Q. Can you give us a little background about the L.H. case?
A. Sure. L.H. is a young man (now 15) with Down syndrome. But his case begins in elementary school. He successfully attended a public elementary school for four years: kindergarten, first grade, a repeat of first grade and then second grade. He was included, or “mainstreamed,” for all those years. Every year, he met his IEP goals and his progress reports were always strong.
But when L.H. approached third grade, the school system announced that it would be moving him to a separate school where he would be placed in a classroom of children with various disabilities. These types of classrooms have different names (often sounding caring and nurturing); in this system, the segregated classroom was called “Comprehensive Development Class.” He would not receive homework or grades and the curriculum was not tied to any state standards.
Q. If he was successful in the regular classroom for four years, why did the school system demand he be removed?
A. The school system believed L.H., due to Down syndrome, could not tackle a third-grade level curriculum. It advised his parents that, due to Down syndrome, he had “hit a wall” at the second-grade level. The principal thought he could not keep up any more and he would be left behind in the regular education classroom if he remained for third grade.
Q. Do you see that a lot — the belief that a child with Down syndrome cannot “keep up”?
A. Yes. The “hit a wall” notion does surface frequently. Sometimes it is referred to as “hitting a plateau.” The Down Syndrome Association of West Michigan advises educators about this myth in its manual, “Supporting the Student with Down Syndrome in Your Classroom.” Available at https://dsawm.org/wp-content/uploads/2014/05/2014-Educator-Manual.pdf.
Q. So, how did you deal with that “hit a wall” problem legally?
A. Two ways. First, we hired outstanding experts in Down syndrome who could dispel the notion of the “wall” or “plateau.” This included Dr. Sue Buckley, the founder of Down Syndrome Education International in Great Britain, along with Dr. Kathleen Whitbread, a United States expert in the education of children with Down syndrome. Second, we attacked the premise that a child with Down syndrome must “keep up” or “learn on par” with non-disabled students to remain included. We proved, of course, that students with Down syndrome learn differently, have individualized IEP goals and must not be held to a mastery standard of their non-disabled peers merely to be mainstreamed. Obviously, any child with an IEP may remain in school until age 22, underscoring that additional time for learning is quite appropriate.
Q. Prior to the trial, did the parents have an opportunity to see the segregated classroom, the so-called “Comprehensive Development Class”?
A. Yes. A neat feature of this case is that L.H.’s Cub Scout den leader and baseball coach happened to be a professor of education at the local college. He volunteered to visit and review the segregated classroom. While there, he created a chart showing almost zero interaction with non-disabled peers, even in hallways and in the lunchroom.
Q. So, when a court is trying to analyze the least restrictive environment for a child with a disability, what is the test or legal analysis? How does it know?
A. Under the Individuals with Disabilities Education Act (IDEA), there is a strong Congressional preference for the child to remain in the regular education classroom. That immersive experience involves more rigor and more learning normally occurs in regular education classrooms. Therefore, the IDEA has very strong language for this to occur:
“To the maximum extent appropriate, children with disabilities . . . [must be] educated with children who are not disabled,” and separated “only when the nature or severity of the disability . . . is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A).)
But despite this strong language, inclusion is not an absolute for every case. Where a school system believes inclusion is not possible, courts will examine factors such as whether the student cannot benefit from regular education; whether the segregated class “far outweighs” regular education; or whether the child is too disruptive for regular education.
Q. How did the court rule when using these factors for L.H.?
A. L.H. won. He clearly did benefit from regular education. He had a strong track record of success. There was nothing helpful about the segregated classroom. Certainly, it did not “far outweigh” the regular education classroom., and L.H. was a well-behaved young man, better than most kids his age.
Q. But despite all that, you said the school system would not allow him to stay in the regular education classroom for third grade. What did the parents do?
A. In this case, the parents had the means to privately place L.H. in a private Montessori school. They hired their own paraprofessional to attend the Montessori school with him. So, L.H. remained in the private school from third to seventh grade while the legal process went forward.
Q. Not all parents can do that.
A. You are exactly right. Most cannot. So, the law has a provision called “Stay Put.” It means exactly that — if the school wants to remove a child with a disability from regular education, and the parents disagree by filing a due process complaint, the child gets to “Stay Put Where He Is” until court rulings are obtained.
Q. Why did L.H.’s parents not use Stay Put?
A. They felt the school system was not willing to provide the help in regular education for L.H. to succeed. For example, simple supports like pre-teaching (reviewing the lesson before hand), and reviewing the lesson with him afterwards. The school system had advised the parents that these simple supports would not be given to L.H. unless he changed to the segregated classroom. Given that situation, they felt a private placement was best.
Q. Now, initially, the parents actually lost their claim for the private school reimbursement, right?
A. That is right. At the trial court level, the United States District Court found that the private school placement was not appropriate because the Montessori Method was too unstructured. But that finding was reversed by the Sixth Circuit Court of Appeals. The Sixth Circuit did a good job of explaining how Montessori is actually quite structured, just different than the typical public school method, and it did provide a strong education to L.H.
Q. So, on appeal, what did L.H. win?
A. First, he obtained important legal rights—the right to return to the public school in an integrated environment and not be subjected to a “mastery” standard. Second, his parents obtained reimbursement for the private school and costs of services.
Q. How does this case affect other cases in other states?
A. Well, Tennessee is within the Sixth Circuit Court of Appeals, along with Kentucky, Michigan and Ohio. So this case sets a precedent for including a child with Down syndrome in those states. It warns educators against a mastery standard while reinforcing the importance of inclusion. For states outside the Sixth Circuit, the decision is not mandatory, but it is certainly persuasive authority and will undoubtedly have great influence elsewhere.
Q. I assume L.H.’s parents were pleased with the outcome?
A. Yes, they are exceptionally pleased with the outcome. Fighting for five years, however, was exhausting. And at times, I would remind them that the fight is not for L.H. alone, but for the many kids across the country who will follow in his footsteps. Knowing you are helping others beyond yourself was gratifying to them, I think.
Q. For lawyers who may be interested in the L.H. case, or in this field, is there anything else the L.H. case teaches?
A. I think so.
First, L.H. is the first major mainstreaming, or least restrictive environment, case to come down the pipe after the Supreme Court’s decision in Endrew F. v. Douglas Ct. Sch. Dist., 137 S.Ct. 988 (2017). In Endrew, the Supreme Court guaranteed children with disabilities an education that is “appropriate” based on “the unique circumstances of the child for whom [the IEP] was created.” L.H. finds that the regular education environment was appropriate under Endrew F. because L.H. was quite capable and that segregation would not have adequately addressed his unique circumstances.
Second, we often hear school systems argue that the teachers are the best judge of the child’s abilities and progress, leaving little to no room for disagreement from parents or parents’ experts. The Sixth Circuit disagreed.
“If the law were that a court must defer to the opinions of those who spend the most time with the student and presumably know him best, then there would be no place for experts. Moreover, parents could never prevail because the student’s teachers will always spend more time with the student or know the student better than the parents’ hired experts. On the other hand, the parents spend more time with the student and know the student better than any teacher. Taking HCDE’s argument to this ultimate end, the district court would actually defer to the student’s parents, who surely know the student the best, regardless of any expertise.” (L.H. v. Hamilton Cty. Dep’t of Educ., 2018 U.S. App. LEXIS 23070, at *27 (6th Cir. Aug. 20, 2018).)
Q. Thank you for spending this time with us, and congratulations on the victory.
A. Absolutely, it’s my pleasure.