educational authority’s failure to offer a FAPE.144 Dissatisfied with the IEP offered by the school
district, the parents in this case removed their children to a specialized private school serving
children with specific learning disabilities.145 At the appellate level, the public school district
asserted that the private school selected by the parents was inappropriate because it was a
restrictive environment.146 The Third Circuit agreed with the district court that “imposition of the
[LRE] requirement on private placements would vitiate the parental right of unilateral
withdrawal.”147 However, in Lauren W. v. DeFlaminis,148 though parent’s choice of school was
not challenged on the grounds of restrictiveness of the setting, the court nonetheless stated that “a
private placement is ‘proper’ if it (1) is ‘appropriate,’ i.e., it provides ‘significant learning’ and
confers ‘meaningful benefit,’ and (2) is provided in the least restrictive educational
environment.”149 The court in DeFlaminis cited to Ridgewood Board of Education v. N.E.150 for
this proposition.151 The Ridgewood court stated: “[a] private placement may be proper if it is
appropriate and provided in the least restrictive educational environment” and referred to the
Oberti standards in assessing whether the parent’s private placement constituted the least
restrictive educational environment.152
In the Second Circuit, restrictiveness is still a factor used to assess the appropriateness of
a parent’s unilateral private school selection. In Muller v. East Islip School District,
restrictiveness of the private school selected by a parent was considered in assessing the
appropriateness of the parental choice.153 However, the parents’ choice was otherwise
educationally appropriate and sufficient to overcome the educational setting’s restrictiveness.154
Frank G. v. Board of Education, however, stated that parents are not required to consider the
restrictiveness of a school they select.155 The primary inquiry is on “educational benefit” and
whether the education meets the child’s individually unique needs.156 This places parents in a
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144 Warren G. ex rel. Tom G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83–84 (3d Cir. 1999).
145 Id. at 82.
146 Id. at 83.
147 Id. at 84; see also A.Y. v. Cumberland Valley Sch. Dist., 569 F. Supp. 2d 496, 502, 511–12 (M.D. Pa. 2008) (noting that while
appropriateness and restrictiveness are factors to be considered in evaluating a private placement, greater weight is given to
appropriateness, but holding that administrative record was insufficient to determine appropriateness of private placement in that
particular case); Coleman v. Pottstown Sch. Dist., 983 F. Supp. 2d 543, 568 (E.D. Pa. 2013) (holding that restrictiveness of private
placement does not render it “‘inappropriate’ for reimbursement purposes”).
148 Lauren W. v. DeFlaminis, 480 F.3d 259, 259 (3d Cir. 2007).
149 Id. at 276 (citing Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 248 (3d Cir. 1999)).
150 Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 238 (3d Cir. 1999) (noting that a less restrictive, but inappropriate
setting is not preferable to a more restrictive setting that provides a child with an appropriate education. In other words, educational
appropriateness should not be sacrificed in favor of a less restrictive setting. However, the appellate court remanded the issue on
whether the private placement was considered to the district court).
151 Lauren W., 480 F.3d at 276.
152 N.E., 172 F.3d at 248 (citing Oberti v. Bd. of Educ. of Clemton Sch. Dist., 995 F.2d 1204, 1213 (3d Cir. 1993)).
153 Muller ex rel. Muller v. Comm. on Special Educ. of E. Islip Union Free Sch. Dist., 145 F.3d 95, 105 (2d Cir. 1998) (holding that
failure to classify child as disabled was improper); see also M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000), cert.
denied, 532 U.S. 942 (noting that parents had failed to establish that education provided at their selected private school served their
child’s educational needs and that it was an overly restrictive setting); L.K. ex rel. Q. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 492
(S.D.N. Y. 2013) (finding that parents failed to adduce evidence demonstrating that specialized school met their child’s education and
social needs); Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 525 (S.D.N.Y. 2011) (holding that parents failed to
demonstrate that specialized school was appropriate for their child or that child could not succeed in a mainstream environment).
154 Muller, 145 F.3d at 105.
155 Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007) (stating that the
ultimate issue is whether the unilateral placement meets the child’s unique needs and enables them to receive educational benefit).
156 Id. at 364–65; see also M.S., 231 F.3d at 100–01 (noting that the SRO found that private placement was inappropriate both because
it failed to address child’s spelling and language needs and failed to produce progress in those areas and because it was overly