Has your school district ever told you that summer extended services for kids with special needs must be provided at their set summer extended school year (ESY) programs? Have they ever told you that such services must be provided in a program with only other students with special needs? Have they told you that the Least Restrictive Environment (LRE) rules do not apply to summer ESY special education programs?
According to the 2d Circuit Court of Appeals — all of those statements are wrong! Instead, a District must consider LRE requirements when providing summer services. If your child receives instruction with general education students during the school year, the District likely has no right to restrict her to a segregated program over the summer.
“We hold that the IDEA’s LRE requirement applies to ESY placements just as it does to school-year placements. … [the School District] was required to consider a continuum of alternative ESY placements and to offer [the student] the least restrictive placement from that continuum appropriate for his needs. The district court therefore erred in determining that [the School District] met its obligations under the IDEA by offering [the student] only an ESY placement in a self-contained special education classroom.” http://scholar.google.com/scholar_case?case=17386340325814739564&q=T.M.+v.+Cornwall+&hl=en&as_sdt=6,31
Federal law provides children who have IEPs with a right to be educated in the “least restrictive environment” – which means to be educated with general education students to the maximum extent appropriate. Because each child is unique, an LRE decision has to be made on a child by child basis.
In the case linked above, the school argued that ESY was exempt from the LRE requirements because summer services were different in kind from services during the regular school year. But the Court rejected that claim because ESY is an integral component of a child’s education if that child is eligible for ESY. The school also argued that LRE applies only if the District has an alternative summer program available that includes general education students. But the Court held that if the District does not have a program that includes general education students, it must either create one or provide the special education students who can be educated in a mainstream setting with summer services outside of the District.
It is current standard practice in New Jersey and Pennsylvania for District’s to create a set summer program of only children with special needs, and all students who need special education over the summer must obtain those services within that segregated program. Under the legal analysis of the 2d Circuit, this is illegal. If that analysis is successful here, parents who are offered only a segregated summer program may be able to obtain appropriate mainstream services on their own, and be reimbursed by their school districts. Or they could bring an action against their school district to force them to offer an appropriate less restrictive summer program.
Parents should carefully consider the summer placement programming – and insist where appropriate on a more mainstream setting.