2nd Circuit adopts Oberti test for determination of LRE(least restrictive environment

P. v. Newington(2nd Circuit, decided October 9, 2008): The 2nd Circuit today adopted a case- and fact-specific test for determining whether a student has been placed in the least restrictive environment, considering whether, with the aid of appropriate supplemental aids and services, full-time education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.

in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has mader easonable efforts to accommodate the child in a regular classroom; (2) thee ducational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in aspecial education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.

If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test – whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.