School Districts Must Consider LRE and Length of Program for Extended School Year Programming
On November 28, 2022, the Office of Administrative Law approved a regulatory action to amend Title 5 of the California Code of Regulations regarding Extended School Year (ESY). This action, which took effect on January 1, 2023, resulted in the elimination of two provisions upon which LEAs had relied to guide their summer program design process for ESY-eligible students. Those former helpful provisions in Title 5, California Code of Regulations § 3043 previously stated:
(g) If during the regular year an individual’s individualized education program (IEP) specifies integration in the regular classroom, a public education agency is not required to meet that component of the IEP if no regular summer school programs are being offered by that agency.
(i) This section shall not apply to schools which are operating a continuous school program pursuant to Chapter 5 (commencing with Section 37600) of Part 22, Division 3, Title 2 of the Education Code.
On August 9, 2023, the United States District Court, Central District of California, issued the first opinion analyzing what constitutes the least restrictive environment (LRE) for mainstreamed students who require ESY services after 5 CCR § 3043 was amended. (M.C., a minor, by and through his guardian ad litem, S.B. v. Los Angeles Unified School District, a local educational agency, and California Department of Education, Case No.: 2:20-cv-09127-CBM-E.)
The case involved an appeal brought by an 11-year-old student with Down syndrome and intellectual disability who was offered special education and related services in a special day class for twenty days, the duration of the Los Angeles Unified School District’s 2019 ESY. M.C. argued that the District should have offered him placement in a regular class, similar to his IEP placement during the regular school year. The Parties agreed that M.C. benefited from mainstreaming during the regular school year, during which time he was offered modified curriculum, inclusion specialist and behavior intervention supports and services. The District did not operate regular classes during the ESY for elementary school children. The District did, however, offer two types of ESY programs, one with non-modified curriculum and one with modified curriculum, characterized as an “alternative curriculum” program. The District prevailed at the due process hearing, with the Administrative Law Judge concluding that the absence of any available summer programs for children without disabilities was dispositive of the issue, consistent with 5 C.C.R. § 3043(g).
On appeal to the United States District Court, the Court ruled that the District denied M.C. a free and appropriate public education, hence a FAPE, when it offered him services in the alternative curriculum SDC for ESY rather than a class “most resembling” his LRE during the regular school year. The Court noted that 5 C.C.R. § 3043(g) had been repealed, and further found that the language of the former section violated the Individuals with Disabilities Education Act. The Court’s ruling took issue with the District only making available two special day classes for ESY. However, and as noted in the Court’s decision, the “core curriculum” SDC, which was discussed at the IEP team meeting but not offered, delivered grade level, non-modified curriculum and, M.C.’s parent had requested this SDC option for ESY. Further, the record was unclear about whether the students anticipated to attend the core curriculum SDC were socially or emotionally at grade level with their non-disabled peers and hence capable of providing the same or similar socialization benefits as a general education summer school class.
The Court rejected the District’s contention that the LRE requirement is limited in the ESY context by what programs the school district offers, specifically citing the language from the second Circuit in Walczak v. Fla. Union Free School District that “[U]nder the IDEA, a disabled student’s LRE refers to the least restrictive educational setting consistent with that student’s needs, not the least restrictive setting that the school district chooses to make available.” According to this Court, once M.C.’s individualized education program team determined that his LRE was a general education classroom, the IDEA required the District to offer him that program, consistent with his needs, even during the summer as he was eligible for ESY.
The Court also rejected the District’s argument that to offer the full continuum of placement options during ESY would require it to establish programs for nondisabled students for the sole purpose of being able to ensure that LRE is provided to ESY-eligible students. The Court concluded that the IDEA required the District to consider whether there were other placements that could have provided M.C. with mainstreaming opportunities, including placements with other public or private agencies.
In reversing the ALJ’s decision, the Court also ruled that the District denied M.C. a FAPE by predetermining the length of the ESY. It found the IEP team effectively entered M.C.’s IEP meeting with a “take it or leave it” position by placing him in a twenty-day SDC program without individual evaluation made to ensure that the frequency and duration of programming was appropriate to meet his needs with respect to any regression and limited recoupment ability determined by the IEP team.
What does this mean for LEAs?
LEA’s have always been aware that the general concepts of LRE apply to ESY programming. However, the Court’s analysis may be perceived as a sea change for California school districts that for years have relied on the now eliminated regulatory provisions.
To best ensure IEP teams are making legally compliant decisions with respect to ESY programming, we invite your participation in a Webinar “What’s Next for ESY? A Proactive Discussion About Defensible Extended School Year Programming” to be convened October 6, 2023 from 8:30 a.m. – 10:00 a.m. We encourage you also, to contact your regular counsel or the Student Services and Disabilities Law Group at AALRR if you have any specific questions regarding this Alert.