morality or altruism.12 Some courts consider the restrictiveness of the unilateral private placement
in determining whether to award tuition reimbursement, while other courts do not.13
The “mainstreaming”14 requirement of the IDEA secures an important right. However,
there are different concerns and interests depending on whether authorities are excluding a child
from public education or where a parent, dissatisfied with the public education offered to their
disabled child, has exercised his or her right to opt out of the public system. Those cases
articulating tests to determine whether a school district has properly offered a continuum of
placements and attempted inclusion are important, and the LRE should be a heavily-weighed
factor in cases where parents assert a claim to have their child educated in a public school.15
When, however, a parent seeks reimbursement for private school tuition, public school authorities
should not be permitted to challenge the private placement on the sole ground of restrictiveness.16
In such cases, blind insistence upon placement in the LRE tends to misdirect focus and serve to
distract from an analysis of a child’s unique educational needs.17 Additionally, in private school
tuition reimbursement cases, once it has been determined that the public school district has failed
to provide a Free Appropriate Public Education (“FAPE”), the restrictiveness of the alternative
environment selected by the parents should be given nominal weight in rare cases, but generally
should not be a consideration.
This Article explores the history of the IDEA as it pertains to the LRE requirement, case
law articulating the tests adopted to determine whether a school district has complied with the
LRE requirement, and the different standards used to determine whether a parent’s unilateral
private school placement is appropriate. Particular attention will be paid to the way in which
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12 See, e.g., Andrew S. Gordon, Special Education In Massachusetts: Reevaluating Standards In Light Of Fiscal Constraints, 26 NEW
ENG. L. REV. 263, 284–87 (1991) (noting tensions in Massachusetts resulting from burden of special education costs resulting from a
high qualitative standard in that state); see also Gary L. Monserud, The Quest for a Meaningful Mandate for the Education of Children
with Disabilities, 18 ST. JOHN’S J.L. COMM. 675, 682 (2004) (discussing how Massachusetts’s repeal of heightened qualitative SPED
mandate was driven by a desire to reduce costs).
13 Restrictiveness considered: Muller ex rel. Muller v. Comm. on Special Educ. of E. Islip Union Free Sch. Dist., 145 F.3d 95, 105 (2d
Cir. 1998); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836–37 (2d Cir. 2014); C.B. ex rel. B.B. v. Special Sch. Dist. No. 1,
636 F.3d 981, 991 (8th Cir. 2011). Restrictiveness not considered: Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d
391, 400 (6th Cir. 1998); Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 770 (6th Cir. 2001). Residential placements
are viewed somewhat differently: Shaw v. Weast, 364 Fed. App’x 47, 54 (4th Cir. 2010) (finding that a residential program selected
by parents was overly restrictive where private day program offered by public district enabled child to attain educational benefit where
her mental health issues were segregable from her educational needs); Ashland Sch. Dist. v. Parents of Student R.J., 588 F.3d 1004,
1009 (9th Cir. 2009) (holding that a residential placement must be necessary to provide special education and related services and
mainstreaming is a consideration in determining appropriateness).
14 Though used interchangeably, the terms “mainstreaming” and “inclusion” are different from the concept of an education delivered
in the LRE. “Regular classrooms” are deemed the mainstream. “Inclusion” implies the opposite of segregation, hence,
“mainstreaming” and “inclusion” can rightly be viewed as synonymous but they are narrower than LRE, which can have many
meanings, depending upon the placements that are possible for a disabled child. Monserud, supra note 12, at 696; see also Mark T.
Keaney, Examining Teacher Attitudes Toward Integration: Important Considerations For Legislatures, Courts, and Schools, 56 ST.
LOUIS L.J. 827, 828–29 (2012) (criticizing debate among legal scholars about the efficacy of the integration presumption for failure to
account for teacher ability and attitudes toward inclusion of special education students in the general education classroom, arguing that
legislative and judicial preference for inclusion is justified, and suggesting that factors impacting teacher attitude toward inclusion be
addressed by legislatures, courts and schools).
15 See Monserud, supra note 12, at 765 (noting that in cases where parents have sought modifications in neighborhood schools, “[t]he
LRE requirement has not proved to be empowering . . . .”).
16 On another note, the IDEA takes a short-term view and fails to consider that many children need education in a highly-specialized
setting for later success in mainstream education and in mainstream society.
17 Monserud, supra note 12, at 725 (discussing Roland M. v. Concord Sch. Comm., 910 F.2d 983 (1st Cir. 1990) (weighing public
school education in a mix of self-contained classes against private residential placement selected by parents, the court concluded that
parent’s selection was overly restrictive and that public school placement properly permitted socialization)). Yet another scholar offers
a compelling argument that the law’s insistence on protecting the right to education in the LRE is a protection against racial
segregation. La Toya Baldwin Clark, The Problem with Participation, 9 AM. U. MODERN AM. 23 (2013).
