L. H. v. Hamilton Cty. Dep't of Educ. ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0176p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
L.H., a minor student; G.H.; D.H., ┐
Plaintiffs-Appellees/Cross-Appellants, │
│
> Nos. 17-5989/18-5086
v. │
│
│
HAMILTON COUNTY DEPARTMENT OF EDUCATION, │
Defendant-Appellant/Cross-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 1:14-cv-00126—Curtis L. Collier, Chief District Judge.
Argued: July 26, 2018
Decided and Filed: August 20, 2018
Before: GUY, BATCHELDER, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: D. Scott Bennett, LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC,
Chattanooga, Tennessee, for Appellant/Cross-Appellee. Justin S. Gilbert, GILBERT
MCWHERTER SCOTT & BOBBITT, PLC, Chattanooga, Tennessee, for Appellees/Cross-
Appellants. ON BRIEF: D. Scott Bennett, Mary C. DeCamp, LEITNER, WILLIAMS,
DOOLEY & NAPOLITAN, PLLC, Chattanooga, Tennessee, for Appellant/Cross-Appellee.
Justin S. Gilbert, GILBERT MCWHERTER SCOTT & BOBBITT, PLC, Chattanooga,
Tennessee, for Appellees/Cross-Appellants. Roy H. Henley, THRUN LAW FIRM, P.C., East
Lansing, Michigan, Francisco M. Negrón, Jr., NATIONAL SCHOOL BOARDS
ASSOCIATION, Alexandria, Virginia, Judith A. Gran, REISMAN CAROLLA GRAN LLP,
Haddonfield, New Jersey, for Amici Curiae.
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 2
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. When a school district decided to move a
disabled child from a “mainstreamed” classroom with non-disabled children to a segregated
classroom solely for children with disabilities, the child’s parents opposed that decision, removed
the child to a private school, and sought relief under the Individuals with Disabilities Education
Act (IDEA), 20 U.S.C. §§ 1400 et seq. After years of dispute and litigation, the district court
held that the school district’s placement of the child in the segregated classroom was more
restrictive than necessary and therefore violated the IDEA, but that the parents’ alternative
private placement did not satisfy the IDEA either, so they were not due reimbursement. L.H. v.
Hamilton Cty. Dep’t of Educ. (L.H. #1), No. 1:14-CV-00126, 2016 WL 6581235, at *1 (E.D.
Tenn. Nov. 4, 2016).1 We AFFIRM the district court’s decision that the school district’s
placement violated the IDEA, but we REVERSE its decision that the parents’ alternative private
placement did not satisfy the IDEA, so we REMAND for a determination of the appropriate
amount of reimbursement and issuance of a judgment consistent with this opinion.
I.
L.H. is a 15-year-old boy with Down Syndrome. He is by all accounts a personable and
kind boy and an enthusiastic learner. In fact, if there is one constant in this record, it is that
every witness for either party has been complimentary of and affectionate toward L.H.
From 2009 to 2013, L.H. attended Normal Park Elementary School, a public school
operating under the Hamilton County (Tenn.) Department of Education (HCDE). 2 To
1The parents had also sought restitution for the private school placement via the Americans with
Disabilities Act, 42 U.S.C. § 12132, and Rehabilitation Act, 29 U.S.C. § 794(a), and the district court held that they
had proven those claims, though it appears to have awarded no relief. Because the parents sought only monetary
restitution, and because we hold herein that they are entitled to reimbursement under the IDEA, we find that these
other claims are now redundant and we therefore pretermit these ADA and RA claims in this appeal.
2L.H. attended Normal Park beginning at age six in the 2009 schoolyear, for four years: kindergarten, first
grade, a repeat of first grade, and second grade. In the 2013 schoolyear, HCDE decided to move L.H. for third
grade, prompting this dispute. L.H.’s parents instead moved him to private school, where he completed the next five
years: third, fourth, fifth, sixth, and seventh grades. Presumably, he will enter the eighth grade this fall.
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 3
accommodate L.H.’s intellectual disability, a group (the “IEP team”), comprising his parents and
several teachers and staff, prepared an annual “individualized education program” (IEP), which
is a requisite planning document with goals and objectives based on L.H.’s past and expected
performance. Through second grade, the annual IEPs followed the regular Tennessee school
curriculum in a regular-education classroom with non-disabled children of the same age or grade
(hereinafter “grade-level peers”), though with added special-education supports and services for
L.H., such as daily “pull-out time” (one-on-one instruction with a special-education teacher
outside the regular classroom), “push-in time” (a special-education teacher in the regular
classroom), occupational therapy, speech-language therapy, and a full-time aide.
L.H.’s parents are fully invested in his education and participated in formulating his IEPs.
Because they have expectations for L.H. and want him to reach his full potential, they pushed
their preferences for his education and regularly sent information regarding Down Syndrome to
assist in his educational development. Outside the classroom, they read with L.H., reviewed his
homework daily, and did extracurricular activities with him. Moreover, it was their strong and
clearly stated desire that L.H. be “mainstreamed,” i.e., educated in the standard public-school
setting, integrated with non-disabled grade-level peers, and taught the standard curriculum.
During his first three years at Normal Park (kindergarten and two first grades), L.H. made
progress academically but did not keep pace with his grade-level peers. By May 2012, he had
learned basic math concepts but overall was at a kindergarten level. His independent writing
ability was also at or below a kindergarten level. But he was reading at a mid-to-late first-grade
level, nearly on par with his grade-level peers, though his comprehension was behind.
When the IEP team met to develop L.H.’s second-grade IEP in May 2012, some HCDE
staff suggested moving L.H. to a Comprehensive Development Classroom (CDC), an isolated
class comprising solely special-education students and located at a different school. L.H.’s
parents opposed that suggestion and insisted that L.H. remain in the regular-education classroom.
So L.H. remained at Normal Park with the aid of special-education supports and services.
The 2012-2013 (second grade) IEP’s educational goals followed regular second-grade
curricular goals, which were a significant step up from the goals contained in L.H.’s 2011-2012
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 4
(repeated 1st grade) IEP, both in number and in difficulty. The HCDE teachers and staff later
claimed they thought the goals were unrealistic, but all members of the IEP team—including
L.H.’s parents and eight HCDE teachers and staff—agreed to the goals and objectives then.
When second grade started and L.H. struggled to meet the goals, his classroom teacher,
Stefanie Higgs, and his special-education teacher, Lisa Hope, claimed that he lacked the
prerequisite skills. Because both Higgs and Hope were relatively inexperienced, Hope consulted
Jeanne Manley—an experienced special-education teacher designated by HCDE for teacher
training and support—several times regarding teaching strategies to try with L.H. Despite these
efforts, L.H. did not progress as fast or as far as they hoped. These teachers also reported that
L.H.’s behavior was becoming disruptive (claiming he would invade his classmates’ personal
space, disobey teachers’ directions, and “shut down” or refuse to work).
Surmising that the behavioral issues were due to L.H.’s frustration with the difficulty of
the work, Hope modified his lessons to a kindergarten level (with the exception of reading,
which remained at a first-grade level). Higgs and Hope also attempted to minimize distractions
by isolating L.H. toward the back of the room, away from tables with containers of distracting
work materials and the traffic of the other students. According to Hope, L.H.’s behavior
improved noticeably after these changes, particularly the reduction of his work level.
L.H.’s behavior improved but progress toward the second-grade goals in his IEP did not,
and Higgs and Hope doubted that he would meet the IEP goals by year end. When they relayed
this in L.H.’s second-quarter IEP progress report, L.H.’s parents requested a meeting. At the
meeting, HCDE staff stated that L.H. was working far below grade-level expectations. Jill
Levine, the Normal Park Principal, told L.H.’s parents that although L.H. had benefitted from the
regular-education setting in kindergarten and first grade, he had “hit a wall” and was no longer
progressing, and she again suggested the CDC special-education classroom. L.H.’s parents
opposed this, specifically objecting to the lack of interaction with non-disabled grade-level peers,
the absence of a normal academic curriculum or standards, and separating L.H. from his friends.
During four IEP planning meetings over the next few months, HCDE staff insisted on the
CDC placement. L.H.’s parents resisted. They contested HCDE’s assessment of L.H.’s
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 5
performance, questioned the teachers’ qualifications, and relied on evidence of the benefits of
mainstreaming and the downsides of segregation in the CDC. HCDE, in turn, emphasized L.H.’s
poor performance, alleged disruptiveness, and the necessity of the CDC placement.
In May 2013, over his parents’ objections, the HCDE finalized L.H.’s 2013-2014 (third
grade) IEP. HCDE asserted that L.H. needed more support than it could provide at Normal Park
and unilaterally ordered L.H. transferred to the CDC at Red Bank Elementary, a segregated
classroom for children with disabilities, with an alternative curriculum, at a different location.
According to L.H.’s parents, this new IEP resulted in a 40% reduction in L.H.’s academic
instruction time, from five hours per day to three hours per day. According to HCDE, however,
L.H. would spend 3.5 hours per day (90 minutes of reading, 90 minutes of math, and 30 minutes
of pre-vocational instruction) in the segregated classroom with the other special-education
students, and spend the rest of the day with non-disabled peers at lunch, music, art, physical
education, and 30 minutes of social/emotional special education push-in instruction. But, even
by HCDE’s account, some of the proposed instruction appeared questionable. For example,
HCDE’s director of Special Education, Margaret Abernathy, testified that L.H. would receive
instruction in math and handwriting through his physical education (gym) class and, though
conceding that the physical education teacher is not a state accredited math teacher, she insisted
that the physical education standards require higher order thinking skills such as math.
The new curriculum was different qualitatively as well as quantitatively. This new IEP
did not tie L.H.’s academic goals to third-grade regular-education standards in any way. Instead,
the Red Bank CDC uses an online special-education software program called the Unique
Learning System (ULS) to teach reading and math in the framework of monthly science and
social studies units, which can be supplemented as necessary by more focused reading and math
lessons. The ULS program follows Common CORE standards but it is not peer-reviewed, as the
IDEA requires, nor is it tied to Tennessee’s general-education standards. It does not provide
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 6
standard report cards or track educational progress under state standards. Particularly distressing
to L.H.’s parents is that this curriculum does not provide for any homework.3
Physically, the Red Bank CDC was small and self-contained, with two teachers and nine
students. Despite the attempted integration during lunch and arts classes, experts from both sides
agreed that there would be little interaction between disabled and non-disabled students. While
in music class or at lunch, CDC students sit and interact almost exclusively with each other.
Also, while nearly all of the CDC students 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. Thus L.H.
would have been particularly isolated in the CDC, but likely unable to comprehend why.
L.H.’s parents rejected the May 2013 IEP and, instead, enrolled L.H. at The Montessori
School of Chattanooga (TMS) for the 2013-2014 schoolyear, where he has remained during
resolution of this case. TMS is a private school, operating in the Montessori Method, with a
curriculum aligned with Common CORE standards and covering language and math, as well as a
variety of other subjects, such as botany, zoology, cooking, and history. Classrooms are multi-
grade, and students proceed through the curriculum at their own pace. The teacher prepares an
individualized lesson plan for each student, and the student picks the order in which to work on
the lessons. When the student completes the plan, the teacher prepares a new plan based on the
student’s progress. L.H.’s classes had 17 or 18 students, a classroom teacher, and a full-time
aide to help L.H. with his work and keep him on task. L.H.’s parents paid for the aide, though
TMS actually employed her. L.H. got along well with his classmates, none of whom were
disabled, and though he had some issues with personal space and behavior when he was
overexcited, he was universally considered to be friendly, respectful, and well-behaved. It also
bears mention that L.H.’s parents are pleased with L.H.’s progress—academic, social, and
behavioral—during his five years at TMS, covering third through seventh grades.
3The parents’ expert, Dr. Whitbread, testified that she had never seen a special-education program that did
not assign homework. She explained that homework is a connection between home and school for the parents and
the student, and that the absence of homework reflects to all involved that this is not a typical school experience.
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 7
According to TMS’s testing and progress reports, L.H. made steady progress. HCDE
disputed this, however, accusing TMS of misrepresenting the results and arguing that L.H. did
not actually progress at TMS. L.H.’s parents and experts contend that much of this is rooted in
prejudice on the part of public school employees against the Montessori Method, and it is hard to
ignore the partisan motive of HCDE’s teachers and staff, who are effectively parties in this case;
TMS’s teachers and staff have no such motive. But the district court found HCDE’s witnesses
more credible and sided with HCDE’s assessment that, although the TMS teachers and the
parents’ experts assessed him as having achieved a much higher level, as of L.H.’s third or fourth
grade year at TMS, his math skills were at a first-grade level, his ability to decode words was a
third-grade level, and his reading comprehension an early-second-grade level.
Meanwhile, L.H.’s parents had filed an IDEA administrative complaint to challenge the
IEP. In that proceeding, an ALJ ruled for HCDE, finding that Normal Park was not appropriate
for L.H and, therefore, HCDE properly removed him to the Red Bank CDC. L.H.’s parents
appealed to the district court, which heard additional evidence and rendered an independent
decision, holding that placement at Red Bank CDC was more restrictive than necessary and
therefore improper, but that L.H.’s parents’ alternative private placement at TMS did not satisfy
the IDEA, so they were not entitled to reimbursement. L.H. #1, 2016 WL 6581235, at *1.
Both parties appealed.
II.
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.,
requires states that receive federal funds for education to provide every disabled child who wants
it a “free and appropriate public education” (FAPE). 20 U.S.C. § 1412(a)(1)(A); Endrew F. v.
Douglas Cty. Sch. Dist., 580 U.S. --, 137 S. Ct. 988, 993 (2017). A FAPE has two requirements
that are relevant here: the school must prepare an “individualized education program” (IEP) for
the disabled student, § 1414(d)(1)(A); and that IEP must provide the FAPE so as to educate the
disabled student in the “least restrictive environment” (LRE) possible, § 1412(a)(1), (5).
The IEP is “the centerpiece of the [IDEA]’s education delivery system for disabled
children.” Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP must state the student’s educational
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 8
status, the annual goals for the student’s education, the special-educational services and aides to
be provided to meet those goals, and the extent the student will be “mainstreamed,” i.e., spend
time in school environments with non-disabled students. § 1414(d)(1)(A). A team of people
work cooperatively to formulate the IEP. This “IEP team” comprises the student’s parents or
guardian, a school district representative, the student’s regular and special education teachers, a
person able to interpret the student’s results and evaluations, and, when appropriate, the student.
§ 1414(d)(1)(B). The IEP must (1) comply with the procedures set forth in the IDEA and (2) be
“reasonably calculated to enable the [student] to receive educational benefits.” Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). “[T]he process of
providing special education and related services to handicapped children is not guaranteed to
produce any particular outcome,” id., and, therefore, the IEP’s substantive “educational benefits”
are best measured under the paradigm of “appropriate progress” based “on the unique
circumstances of the child for whom it was created,” Endrew F., 137 S. Ct. at 1000-01.
The LRE is a non-academic restriction or control on the IEP—separate and different
from the measure of substantive educational benefits—that facilitates the IDEA’s strong
“preference for ‘mainstreaming’ handicapped children,” Rowley, 458 U.S. at 181 n.4. “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.” § 1412(a)(5)(A). This preference is not absolute, however, and a
school may separate a disabled student from the regular class under circumstances when: (1) the
student would not benefit from regular education; (2) any regular-class benefits would be far
outweighed by the benefits of special education; or (3) the student would be a disruptive force in
the regular class. Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).
In practice, the IEP and LRE generate two different types of decisions. Formulating the
IEP’s substantive educational benefits most often concerns methodology, such as deciding
between alternative programs or methods for educating a disabled student—these types of
decisions require the school district’s educational expertise. McLaughlin v. Holt Public Schools
Bd. of Educ., 320 F.3d 663, 673 (6th Cir. 2003). Establishing the LRE, however, concerns
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 9
whether, or the extent to which, a disabled student can be mainstreamed rather than segregated
and does not require any such educational expertise. Roncker, 700 F.2d at 1062. Simply put,
“[i]n some cases, a placement which may be considered better for academic reasons may not be
appropriate because of the failure to provide for mainstreaming.” Id. at 1063. Mainstreaming
can be, and often is, a contentious issue between the school and the disabled student’s parents.
To ensure that the student’s parents or guardian are informed of the decisions affecting
their child and given an opportunity to participate in or object to those decisions, the IDEA
provides a series of procedural safeguards. § 1415. If ordinary avenues of communication are
insufficient, aggrieved parents can begin a formal grievance process by submitting a “complaint”
to the school “with respect to any matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a [FAPE] to such child.” § 1415(b)(6). This triggers
a formal meeting among the parents, school officials, and the IEP team. § (f)(1)(B)(i)
The complaint may be categorized as alleging procedural or substantive violations.
§ 1415(f)(3)(E). Procedural violations generally concern “the preparation of an IEP,” Rowley,
458 U.S. at 206, such as the evaluation, placement, and IEP-formation procedures outlined in
§ 1414. Substantive violations concern the substance of the IEP; namely, whether the school has
provided “an educational program reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 1001.
If the meeting fails to resolve the complaint, the parties may enter voluntary mediation,
§ 1415(e)(2)(A)(i), with an impartial mediator, § (e)(2)(E), at the school’s expense, § (e)(2)(D).
If mediation fails, or if the parties choose not to mediate, the aggrieved parents may file a “due
process complaint” and have a due-process hearing. § (b)(7)(A), (f). A state administrative law
judge (“State ALJ”), acting under the school district’s authority, conducts that hearing and
renders a decision. Under some circumstances, a party may appeal to a state educational agency
for review or another hearing. § (g)(1). That is the last option in the state grievance procedure.
Once the State ALJ issues a decision, however, the IDEA’s grievance procedure is
exhausted and the parties may sue in federal court. § 1415(i)(2)(A); Fry v. Napoleon Cmty. Schs.,
580 U.S. --, 137 S. Ct. 743, 753 (2017). The party challenging the IEP, typically the parents or
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 10
guardian, has the burden of proving by a preponderance of the evidence that the IEP devised by
the school is inappropriate. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2005).
The district court applies a “modified de novo” standard of review, Burilovich v. Bd. of
Educ. of Lincoln Consol. Schs., 208 F.3d 560, 565 (6th Cir. 2000), meaning that it must make an
independent decision based on the preponderance of the evidence while also giving “due weight”
to the determinations made by the State ALJ, Rowley, 458 U.S. at 206. Towards this objective,
the court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional
evidence at the request of a party; and (iii) basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is appropriate.” § 1415(i)(2)(B). The
court may not “simply adopt the state administrative findings without an independent re-
examination of the evidence,” Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir.
1998), but neither may it “substitute [its] own notions of sound educational policy for those of
the school authorities which [it] review[s],” Rowley, 458 U.S. at 206. As with the deference to
school officials on matters of substantive educational methodology, the weight due to the State
ALJ’s findings depends on whether the finding is based on educational expertise. McLaughlin,
320 F.3d at 669. “Less weight is due . . . on matters for which educational expertise is not
relevant because a federal court is just as well suited to evaluate the situation[;] [m]ore weight
. . . is due to . . . determinations on matters for which educational expertise is relevant.” Id.
The district court reviews for both procedural and substantive violations. The court must
first determine whether the school complied with the IDEA’s procedural requirements. Rowley,
458 U.S. at 206. This is an inquiry into “the process by which the IEP is produced, rather than
[into] the myriad of technical terms that must be included in the written document,” Doe v.
Defendant I, 898 F.2d 1186, 1190 (6th Cir. 1990), or into mere technical violations, which do not
provide a basis for invalidating an IEP, Dong v. Bd. of Educ. of Rochester Cmty. Sch., 197 F.3d
793, 800 (6th Cir. 1999). An important aspect in assessing procedural compliance is whether
there was adequate parental involvement and participation in formulating an IEP. See Renner v.
Bd. of Educ. of Pub. Sch. of City of Ann Arbor, 185 F.3d 635, 642 (6th Cir. 1999); see also Deal
v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 858 (6th Cir. 2004) (“Participation must be more
than a mere form; it must be meaningful.”). If the procedural requirements are satisfied, the
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 11
court grants greater deference to the State ALJ’s determinations on the second step, the
substantive analysis. Dong, 197 F.3d at 800. In the second step, the court must decide whether
the IEP’s substantive educational plan was “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 999
(endorsing and narrowing Rowley, 458 U.S. at 206-07); accord Deal, 392 F.3d at 862.
While pursuing a challenge to an IEP, the parents may unilaterally remove the student
from the public school, “place the child in a private school[,] and seek reimbursement for the
cost of the private school,” Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Mass.,
471 U.S. 359, 369-70 (1985), though they “do so at their own financial risk,” id. at 373-74. To
award reimbursement, the State ALJ or district court must find both that: (1) the public school
violated the IDEA and (2) the private school is appropriate under the IDEA. Florence Cnty. Sch.
Dist. Four v. Carter, 510 U.S. 7, 15 (1993). This means that, even though the IDEA’s
requirements do not apply to private schools, id. at 13-14, for reimbursement purposes, the
private school must satisfy the substantive IEP requirement, i.e., it must be “reasonably
calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Endrew F., 137 S. Ct. at 999. But the private school need not meet the full public school
standards. 34 C.F.R. § 300.148 (“A parental placement may be found to be appropriate by a
hearing officer or a court even if it does not meet the State standards that apply to education
provided by [state and local education agencies].”) (codifying Florence Cnty.); see also C.B. v.
Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) (“To qualify for
reimbursement under the IDEA, parents need not show that a private placement furnishes every
special service necessary to maximize their child’s potential. They need only demonstrate that
the placement provides educational instruction specially designed to meet the unique needs of a
handicapped child, supported by such services as are necessary to permit the child to benefit
from instruction.”) (quoting with approval Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir.
2006)). However, we have also held that a unilateral private placement does not satisfy the
IDEA unless it, “at a minimum, provide[s] some element of special education services in which
the public school placement was deficient”; for example, specific special-education programs,
speech or language therapy courses, or pre-tutoring services. Berger v. Medina City Sch. Dist.,
348 F.3d 513, 523 (6th Cir. 2003). Importantly, parents are not “entitled to reimbursement for
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 12
private school just because the private placement is less restrictive than the public school
placement.” Id. at 522.
In an appeal from the district court’s decision, we review the district court’s findings of
fact for clear error and its legal conclusions de novo. Deal, 392 F.3d at 850.
III.
HCDE claims that the district court erred by holding that its placement of L.H. at the Red
Bank CDC was not the least restrictive environment (LRE). HCDE presses six arguments here.
Because this leaves much of the district court’s analysis of this issue unchallenged, we pause to
endorse that analysis, see L.H. #1, 2016 WL 6581235, at *9-23, as thorough, compelling, and
correct. We address only the six specific arguments that HCDE has raised in this appeal.
A.
HCDE argues that the district court used the wrong standard in assessing whether the Red
Bank CDC satisfied the LRE requirement, claiming that the district court’s version of the
Roncker standard, of “some” benefit, was overruled by Deal and Endrew F., which, HDCE
claims, impose a standard of “meaningful educational benefit.”4 That is incorrect. Deal and
Endrew F.5 set a standard for assessing an IEP’s substantive educational plan. Roncker provides
a test for a different question: whether an IEP can overcome the LRE requirement and compel
segregation of the student despite the IDEA’s strong preference for mainstreaming. One way to
do so—i.e., one exception to the LRE requirement—is, according to Roncker, 700 F.2d at 1063,
to prove that the mainstreamed placement would provide the student no benefit at all. The
district court framed this in the obverse, showing that the mainstreamed placement would have
“some” benefit. That is, because mainstreaming at Normal Park provided L.H. with “some”
educational benefit, the Roncker “no benefit” exception did not apply and the IEP’s segregated
4HCDE also claims that “[t]he need for academic and functional advancement necessarily drives a
student’s LRE.” HCDE provides no legal citation for this assertion but instead appears to rely on its interpretation
of Endrew F., which, if followed to its ultimate conclusion, would remove the LRE requirement entirely. That is not
the law, nor is it reasonably inferred from Endrew F., though it is clearly HCDE’s desire.
5The Endrew F. language has been quoted several times herein. It is therefore noteworthy that it does not
use Deal’s phrase of “meaningful educational benefit,” though its language is functionally the same.
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 13
placement at Red Bank CDC could not overcome the LRE requirement on that basis. Whether
Normal Park would or could provide a “meaningful educational benefit” in its own right (and
thus satisfy the substantive requirement for the IEP) is a different question, but not a standalone
question given that “a placement which m[ight] be considered better for academic reasons
m[ight] not be appropriate because of the failure to provide for mainstreaming.” Id. As for
HCDE’s contention that the district court must not have found that Normal Park could have
provided L.H. with a meaningful educational benefit because the opinion did not use that exact
phrase, that contention is unsupportable.6 Although it is true that the district court’s opinion did
not state expressly that Normal Park could provide L.H. with a meaningful educational benefit,
the totality of the court’s findings clearly compel that conclusion.
B.
HCDE next argues that the district court erred by concluding that the State ALJ—who
had to decide the larger challenge to the IEP’s substantive component, not merely the LRE
question raised to the district court on appeal—used the wrong standard for measuring whether
L.H. was receiving a meaningful benefit (i.e., could remain mainstreamed) at Normal Park,
which led the court to improperly reject the State ALJ’s findings. As the court made clear, the
State ALJ most certainly did use the wrong standard. At the “due process hearing,” HCDE—
with support from its expert, Dr. Kabot—argued to the State ALJ that L.H. had to exhibit a
“mastery” of the regular education grade-level curriculum. The State ALJ accepted that
standard, found that L.H. could not meet it, and ruled for HCDE. But the district court rejected
that standard, holding: “What the IDEA implies, the case law makes explicit: a child need not
master the general-education curriculum for mainstreaming to remain a viable option. Rather,
the appropriate yardstick is whether the child, with appropriate supplemental aids and services,
can make progress toward the [] IEP[’s] goals in the regular education setting.” L.H. #1, 2016
WL 6581235, at *14–15 (citing multiple cases) (citations, quotation marks, editorial marks, and
footnote omitted). With the proviso that Endrew F. modifies this only slightly if at all, see
Endrew F., 137 S. Ct. at 1000-01 (measuring for “appropriate progress” based “on the unique
6In an odd incongruity, HCDE asserts in its reply brief that “L.H. was receiving a FAPE at Normal Park,”
which is to say that he was receiving a meaningful educational benefit at Normal Park.
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 14
circumstances of the child for whom it was created”), the district court’s holding is correct. The
court then recited the testimony of HCDE’s teachers, staff, and expert (Dr. Kabot), each having
used the improper “mastery” standard, and concluded with a note that: “To be fair, in her
testimony before this [c]ourt, 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.” Id. at *15
n.12. Because the district court was correct that the State ALJ (and HCDE) had used the wrong
standard, the court was also correct in rejecting the State ALJ’s findings under that standard.
C.
HCDE next argues that because the HCDE teachers’ testimony at the “due process
hearing” was directed at the challenge to the IEP’s substantive component, not merely at the
LRE question, the district court took that testimony out of context to conclude that they assessed
L.H. under the wrong standard. Specifically, HCDE contends that “[L.H.’s] parents’ demands
for grade level standards necessitated that the educators address those demands in their
testimony” and “none of HCDE’s educators testified that such a standard existed.” This claim is
disingenuous. It is true that L.H.’s parents demanded that his goals be tied to the general-
education curriculum, perhaps even unreasonably so, as the district court commented. L.H. #1,
2016 WL 6581235, at *16. It is also true that L.H. failed to meet those goals. Id. But “this
establishes only that the goals . . . were not appropriately calibrated.” Id. Whether L.H. was
meeting his IEP goals (or even capable of meeting them) is a separate question from whether he
was “making appropriate progress” or “receiving a meaningful benefit,” and the HCDE teachers
could have testified to the latter without the former. But that is not what happened. Numerous
teachers testified that L.H. was not benefitting from his placement at Normal Park because he
could not master the grade-level curriculum—that standard was improper, as Dr. Kabot even
conceded. The district court did not misinterpret the testimony.7
7The district court addressed this claim directly in denying HCDE’s motion for reconsideration:
Put simply, the [c]ourt understood the context underlying the testimony of L.H.’s teachers and
each party’s expert witness. The [c]ourt was aware that at various times L.H.’s parents asked that
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 15
D.
HCDE also argues that the district court gave too much weight to L.H.’s parents’ experts,
and accuses those experts of being unprepared, uninformed, incompetent, or overly general
without the necessary focus on L.H. individually. Importantly, HCDE is not arguing that L.H.’s
experts were unqualified, which could be framed as a legal challenge; HCDE is arguing that their
testimony was unpersuasive due to the foregoing accusations, which is a challenge to the court’s
weighing of the evidence and determination of the facts. We review that challenge for clear
error, Deal, 392 F.3d at 850, and HCDE comes nowhere close to showing any clear error.
The crux of this argument is that the district court should have deferred to the opinions of
HCDE’s teachers and staff because they had spent far more time with L.H. and were more
familiar with his academic record and individual idiosyncrasies, so they knew best how he
should be educated. 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.
The district court recounted testimony from all of the witnesses, both lay (e.g., HCDE
teachers) and expert (from both sides). Although the court considered information about Down
Syndrome generally, it then said “this does little to advance [the parents’] case unless [the
parents] can show the proposition holds true for L.H.” L.H. #1, 2016 WL 6581235, at *13.
From there, the court considered L.H. individually. Id. at 13-18. There is no merit to HCDE’s
challenge to the district court’s weighing of the testimony here.
his educational goals be tied to grade-level expectations. Despite what L.H.’s parents may have
requested, [HCDE] was required to educate L.H. in the least restrictive environment. The fact that
some of [HCDE]’s witness’s statements were made in response to L.H.’s parents’ requests did not
cause the [c]ourt to misunderstand the testimony or interpret it out of context.
L.H. #2, 2017 WL 4553421, at *1 (E.D. Tenn. June 2, 2017) (citation and footnote omitted).
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 16
E.
HCDE argues that L.H.’s parents convinced the district court that “mainstreaming” is
about physical location, whereas it is really about academic methodology. Not only is this
contention wrong in many ways, it is a bit bizarre. HCDE’s theory is that, because special-
education students are so different from their classmates socially and intellectually, they are
necessarily “isolated” from them even though they are physically in the same room. Thus,
special-education students can never truly be “mainstreamed.” Specifically, HCDE contends
that L.H. was not mainstreamed at Normal Park, asserting that L.H.’s second grade teachers at
Normal Park placed him “at his own table in the back of the classroom” and treated him so
differently from the general student population that he “was essentially in a classroom of one
even though he was physically located in the gen-ed classroom.” HCDE then refers to a video of
L.H. at TMS to claim that, even at TMS, “L.H. [was] functionally isolated from typically
developing peers despite sitting in their midst.” This is common, HCDE says, because “the
academic gap between students with disabilities and typical peers can be so extreme that it is
isolating and stigmatizing.”
This is really an argument against “mainstreaming” as a concept, because HCDE believes
it is impossible, impractical, or counterproductive. As defined in the statute, § 1412(a)(5)(A),
“mainstreaming” means placing a disabled student “with children who are not disabled,” such as
in a general education classroom, whereas “not mainstreaming” would mean placing a disabled
student in “special classes, separate schooling, or [conducting] other removal of children from
the regular education environment,” such as the Red Bank CDC. This directly contradicts
HCDE’s premise that mainstreaming is somehow a function of the child’s disability rather than
his placement by the school. This might be merely the view of HCDE’s appellate attorneys, but
if it is truly HCDE’s view, then it is worrisome and inadvertently supports L.H.’s parents’
experts’ opinions that HCDE teachers and staff reject mainstreaming because they do not
understand it, do not believe in it, and need extensive training on why it is valuable and how to
do it. These actions at Normal Park do not demonstrate a failure of mainstreaming as a concept,
but a failure of L.H.’s teachers and the other HCDE staff to properly engage in the process of
mainstreaming L.H. rather than isolating and removing him when the situation became
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 17
challenging. Finally, these accusations about L.H.’s isolation at TMS, while typical of HCDE’s
exaggerated and questionable criticism of TMS, are directly refuted by TMS teachers and staff as
well as L.H.’s parents, who have been pleased with L.H.’s performance and progress at TMS.
F.
Finally, HCDE argues that because this is actually a case about academic methodologies,
the governing standard is one of deference to the school teachers and staff per McLaughlin, 320
F.3d at 673. First, HCDE repeats its claim that because L.H.’s Normal Park teachers had
isolated him functionally, even though he was in a regular classroom, “L.H. had never truly been
in the LRE and that [by advocating for a regular classroom, such as he was in at Normal Park,]
his parents were not advocating for the LRE.” Next, HCDE contends that L.H.’s parents were
only concerned with the physical location of L.H.’s placement (Normal Park Elementary rather
than Red Bank Elementary), asserting that “neither [L.H.’s] parents nor the district court have
taken issue with any aspect of the 2013-14 IEP apart from the location where L.H. would have
been served.” Therefore, HCDE claims, because neither Normal Park nor Red Bank was
actually mainstreaming L.H., the only complaint was “geographic location,” so the court
“repeated the same error that confused the trial court in McLaughlin,” namely the failure to defer
“to the educators’ choice of methodologies.”
As discussed above, this first premise is that L.H. should not be mainstreamed because
the teachers and staff at Normal Park were unwilling or unable to properly engage in the process
of mainstreaming L.H., as they deemed it futile or useless in light of his disability. This is the
type of approach that the IDEA was designed to remedy, not encourage or protect. The second
premise—that the only complaint about Red Bank CDC was “geographic location”—is another
claim by HCDE that is at best disingenuous. L.H.’s parents’ primary complaint about Red Bank
CDC was its intentional segregation (non-mainstreaming), which HCDE attempts to morph into
a mere difference in physical location. But, to be clear, L.H.’s parents opposed the CDC, not its
location. They also complained that Red Bank CDC’s curriculum was not “mainstream” in that
it was not a regular curriculum, it set very low educational expectations (far too low for L.H.’s
individual capabilities), it was not peer reviewed or tied to state standards, it provided no report
cards or homework, and it had certain teachers in uncertified roles.
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 18
In McLaughlin, 320 F.3d at 670 n.2, the parents opposed a move to a CDC at a different
school, but only because they “wanted their daughter to attend [the neighborhood school,]
Dimondale Elementary, and no other school,” and conceded that “if a [CDC] had been available
at Dimondale, [they] would not have objected to the appropriateness of a [CDC] placement.”
Unlike this case, in which L.H.’s parents want more interaction with non-disabled peers, want a
peer reviewed and regular state certified curriculum, and want a more typical educational
experience with homework and report cards, “the parties [in McLaughlin] did not disagree about
the extent to which [the student] would be mainstreamed with non-disabled peers . . . [and] the
disputed issue did not involve determination of the least restrictive environment,” id. at 672.
L.H.’s case is about which of two very different approaches provides the disabled student with
the least restrictive environment; it is not merely about two different physical locations.
All in all, none of HCDE’s arguments is persuasive. The district court was correct in
finding that the proposed Red Bank CDC IEP did not provide the LRE, and therefore failed L.H.
IV.
In their cross-appeal, L.H.’s parents claim that the district court erred by finding that
L.H.’s placement at TMS did not satisfy the IDEA. More importantly, due to that finding, the
court concluded that the IDEA did not grant L.H.’s parents reimbursement for that placement.
As discussed, L.H.’s parents rejected the HCDE’s segregated, disabled-students-only
CDC at Red Bank, so they removed him from the HCDE public school system. According to
their expert, Dr. Kathleen Whitbread, at that point they had two choices: homeschooling, which
is obviously counterproductive to the idea of mainstreaming, or private schooling at TMS, at
$7,500 annual tuition plus $9,000 to $17,128 per year for L.H.’s personal paraprofessional aide.
L.H. has been at TMS for the past five schoolyears (third through seventh grades).
Parents who unilaterally move a child to a private school in response to an unacceptable
IEP get reimbursement pursuant to the IDEA only upon a finding that both (1) the public school
violated the IDEA and (2) the private school is appropriate under the IDEA. Florence Cnty.,
510 U.S. at 15. The private school need not meet full public school IDEA standards, see 34
C.F.R. § 300.148; C.B., 635 F.3d at 1159, but it must be “reasonably calculated to enable a child
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 19
to make progress appropriate in light of the child’s circumstances,” Endrew F., 137 S. Ct. at 999.
We have also held that parents are not “entitled to reimbursement for private school just because
the private placement is less restrictive than the public school placement.” Berger, 348 F.3d at
522. “[A]t a minimum,” the private school must “provide some element of special education
services in which the public school placement was deficient”; for example, specific special-
education programs, speech or language therapy courses, or tutoring services. Id. at 523.
Here, the district court found that the public school placement at Red Bank CDC violated
the IDEA, but denied the parents reimbursement for the move to private school at TMS because
it found TMS inappropriate under the IDEA. Despite finding that “L.H. has made some
academic progress at TMS[,] . . . appears to be doing well behaviorally and socially, and the
setting is certainly less restrictive than the CDC placement proposed by HCDE,” the court
rejected TMS because “the Montessori instructional approach is not sufficiently structured for
L.H.’s individualized needs.” L.H. #1, 2016 WL 6581235, at *23-24. Specifically, the court
held that “L.H. needs systematic, intensive instruction on a number of ‘building-block’ skills
[that] the Montessori instructional approach is not designed to provide.” Id.
The court supported this conclusion with testimony from six HCDE teachers, staff, or
experts: (1) Lisa Hope, L.H.’s special-education teacher at Normal Park; (2) Jeanne Manley, the
HCDE special-education trainer of other teachers; (3) Willeata Kendrick, HCDE’s special-
education supervisor; (4) Dr. Susan Kabot, HCDE’s contracted consultant and autism expert;
(5) Debbie Rosenow, HCDE’s reading coach; and (6) Jamelie Johns, HCDE’s math coach. Each
of these interested witnesses opined that TMS was inappropriate because the Montessori
approach does not have a “systematic structure,” see id. at *25 (citing as “undisputed fact that
TMS offers little in the way of systematic instruction”), and L.H. needed a systematic, structured
learning environment, in order to work on basic building-block skills, through frequent
repetition, intense one-on-one instruction, and repeated prompting and reinforcement.
Whether or not the Montessori approach is as “structured” in its own way as the public
school approach (i.e., the Red Bank CDC) is in its way, the record is clear that L.H. had a
personalized curriculum at TMS and a paraprofessional aide dedicated just to him, such that he
was working at his own pace with frequent repetition, intense one-on-one instruction, and
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 20
repeated prompting and reinforcement. The district court relied on HCDE’s claims that the
Montessori approach fails to provide this ambiguous “systematic structure”; those claims appear
both overblown and unreliable. In fact, the parents’ expert, Dr. Whitbread,8 testified that the
Montessori approach is “a curriculum that is well-suited for children with Down syndrome in
many respects,” and good for L.H. in particular. The court appears to have rejected TMS, at
least in part (though a critical reading reveals it to be much more than merely in part) because the
court rejects the Montessori approach in general. Under such a view, no Montessori school is
qualified to teach a student with Down Syndrome. That cannot be.9
Regarding an individual evaluation of L.H. during his schooling at TMS, the district court
recognized that he was mainstreamed all the time at TMS and was benefiting from it, but
emphasized that the benefits of mainstreaming alone are not sufficient. L.H. #1, 2016 WL
6581235, at *26 (“[A]n educational environment that is otherwise inappropriate for L.H. cannot
be considered ‘proper under the IDEA’ merely because it is a mainstream environment.”) (citing
Berger, 348 F.3d at 522). The district court explained that the private school in Berger could not
satisfy the IDEA “because [it] lacked special-education services necessary for the student’s
development.” Id. The court “[e]xtend[ed] this rationale to L.H.’s placement at TMS,” id., to
conclude that “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,” meant that TMS was not proper. Id.
8Dr. Whitbread has 35 years of experience with Down Syndrome children, as a teacher, researcher, author,
and consultant, and testified that she knows of no one in the United States with such a focus on Down Syndrome.
Consider, for purposes of comparison, Dr. Kabot, HCDE’s proffered expert who is under contract with HCDE to
provide training and consultation services to the special education department. Dr. Kabot testified that Down
Syndrome and autism are significantly different conditions and that her expertise is in autism but not Down
Syndrome; she had not done research, published papers, or given presentations about children with Down
Syndrome. Moreover, she did not review any published research before consulting and advising HCDE about
placement for L.H.
9Amici Curiae Council of Parent Attorneys and Advocates cite two articles as support for the applicability
and benefits of Montessori schooling for children with Down Syndrome: Jacqueline Cossentino, Following All the
Children: Early Intervention and Montessori (2016) (available at https://www.public-montessori.org/wpcontent/
uploads/2016/10/Following-All-the- Children-Early-Intervention-and- Montessori.pdf (last visited July 17, 2018)),
and Barbara Schramm, Case Studies of Two Downs Syndrome Children Functioning in a Montessori Environment
(1974), (available at https://files.eric.ed.gov/fulltext/ED111120.pdf (last visited July 17, 2018)).
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 21
While the facts of this case might not conclusively distinguish it from Berger, neither is
this case factually identical to Berger. Whereas in Berger the private school was merely “less
restrictive” than the public school, Berger, 348 F.3d at 522, this case presents a situation
contrasting all and none: TMS is fully and intentionally mainstreamed whereas Red Bank CDC
is fully and intentionally segregated. Also, TMS satisfies the requirement that the private school
must “provide some element of special education services in which the public school placement
was deficient” id. at 523. TMS provides mainstreaming, but it does not offer only the benefits of
mainstreaming. Unlike Red Bank CDC, TMS provides a curriculum tied to the regular state
standards. At TMS, L.H. produces a daily journal, has nightly homework, and receives report
cards, all of which facilitate his parents’ involvement, and convey to L.H. that this is a regular
school experience. Red Bank CDC has no homework or report cards. As to L.H.’s need for
focused, systematic instruction with individual motivation and feedback, TMS provides him with
an involved, qualified teacher and an individual aide. Finally, the district court relied on its
credibility assessments and HCDE’s contrary views of L.H.’s progress at TMS to discount
TMS’s evidence that L.H. had made appropriate academic progress. But the court did not
discuss L.H.’s parents’ views about L.H.’s progress at TMS or their overall satisfaction with it.
HCDE further argues that we must also or alternatively deny reimbursement to L.H.’s
parents because they could have invoked the IDEA’s “stay put” provision, § 1415(j), and kept
L.H. at Normal Park where, according to HCDE, he was receiving a FAPE. 10 According to
HCDE, L.H.’s parents did not believe that Normal Park “had suddenly become an inappropriate
placement,” but rather “were simply indignant that the teachers had suggested a part-time CDC
placement” at Red Bank CDC. Maybe it is true that L.H.’s parents were indignant at that
“suggestion,” which was obviously more than a suggestion, but they also had reason to be
concerned that those teachers—who had backed up that “suggestion” by insisting that they could
not and would not provide the necessary support services to L.H. at Normal Park—were
unwilling to teach L.H. under any circumstances. Moreover, as already discussed, these Normal
10But HCDE cannot have it both ways. If Normal Park was actually meeting all of L.H.’s needs and
providing a FAPE, as HCDE here contends, there was no reason to remove L.H. to Red Bank CDC. HCDE’s
removal of L.H. to Red Bank CDC, over his parents’ objections, was the entire reason for this suit.
Nos. 17-5989/18-5086 L.H., et al. v. Hamilton Cty. Dep’t of Educ. Page 22
Park teachers were openly unwilling or unable to properly engage in the process of
mainstreaming L.H., rather than isolating and removing him when it became challenging.
We conclude that the educational program at TMS satisfied the IDEA and, therefore,
L.H.’s parents were entitled to reimbursement. The district court erred in holding otherwise.
Because the appropriate amount of reimbursement is not evident from this record, however, we
must remand for the district court to admit such additional evidence as it deems necessary and
render judgment in the amount of reimbursement that it finds appropriate under the IDEA.
V.
For the foregoing reasons, we AFFIRM the district court’s decision that the school
district’s segregated placement violated the IDEA, but REVERSE its decision that the parents’
alternative private placement did not satisfy the IDEA and REMAND for a determination of the
appropriate amount of reimbursement and issuance of a judgment consistent with this opinion.