bind. While they do not do not have to consider restrictiveness in selecting a private school when
they feel FAPE has been denied, they still must be prepared to confront a school district challenge
or judicial scrutiny on those very grounds. More recently in C.L., the Second Circuit clarified the
weight to be given to ‘restrictiveness’ in evaluating a private school selected by a parent whose
child has not been offered a FAPE.157 Specifically, on appeal, the C.L. court held that
restrictiveness alone is an improper ground to deem an alternative selected by the parent as
The child in C.L. had been diagnosed with Attention Deficit Hyperactivity Disorder
(“ADHD”), a nonverbal learning disability executive function weakness.159 C.L. attended public
school from kindergarten through third grade.160 When C.L. was in kindergarten in school year
2004–2005, the school developed a Section 504 Accommodation Plan (“504 plan”).161 This plan
remained in place throughout C.L.’s tenure in the public school and, among other things,
provided occupational therapy, pull-out services in the school’s learning center and speech and
language therapy.162 During the spring of C.L.’s third-grade year, his parents arranged for several
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157 See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir. 2014).
158 Id. at 839. The court was influenced by the IHO’s findings of “progress” reflected in objective test scores, but also in evidence
about the child’s increased enthusiasm about attending school, his improvement in expression, and improved ability to work
independently. Id. at 834.
159Amanda Morin, Understanding Executive Functioning Issues, UNDERSTOOD FOR LEARNING & ATTENTION ISSUES,
https://www.understood.org/en/learning-attention-issues/child-learning-disabilities/executive-functioning-issues/understanding-executive-functioning-issues (last visited Apr. 25, 2015) (explaining how executive function affects the ability to plan, organize,
strategize, pay attention, remember details, or to manage time, including keeping track of time and finishing work on time or asking
160 C.L., 744 F.3d at 832.
161 Id. at 832. Section 504 of the Rehabilitation Act of 1973 provides that:
(a) No otherwise qualified individual with a disability in the United States, as defined in section 705
of this title, shall, solely by reason of he or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance . . . .
(b) For the purposes of this section, the term “program or activity” means all of the operations of . . .
. . . .
(2)(B) a local educational agency (as defined in section 7801 of [the Elementary and Secondary
Education Act of 1965]), system of vocational education, or other school system.
Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794 (2012). Eligibility for an IEP does not necessarily establish a disability under
Section 504. Ellenberg v. N.M. Military Inst., 572 F.3d 815, 820 (10th Cir. 2009). Qualification for protection under Section 504 as a
disabled person is determined by reference to regulations contained in the Code of Federal Regulations. Id. at 820. Key to
qualification is “substantial limitation” of a “major life activity.” Id. The purposes of the IDEA and Section 504 differ, however, in
that “Section 504 provides relief from discrimination, but the IDEA [provides] relief from inappropriate educational placement
decisions, regardless of discrimination.” Id. at 821–22. Exhaustion of administrative remedies under the IDEA is a requirement for
asserting claims under Section 504 for relief that is also cognizable under the IDEA. Cave v. E. Meadow Union Free Sch. Dist., 514
F.3d 240, 245 (2d Cir. 2008); see also 20 U.S.C. § 1415(l) (2012). In C.L., the court stated that relief under Section 504 is predicated
on a showing of “bad faith or gross misjudgment” and that this was not shown, notwithstanding the district’s failure to classify C.L.
under the IDEA. C.L., 744 F.3d at 841.
162 In October of 2004, while he was in kindergarten, C.L. received speech therapy once a week. C.L., 744 F.3d at 832. Pre-reading
instruction at the school’s learning resource center was started in January of 2005. Id. After an occupational therapy evaluation in
March 2005, the school convened a committee that determined that C.L. was entitled to a 504 plan. Id. The resultant plan provided for
one thirty-minute one-on-one pull-out occupational therapy session weekly. Id. at 832. For academic year 2005–2006, the plan was
revised to provide for weekly speech and language therapy with five other students, pullout-instruction at the learning center in four
sessions each week with six other students and occupational therapy twice a week in a one-on-one setting and once a week in a group
of four other students. Id. The only change to C.L.’s 504 plan for school year 2006–2007, second grade, was the elimination of the
group occupational therapy sessions. Id. Instead, C.L. was assigned occupational therapy sessions twice weekly in a one-on-one
setting only. Id. Despite his occupational therapy, an independent occupational therapy evaluation revealed that C.L. remained
impaired. Id. Consequently, his parents arranged for private occupational therapy in May 2007 to address C.L.’s visual-motor
integration, visual perception, and motor coordination needs. Id. at 832–33. The parents also secured a psychoeducational evaluation
that showed weaknesses in language, executive functioning and math. Id. at 833. The parents met again with the 504 committee. Id.
The committee noted, among other things, that C.L. was better able to focus in his small group at the learning center than in class, and
added fifteen hours of an in-class aide. Id. at 833. In June 2007, the parents secured an independent neurodevelopmental evaluation.
Id.. That evaluation agreed with the accommodations of the 504 plan, but suggested that the parents investigate specialized schools for