8th Circuit holds that private placement need not satisfy a least-restrictive environment requirement

CB v. Special School District No. 1 (8th Circuit 2011): IHO awarded reimbursement to parents for the costs of a private placement. The district court reversed the IHO finding that although the public school had not provided the student with a FAPE, the private school was not appropriate because the student body was comprised mostly of students with disabilities. The 8th Circuit reinstated the IHO’s ruling.

We conclude that the mainstreaming preference of the IDEA does not make Groves an inappropriate private placement under the circumstances. The statute calls for educating children with disabilities together with children who are not disabled "[t]o the maximum extent appropriate." Id. (emphasis added). Here, the School District failed to develop an IEP that made available a free appropriate public education. At that point, C.B.'s parents had a "right of unilateral withdrawal," Florence Cnty., 510 U.S. at 13, and a right to reimbursement for private tuition, so long as the placement was "proper under the Act," Burlington, 471 U.S. at 369, and the award "furthers the purposes of the Act." Forest Grove, 129 S. Ct. at 2493 n.9.

The overriding purpose of the Act is to provide an education for disabled children that is both free and appropriate. The Act was designed, as the hearing officer noted, "to open the door of public education to handicapped children on appropriate terms." Rowley, 458 U.S. at 192. But once the School District failed to fashion an IEP that made available a free appropriate public education, it did not frustrate the purposes of the Act for C.B.'s parents to enroll him at Groves, where he could receive the educational benefit that was lacking in the public schools.

The parents were not required to allow the District another opportunity to try yet again with a different IEP that featured the CLASS program when the District did not propose that alternative in any of the IEPs that preceded C.B.'s withdrawal. Reimbursement for the costs of enrollment in a private school is authorized if the hearing officer finds that the District "had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." 20 U.S.C. § 1412(a)(10)(C)(ii)(emphasis added). A less restrictive environment is the ideal, but C.B.'s move to Groves after years of frustration in the public schools is a far cry from "the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes" that concerned Congress. See Burlington, 471 U.S. at 373. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be "proper" under the Act. See Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83-84 (3d Cir. 1999); Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 (6th Cir. 1998).

Aside from the concern that Groves educates primarily children with disabilities, there is no doubt that it was a proper placement for C.B. As the hearing officer summarized:

Groves offers the Student teaching methods and programs that the School District has not provided. In addition to these methods and programs, the ability to group and re-group students throughout the day to ensure reading skills are reinforced across subjects sets Grove[s] apart. Moreover, the District's own teachers thought that Groves is an appropriate place for the Student. His mother has seen an "explosion" of learning since the Student entered Groves.
We conclude that the placement at Groves was proper under the Act, and that reimbursement for tuition paid by C.B.'s parents to Groves for the 2008-2009 academic year is not precluded by the statute's preference for education in the least restrictive environment.