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Court: “Least Restrictive Environment” Also Applies to Summer Programs

Second Circuit, in T.M. v. Cornwall, Applies Congress’ “Least Restrictive Environment” Mandate to Extended School Year for Students Who are approved for 12 Month Programs and Who Benefit From LRE
April 08, 2014

(April 8, 2014) - 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, the Second Circuit rendered its decision in T.M. v. Cornwall CS., 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.

T.M. was represented by Mayerson & Associates, the law firm founded by Autism Speaks Board Member Gary Mayerson. The Second Circuit delivered its decision on World Autism Awareness day, the very day that Gary Mayerson was speaking at the United Nations on the subject of inclusive education.

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 Mayerson and Associates, 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 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”

According to Mayerson, the Second Circuit’s ruling in T.M. v. Cornwall 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.  Mayerson said, “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.”

This story is part "Our Board in Action," a series of articles that highlight the work of members of the Autism Speaks Board of Directors as advocates and philanthropists. Learn more here.