the alternative selected by the parents was appropriate, and (3) whether the equities favor the
Carter established that private schools selected by parents are not subject to the same
standards as public schools.116 Private schools in which parents unilaterally place their children
will not be deemed ‘inappropriate’ because they do not develop IEPs, do not have state-certified
teachers or are not on a list of state-approved schools.117 The Court did not otherwise address
factors that should be considered in determining the appropriateness of a parent’s unilateral
school selection.118 The Court, however, did not mention whether the parent’s unilateral private
school selection can be scrutinized for restrictiveness. Moreover, codification of Carter in 20
U.S.C. § 1412(a)(10)(C) does not specify factors that should be considered in assessing a parent’s
selection.119 The Court was silent on the issue of whether alternative placements selected by a
parent must comply with the IDEA’s mainstreaming preference in particular.120 Thus, the factor
of restrictiveness remains in play. For example, the Sixth121 and Eighth Circuits122 do not consider
restrictiveness in evaluating the appropriateness of a unilateral enrollment.123 The Third Circuit
has adhered to this position in some, but not all cases.124 The Second Circuit considers
restrictiveness, but in an extremely well-reasoned recent decision. In C.L. v. Scarsdale Union
Free School District, the Second Circuit de-emphasized that lone factor, looking, instead, to the
qualitative aspects of the private alternative selected by the parents.125
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115 See Carter, 510 U.S. at 12–13; Walczak v. Fla. Union Sch. Dist., 142 F.3d 119, 128–29 (2d Cir. 1998); Forest Grove Sch. Dist. v.
T.A., 557 U.S. 230, 236 (2009); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 184–85 (2d Cir. 2012) (“This framework is known as
the Burlington/Carter test.”); see also Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 369 (2d Cir. 2006) (referring to the first
two prongs of the test only), cert. denied, 552 U.S. 985 (2007). Section 1415(b)(2)(6)(A)( iii) provides that, after consideration of “a
preponderance of the evidence” a court “shall grant such relief as the court determines is appropriate.” 20 U.S.C.
§ 1415(b)(2)(6)(A)( iii) (2012).
116 Carter, 510 U.S at 14.
117 Id. at 13–14.
118 Some people interpret the Court’s reference to the decisions below in regard to the significant academic progress made by the child
at issue as indicating an ‘appropriateness’ standard differing from the de minimis standard established in Board of Education of
Hendrick Hudson Central School District, Westchester Cnty. v. Rowley, 458 U.S. 176, 201 (1982).
119 Case law reflects what parents need not prove. See Frank G., 459 F.3d at 364. To wit—parents do not need to show that their
placement meets IDEA standards for a FAPE, they do not need to show that the private school meets state standards or requirements,
and unilateral selections are not subject to the same mainstreaming mandate as public schools. Id. at 364. All parents need to show is
that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped
child” that enable the child to benefit from instruction. Id. at 365 (citing Rowley, 458 U.S. 176, 188–89). In C.L., influential factors in
the finding that the unilateral placement was appropriate included consideration of the Eagle Hill program, including such factors as
class size, close oversight, as well as the child’s progress as demonstrated by his increased enthusiasm for school, his increased
confidence, and improvement in expressing himself and working independently. Id. at 834. The S.R.O.’s decision in C.L. accepting
Scarsdale’s argument that the child had progressed in the public school illustrates that the determination of whether a child gains
“appropriate” educational benefit offered by a public school program can be dangerously subjective. Id. F.3d at 834–35.
120 See Carter, 510 U.S. at 13–14.
121 Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 400 (6th Cir. 1998).
122 C.B. ex rel. B.B. v. Special Sch. Dist. No. 1, 636 F.3d 981 (8th Cir. 2011).
123 In Board of Education Murphysboro v. Illinois State Board of Education, the court noted that the restrictiveness of the unilateral
placement was irrelevant, since the placement offered by the public school district was inappropriate and no other appropriate public
placements were made available. Bd. of Educ. Murphysboro v. Ill. State Bd. of Educ., 41 F.3d 1162, 1168 (7th Cir. 1994). Thus, faced
with only one option, its restrictiveness was a non-issue. Id. at 1168. The court explicitly stated “the mainstreaming requirement was
developed in response to school districts which were reluctant to integrate mentally-impaired children and their non-disabled peers. It
was not developed to promote integration with non-disabled peers at the expense of other IDEA educational requirements and is
applicable only if the IEP meets IDEA minimums.” Id. at 1168.
124 Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); Lauren W. v. DeFlaminis, 480 F.3d 259, 276 (3d Cir.