5th Circuit on LRE.

In October, 2016, the ARDC called for a change of placement for a 3rd grade boy who was having some issues.  The student had autism, ADHD and a speech impairment.  He started first grade in the Learning to Learn classroom which was more restrictive than the mainstream.  He did very well in that setting. So well that the ARDC moved him to the Social Communication program for second grade. This meant most of the time would be in the mainstream classroom, a less restrictive setting than the Learning to Learn classroom.   

Second grade was also a success, and so the plan was to keep the boy in that setting for third grade. 

That’s when the problems began:

At the beginning of the school year, A.B.’s behavior took a turn for the worse.  He increasingly avoided doing his work in favor of various unproductive and sometimes disruptive activities, which ranged from going to the bathroom frequently and playing with the window blinds to flopping on the floor and screaming.  On occasions when he was disruptive, A.B. would be temporarily removed from the general-education classroom.

So the school proposed a move back to Learning to Learn, a more restrictive setting.  Parents objected and sought a due process hearing. This automatically invoked “stay put” which kept the student in the Social Communication program for the rest of the year.  Even though the parties were in litigation, the student had a good year:

During that time, with the assistance of plans put in place by the school district to address some of his struggles, A.B.’s behavior improved substantially.  By spring, he had ceased engaging in most of the misbehavior that had cropped up at the beginning of the school year.  He also continued to progress academically.

Given those fact findings, it’s not surprising that the hearing officer, the federal district court and now the 5th Circuit all ruled in favor of the family on this one.  After all, if a student is doing well in a less restrictive setting, there is no reason to go to the more restrictive setting. The 5th Circuit decision does not break any new legal ground, but simply affirms the basic LRE analysis that has been in place since we got Daniel R.R. v. SBOE thirty years ago.

The case is A.B. v. Clear Creek ISD, decided by the 5th Circuit on October 10, 2019. We found it at 119 LRP 39471. 


Tomorrow: the annual PDK poll.