction in the area of weakness either via push-in or pull-out
instruction with a special-education teacher. As for L.H.’s deficits in reading and mathematics,
Dr. Whitbread testified teachers frequently provide differentiated instruction to students working
at different levels in these subjects. She opined L.H.’s present levels of performance were not so
deficient he could not be provided differentiated instruction in the regular classroom, although
she acknowledged it would be a challenge, and might require additional training for the teacher.
A frequent refrain from HCDE staff was L.H. needed “overlearning” to master
concepts—he needed to be pre-taught the concept ahead of time, re-taught the concept afterward,
and then have it repeatedly reinforced for a period of time. Dr. Whitbread explained these
techniques are commonly implemented in a typical classroom, and although L.H. would likely
need them to a greater extent than non-disabled peers, nothing in her evaluation of L.H. led her

44

to believe he could not be provided sufficient overlearning in a regular-education setting with the
use of pull-out or push-in instruction for an hour or more a day. Dr. Whitbread also testified
L.H. had only been receiving one hour of pull-out time a day, and if HCDE believed L.H. would
benefit from additional one-on-one instruction, additional daily pull-out time could and should
be provided. (Id. at 134.) In sum, Dr. Whitbread could not conceive of any reason why L.H.
could not receive the instruction he needed in a regular-education setting.
In light of this testimony, and given a correct understanding of what mainstreaming
entails under the IDEA, the Court finds the services HCDE thinks make the CDC a superior
placement for L.H. could feasibly be provided in a regular-education setting.
c.

Weighing the benefits of the CDC against the benefits of a
regular-education setting

In the alternative, even if the Court accepted HCDE’s position that L.H. would have
greater opportunities for focused, personalized instruction and independence-building in the
CDC, the Court does not find these benefits to “far outweigh[]” the substantial benefits L.H.
would realize from mainstreaming. See Roncker, 700 F.2d at 1063. In addition to the testimony
regarding the substantial academic benefits children with Down Syndrome typically receive from
mainstreaming, see section IV.B.1.a supra, it is undisputed a regular-education setting is
particularly beneficial for L.H. in terms of social development. As the ALJ found, L.H. has
relatively advanced social skills and relationships are very important to him, and, thus, placement
in the more isolated CDC would likely be frustrating for him. (See T.R. 1 at 12–13.) Indeed,
both sides’ experts agreed the proposed placement at the CDC was not ideal in terms of
providing opportunities for interaction with typically developing peers. (See DP Tr. at 59–61
(Dr. Meece); 783–85 (Dr. Kabot).)

Moreover, Dr. Whitbread testified adaptive behavior,

particularly pre-vocational and social/emotional skills, are best taught in a regular environment
where the child can benefit from constant modeling by typically developing peers. Thus, even
45

assuming the CDC would provide a marginally better environment for focused instruction and
independence-building, the Court cannot conclude these benefits are so weighty as to displace
the IDEA’s “strong preference in favor of mainstreaming.” See Roncker, 700 F.2d at 1063.
Accordingly, the Court concludes L.H. does not fall within Roncker’s second category of
students for whom mainstreaming is inappropriate.
3.

Was L.H. too disruptive for the general-education classroom?

The final category of students for whom a mainstream placement is inappropriate are
those who, in Roncker’s words, are “a disruptive force in the non-segregated setting.” Id.
HCDE does not argue L.H. falls within this category, and for good reason. Although L.H.
apparently did have some behavior issues at Normal Park, there is no indication his behavior was
so disruptive as to require a separate placement. In fact, demonstrating respect for his peers’
personal space was one of the few goals from the 2012–2013 IEP that L.H. actually met. (See
DP Ex. 6 at 00214.)
Additionally, L.H.’s teachers testified his behavior was much better once they started
modifying his instruction to address his current levels of performance. This testimony was
corroborated by L.H.’s teachers at TMS, who testified that while L.H.’s behavior was not
perfect, he was generally friendly, respectful, and well-behaved. The Court agrees with the ALJ
that the correlation between being allowed to work at his own level and pace and improved
behavior is not coincidental. (See T.R. 1 at 9 n.7.) Because mainstreaming under the IDEA
generally allows for students to work at their current levels of performance while remaining in
the regular-education environment, see section IV.B.1.b.i supra, there is no reason to believe
L.H. will exhibit substantial behavioral issues going forward. The Court finds L.H. would not be
a disruptive force in the general-education environment, and thus does not fall within Roncker’s
final category of students for whom mainstreaming is inappropriate.

46

4.

HCDE’s proposed placement was inappropriate.

As set forth above, the Court concludes L.H. does not fall within any of the categories of
students who cannot be successfully mainstreamed. He is not a student who could not benefit
from being in the regular-education setting; the non-portable benefits of a non-mainstream
setting do not far outweigh the benefits of the regular-education setting; and he is undisputedly
not too disruptive for the regular-education setting. Therefore, under the standard set forth by
the Sixth Circuit Court of Appeals in Roncker, HCDE’s proposal to remove L.H. from a fully
mainstreamed setting and provide him with academic instruction in a separate CDC classroom
was inappropriate.
It is worth setting forth the extent to which the Court agrees with HCDE’s position. The
Court does not find L.H. is not intellectually disabled, or that, at this point, he can master the
general-education curriculum, even given special-education supports and services.

To the

contrary, the Court credits Dr. Kabot’s testimony that L.H. has an intellectual disability in the
mild-to-moderate range. The Court credits the assessment of HCDE’s teachers and experts that
L.H. was and is substantially behind his typically developing peers on his acquisition of a
number of fundamental skills. The Court agrees L.H. could not keep up with the rigor and pace
of the third-grade general-education curriculum, and credits the ALJ’s conclusion that placing
L.H. in regular-education classroom and attempting to teach him material well above his ability
would only lead to frustration for L.H. and his teachers.
By and large, the Court agrees almost entirely with HCDE’s witnesses’ factual
conclusions; the only issues on which the Court does not concur with the opinions of HCDE’s
educators are the proper standard for gauging a child’s eligibility for mainstreaming, and
HCDE’s application of that standard to L.H. HCDE teachers and staff adhered to a standard that
was more exacting than the IDEA requires, and as a result, their conclusion L.H. could not be

47

fully mainstreamed and required a more restrictive placement contravenes the “very strong
congressional preference” in favor of mainstreaming embodied in the IDEA’s least-restrictiveenvironment mandate. See Roncker, 700 F.2d at 1063.
C.

Reimbursement for Plaintiffs’ Private Placement

Having found the 2013–2014 IEP proposed a placement that was more restrictive than
necessary for L.H., the Court must determine whether Plaintiffs are entitled to retroactive
reimbursement for the cost of enrolling L.H. at TMS.

As noted above, reimbursement is

appropriate when the placement proposed by the school district violates the IDEA and the private
placement chosen by the parents “is reasonably calculated to enable the child to receive
educational benefits,” Deal I, 392 F.3d at 855, and is “an education otherwise proper under [the]
IDEA,” Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12–13 (1985). Private placement is
not proper under the IDEA “when it does not, at a minimum, provide some element of special
education services in which the public school placement was deficient.” Berger v. Medina City
Sch. Dist., 348 F.3d 513, 523 (6th Cir. 2003). Because reimbursement is an equitable remedy for
the failure to comply with the IDEA, “a private school placement must be consistent with the
purposes of the IDEA.” Id.
Plaintiffs contend the fact L.H. has passed from grade to grade at TMS and his relatively
high standardized test scores indicate the placement is reasonably calculated to lead to an
educational benefit for L.H. The Court agrees L.H. has made some academic progress at TMS.
Other than certain basic skills, discussed below, he appears to have progressed roughly one grade
level in decoding, reading comprehension, and math.

He also appears to be doing well

behaviorally and socially, and the setting is certainly less restrictive than the CDC placement
proposed by HCDE.

48

This evidence notwithstanding, the Court concludes TMS is not an appropriate placement
for L.H. The Court’s reimbursement analysis does not turn on whether L.H. made progress
while at TMS, but rather on whether the decision to place L.H. at TMS was, at the time, proper
under the IDEA and reasonably calculated to enable L.H. to receive educational benefits. The
Court concludes placement at TMS does not meet these standards for two primary reasons. First,
the weight of evidence indicates L.H. needs systematic, intensive instruction on a number of
“building-block” skills, and the Montessori instructional approach is not designed to provide
such instruction.

Second, the Court finds the Montessori instructional approach is not

sufficiently structured for L.H.’s individualized needs.
L.H.’s need for systematic, intensive instruction on a number of “building-block” skills
was reiterated throughout the record, as well as in testimony before the Court. When asked
about L.H.’s unique educational needs, Ms. Hope testified he needed “frequent repetition of
basic prerequisite skills” and “intense one-on-one instruction.” (DP Tr. at 86.) Ms. Manley
testified L.H. needs instruction focused on “breaking down larger concepts into the smaller
components, [and] filling in the gaps that are missing and the skills that he needs in order to
move forward.” (DP Tr. at 443.) Ms. Kendrick believed L.H. “requires a highly structured
learning environment.” (DP Tr. at 493.) Ms. Levine opined L.H. “needs a lot of prerequisite
skills.” (DP Tr. at 569.)
Dr. Kabot testified at the due-process hearing that L.H. “needs a lot of what I’ll call
systematic instruction,” which Dr. Kabot defined as “breaking skills down into smaller
components,” the careful use of prompting and reinforcements to elicit performance of the skill,
and then data-collection and analysis to gauge the child’s progress and guide further instruction.
(DP Tr. at 746–47.) Dr. Kabot opined L.H. needed “very intentional instruction” in basic
vocabulary and math concepts, along with frequent revisiting of learned concepts to ensure he

49

internalizes these basic skills. (Id. at 749.) Dr. Kabot substantially restated these opinions in her
testimony before this Court, testifying L.H. needs systematic instruction on basic language,
reading, and vocabulary skills, among other things. The Court also heard testimony from Ms.
Rosenow and Ms. Johns at the supplemental hearing. Ms. Rosenow opined that, based on her
evaluation of L.H. and on the results of the Connecticut evaluation, L.H. needed direct
instruction in phonics to strengthen his word-decoding skills. Ms. Johns testified that, according
to her assessment of L.H. in the fall of 2015, he needed instruction in a number of foundational
concepts, such as basic addition, story problems, skip-counting, two-digit numbers, one-to-one
number correspondence, and so on, to enable him to make progress in the area of mathematics.
This testimony regarding L.H.’s need for focused pedagogical attention on foundational
skills is corroborated by the assessments given to L.H. in the summer and fall of 2015. These
assessments show L.H. has yet to develop basic math skills such as one-to-one number
correspondence (see Def.’s Ex. 31 at 2–4); he needs to build a better understanding of certain
basic phonemic and phonics concepts (see Def.’s Ex. 41 at 1–3); and he has some fairly severe
language deficiencies (see Def.’s Ex. 28 at 10–12). These are essentially the same weaknesses
he was noted to have at Normal Park. (See, e.g., T.R. 1 at 5; DP Tr. at 448–49 (lack of one-toone number correspondence); DP Ex. 6 at 00222 (fourth-quarter IEP progress report noting no
progress toward second-grade phonemic awareness goal); Def.’s Ex. 28 at 1 (low language
assessment scores from Normal Park).) This indicates to the Court that L.H. had made very
little, if any, progress in these key areas in the two years he had been at TMS at the time of the
assessments.
Evidence of academic progress—or the lack thereof—is not alone enough to determine
whether a private placement is appropriate for reimbursement. Berger, 348 F.3d at 522 & n.6.
L.H.’s lack of progress toward these building-block skills is therefore not the end of the question.

50

Rather, it points to the underlying problem: the undisputed fact that TMS offers little in the way
of systematic instruction. Dr. Kabot testified that during her observations of L.H. at TMS, direct,
systematic instruction was either absent or poorly implemented, and there was very little
emphasis on data collection or systematic reinforcement. Likewise, although Dr. Whitbread did
not observe L.H. at TMS, she characterized the Montessori instructional approach as being more
of a child-discovery method of learning, and thus stated she would not expect to see a lot of
systematic instruction. Absent a systematic approach to supplying L.H. with the building-block
skills he lacks, the Court does not see how placement at TMS is calculated to provide L.H. with a
meaningful educational benefit.
The second reason TMS does not appear to be an appropriate placement for L.H. is that
the Montessori instructional approach, while likely beneficial for many children, is not
sufficiently structured for L.H. The Montessori Method gives children a great deal of freedom to
structure their own education, but this approach requires a certain level of independence and selfmotivation on the child’s part. Children choose which lessons to work on, and when to work on
them, and go to their teachers for instruction when they need it. This approach seems to be a
poor fit for L.H., who, at the end of second grade, relied heavily on adult prompting and was
unable to work independently for five minutes. (See DP Ex. 6 at 00214–00215.)
In fact, there is substantial evidence L.H. has had a great deal of difficulty marshalling
the level of self-control necessary to succeed in this environment. Dr. Kabot testified at the dueprocess hearing L.H. “needs a lot of teacher-directed instruction” and “more structure.” (DP Tr.
at 747–48.) She opined L.H. seemed to be struggling with Montessori’s flexible, child-led
instructional techniques, and lacked internal motivation to complete non-preferred tasks. (Id. at
747–48, 752–53.) In her report, prepared after observing L.H. at TMS in October 2013, Dr.
Kabot noted L.H. was engaged in task-avoidance activities for more than half of the observation

51

period. (DP Ex. 26 at 6.) After two more days of observation in September of 2015, Dr. Kabot
reported that of the approximately six hours of instructional time she observed, L.H. spent over
two hours transitioning between one activity to the next, and was only able to complete work
when an aide or teacher was working with him. (Def.’s Ex. 28 at 9, 12.) Even Mr. Jamie Watts,
L.H.’s third-grade teacher at TMS, testified at the due-process hearing L.H. was “off-task” about
half of the time. (See DP Tr. at 61; T.R. 1 at 8.) In sum, it appears TMS is not conducive to
providing L.H. with an educational benefit, given his demonstrated lack of independence and
need for a more structured learning environment.
Having found TMS an otherwise inappropriate placement for L.H., the Court next
considers whether TMS’s mainstream environment itself renders placement at TMS proper under
the IDEA. There can be no doubt mainstreaming is beneficial for L.H. In fact, the Court
specifically found L.H. “could receive a benefit from inclusion in the general education
environment”—a finding “supported by ample evidence, including expert testimony regarding
the benefits students with Down syndrome typically realize from mainstreaming and testimony
regarding L.H.’s actual progress during the years he was mainstreamed at Normal Park.” See
Section IV(B)(1), supra. The Court also recognizes children with Down syndrome receive social
and behavioral benefits associated with “modeling” in mainstream classrooms. (See Ex. 45,
Meece Aff. at 25 (“Inclusion with typically developing peers clearly enhances the social and
communication skills of children with Down syndrome.”)) The question the Court must answer
is whether a mainstream educational environment that is otherwise inappropriate for a child with
Down syndrome is proper under the IDEA.
The preference for mainstreaming in the IDEA is clear. See McLaughlin v. Holt Pub.
Sch. Bd. of Educ., 320 F.3d 663, 671–72 (6th Cir. 2003) (describing the IDEA’s least-restrictiveenvironment requirement as a “mandate favoring mainstreaming”); Roncker, 700 F.2d at 1063

52

(“The [IDEA] does not require mainstreaming in every case but its requirement that
mainstreaming be provided to the maximum extent appropriate indicates a very strong
congressional preference.”).

The value of mainstreaming, however, must be viewed as

secondary to the primary goals of the IDEA in terms of facilitating the best possible education
for children with disabilities. See Berger, 348 F.3d at 523. For this reason, parents are not
“entitled to reimbursement just because the private placement is less restrictive than the public
school placement.” See id. at 522.
In Berger, the Sixth Circuit denied reimbursement for a hearing-impaired student’s
placement at a private school which did not provide valuable special-education services such as
tutoring or speech and language therapy. The parents argued the placement was appropriate
because the private school was quiet and had smaller class sizes. Id. Despite these advantages,
the Sixth Circuit found the placement was not “proper under the IDEA” because the private
school lacked special-education services necessary for the student’s development.
Extending this rationale to L.H.’s placement at TMS, an educational environment that is
otherwise inappropriate for L.H. cannot be considered “proper under the IDEA” merely because
it is a mainstream environment. Given the mismatch between the Montessori approach and
L.H.’s need for focused, systematic instruction in language and other basic skills, combined with
the difficulty he has working independently in low-structure environments, the Court does not
find placement at TMS to be proper under the IDEA. Accordingly, the Court holds Plaintiffs are
not entitled to reimbursement for the costs of placing L.H. at TMS.

53

V.

CONCLUSION
For the foregoing reasons, the Court concludes Plaintiffs have established by a

preponderance of the evidence that the placement proposed in L.H.’s 2013–2014 was not L.H.’s
least-restrictive environment. Because the private placement chosen by L.H.’s parents lacks
several critical qualities necessary for L.H. to receive an educational benefit, however, the Court
concludes Plaintiffs are not entitled to reimbursement for the costs associated with the
placement.
An appropriate Order shall enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

54