The IEP, that was contested by the parents and found inappropriate by the court placed the child
in a segregated, small special class in a special school with related services. 200 BAC provided
individualized education in a segregated classroom, but recess, hallways and two non-academic
classes were shared with typically-developing students at the host school. 201 The New York
Department of Education (“N.Y. D.O.E.”) argued that the one-on-one setting was overly
restrictive, but the court held that BAC was appropriate. 202 The court noted that the public school
placement offered by the N.Y. D.O.E. merely gave lip service to the LRE concept; testimony
established that there was no real social interaction between mainstream and disabled students. 203
Though housed in a school with mainstream programs, children in the special education program
offered to M.H. used a separate entrance, separate cafeteria and separate classes. 204 By any
measure, this is unjustified tokenism that fails to serve the IDEA’s purposes.
The authors acknowledge that some parents still have to fight for integration. Those
parents at least find protection in the strong body of law supportive of inclusion. Others, however,
are presented with sub-standard public educational options and are forced to fight for specialized
placements. An ill-kept secret is that punitive litigation is a tactic regularly used by school
districts to threaten or wear down parents. 205 School districts, defending against private placement
claims on the grounds of restrictiveness are not really advancing lofty integrationist ideals;
instead, cost considerations are the real impetus, 206 or they simply cannot deliver. 207
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200 M.H., 712 F. Supp. 2d at 134.
201 Id. at 144.
202 M.H., 685 F.3d at 252–54.
203 Id. at 254.
205 S. Rep 108-185, S. Rep. No. 185, 108th Cong., 1st Sess. 2003, 2003 WL 22536141, at *6 (Leg. Hist.). The 2004 amendments
acknowledged this: “The committee is discouraged to hear that many parents, teachers, and school officials find that some current
IDEA provisions encourage an adversarial, rather than a cooperative, atmosphere, in regards to special education.” Id. See also infra
note 5 (noting that school districts are able to secure liability insurance coverage funding the defense of actions claiming IEP
deficiencies and that attorneys’ fees may be recovered by parents who are the substantially prevailing party, but that expert witness
fees are not recoverable).
206 EDUC. LAW CTR., FUNDING, FORMULAS, AND FAIRNESS: WHAT PENNSYLVANIA CAN LEARN FROM OTHER STATES’ EDUCATION
FUNDING FORMULAS 2 (2013), available at http://www.elc-pa.org/ELC_schoolfundingreport.2013.pdf (explaining how the IDEA
provides nominal monetary support for special education and that local school districts primarily shoulder the load); see also Bd. of
Educ. Minutes from the N. Shore Sch. Dist. (Feb. 16, 2012), available at
http://www.northshore.k12.ny.us/Board_of_Ed/Minutes/2012/2-16-12-Minutes.pdf (showing how the Superintendent responds to
complaints about amounts budgeted to special education).
207 Special education students comprised thirteen percent of the total population in 2011–2012, amounting to 6.4 million students out
of a total elementary and secondary school population of fifty-five million. GRACE KENA ET AL., NAT’L CTR. FOR EDUC. STATISTICS,
THE CONDITION OF EDUCATION 2014 54–55 (Thomas Nachazel & Allison Dziuba eds., 2014), available at
http://nces.ed.gov/pubs2014/2014083.pdf. Of those 6.4 million students classified under the IDEA, ninety-five percent are enrolled in
regular schools. Id. Outcomes for these students, however, are substandard. For instance, 74.9 percent of all high school students in
New York graduated high school in four years in June 2013, whereas only 48.7 percent of students with disabilities graduated from
high school in four years for the same period and 37.2 percent of the total graduating cohort were college and career ready, while only
5.4 percent of the disabled students were college and career ready. SPECIAL EDUC. TECHNICAL ASSISTANCE NETWORKS, NEW YORK’S
STATE SYSTEMIC IMPROVEMENT PLAN (SSIP) FOR RESULTS DRIVEN ACCOUNTABILITY IN SPECIAL EDUCATION 18 (2014), available
at http://media.wix.com/ugd/10c789_01ae2271dcd9460db847f1c96648d9d6.pdf; see also Graduation Rate Data, N. Y. STATE EDUC.
DEP’T (June 23, 2014), http://www.p12.nysed.gov/irs/pressRelease/20140623/home.html (follow “Graduation Rate and Enrollment
Outcomes by Student Subgroup” hyperlink) (showing also that the dropout rate of all students for the 2009 four-year cohort was 7.8
percent among all students, with a 6.8 percent dropout rate among the general education population and a remarkable 13.9 percent
dropout rate among students with disabilities). Cf. MARIE C. STETSER & ROBERT STILLWELL, NAT’L CTR. FOR EDUC. STATISTICS,
PUBLIC HIGH SCHOOL FOUR-YEAR ON-TIME GRADUATION RATES AND EVENT DROPOUT RATES: SCHOOL YEARS 2010–11 AND 2011–
12 9 (2014), available at http://nces.ed.gov/pubs2014/2014391.pdf (citing national figures showing an overall graduation rate of
eighty percent graduation rate among all students and a sixty-one percent graduation rate for disabled students as of June 2012). The
national dropout rate among all students in the United States in 2012 was seven percent. Fast Facts: Dropout Rates, NAT’L CTR. FOR
EDUC. STATISTICS, https://nces.ed.gov/fastfacts/display.asp?id=16 (last visited May 12, 2015). The dropout rate for IDEA classified
students ages fourteen to twenty-one in 2012 was 19.7 percent. Annual Disability Statistics Compendium: Table 11.7: Special
Education—Dropout Rate Among Students Ages 14 to 21 Served Under IDEA, Part B: 2011-2012, INST. ON DISABILITY, UNIV. OF