Important Federal Appeals Court Ruling on Summer Services

Introduction by Jennifer Laviano

The IDEA provides for Extended School Year (ESY) services for many students with disabilities.  The IDEA further requires that these summer services be individualized, and based on the unique needs of the student.  Despite these requirements, the usual approach we hear at IEP meetings when ESY is offered is a statement along the following lines:  "our ESY program starts on July 5 and goes through July 27th.  All of our students go from 9:30-11:30, four days a week.  We offer 1 and ½ hours of speech and ½ an hour of OT per week for our ESY students on Tuesdays and Thursdays."  

Sounds really individualized, doesn't it?

In addition to the usual "cookie cutter" approach to summer services, many parents also struggle with a difficult choice:  their child requires summer services, but also benefits from interaction with non-disabled peers.  In such as situation, doesn't the IDEA's Least Restrictive Environment (LRE) provision apply?  One would think so, but districts haven't operated that way for years.  In order to receive ESY services, such parents are forced to accept "self-contained" summer programs with no opportunities to have their child practice social skills with "typical" peers, or to receive nothing at all.  For these kids, neither option (self-contained program for the summer, or nothing) is an appropriate option.

Because legal disputes over only summer programs are not common (let's face it, most families have much larger disputes than just the ESY program), we don't have a lot of case law on this subject.  It was for this, and many other reasons, that we were thrilled to learn just last week of a victory for parents and children.  The Second Circuit Court of Appeals ruled that summer programs must consider a district's LRE obligations, just like the regular school year program does, for students who benefit from inclusion.

I am honored to consider New York Attorneys Gary Mayerson and Tracey Walsh, who successfully represented the family in this case, colleagues and friends.  We here at YSER are grateful for their advocacy on behalf of all families, and thrilled that they were kind enough to provide this guest post here on our blog, breaking down the case.  Take a look at the summary, and never forget:  one family CAN make a difference!

Impact of T.M. v. Cornwall 

by Gary Mayerson, Esq.

Gary Mayerson speaks at the United Nations on WAAD on the subject of inclusive education

Gary Mayerson speaks at the United Nations on WAAD
on the subject of inclusive education

The IDEA statute expressly provides that students with disabilities are to be educated and included with their non-disabled peers to the "maximum extent appropriate." This requirement is sometimes referred to as the "least restrictive environment" (LRE) mandate of the Act, and it is one of only two "maximizing" provisions in the entire statute.

On April 2, 2014, which ironically was World Autism Awareness Day, and even more ironically, was the very day that Gary Mayerson spoke at the United Nations on the subject of inclusive education, the Second Circuit rendered its decision in one of our cases, T.M. v. Cornwall CSD. In so doing, the Second Circuit defined the scope of Congress' inclusion (LRE) mandate as it is to be applied to the ESY (extended school year) portion of a student's educational program.

Factually, the student T.M., while diagnosed with autism, was succeeding with support in a mainstream preschool setting. In the development of the student's 2010-2011 school year IEP, the school district offered T.M. opportunities to continue being educated with non-disabled peers for the "regular" part of the school year; that is, September-June. However, for the Summer of 2010, the district offered T.M. placement only in its self-contained, special education classroom and offered T.M. his related services only as part of that self-contained classroom experience.

T.M.'s parents rejected Cornwall's IEP recommendation on the basis that its offered program was too restrictive. Represented by our firm, T.M.'s parents filed for a hearing. After an 8 day trial, the hearing officer (Hon. Mindy Wolman) ruled for T.M. and his parents. The hearing officer held that Cornwall's IEP was substantively defective because it was unduly restrictive.

The SRO reversed the IHO, finding that Cornwall's recommended program was not too restrictive for T.M. The federal district court then affirmed the SRO on this point. T.M.'s parents then took a further appeal to the Second Circuit Court of Appeals, the court that decides appeals taken by residents of New York, Connecticut and Vermont.   The appeal was heard before a panel that included Chief Judge Katzmann.

The Second Circuit concluded that LRE does not take a summer vacation.  The court held that " ... the least restrictive environment (LRE) requirement of [IDEA] applies to extended school year (ESY) placements as it does to regular school year placements. We therefore conclude that the district court erred in determining that Cornwall met the LRE requirement when it offered T.M. only an ESY placement in a self-contained, special education class."  The Court went on to further explain its ruling:

  • "Once Cornwall's [CSE] determined that T.M. needed a twelve month educational program, including an ESY placement, in order to prevent substantial regression, it was required to consider a continuum of alternative ESY placements and to offer T.M. the least restrictive placement from that continuum appropriate for his needs."
  • "Both of the ESY placements that Cornwall offered ... were self-contained, special education classrooms with no nondisabled students"
  • "[Cornwall's IEP] violated the LRE requirement because it placed T.M. in a more restrictive educational setting for his ESY program than his disability required
  • "We therefore also reject Cornwall's contention that the LRE requirement is necessarily limited ... by what programs the school district already offers"
  • "In order to comply with the LRE requirement ... a school district must consider an appropriate continuum of alternative placements ... "
  • " ... the LRE requirement applies in the same way to ESY placements as it does to school year placements"

The Second Circuit's ruling in T.M. v. Cornwall undoubtedly will go on to help thousands of children with autism and other disabilities who have been approved for a 12 month program, and who could benefit from an inclusive experience. As the Second Circuit has now made absolutely clear, the LRE mandate applies to ESY (Summer) programming just as it does during the "regular" portion of the school year.

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