Sixth Circuit Court Of Appeals Rules In Favor Of Inclusion And Acceptance For Student With Down Syndrome

Attorney Justin Gilbert breaks down recent developments of the L.H. v. Hamilton County Department of Education with a summary of the case.

On Aug. 20, 2018, the United States Court of Appeals for the Sixth Circuit in Cincinnati released its decision in L.H. v. Hamilton Cty. Dep’t of Educ., 2018 U.S. App. LEXIS 23070 (6th Cir. Aug. 20, 2018). This decision becomes binding on the states of Tennessee, Kentucky, Ohio and Michigan and are persuasive authority on other states.

In L.H., the Court considered inclusion of a third-grade student with Down syndrome, L.H. had completed kindergarten, first and second grades in an inclusive classroom. For third grade, the school system wanted L.H. to be sent to a separate school where he would be taught his academic subjects solely alongside other students with disabilities. The school system argued that L.H. could not “keep up” with the demands of the third-grade curriculum in regular education and that he would fall behind his peers, becoming a “classroom of one.” The separate school, it said, would be more “structured.” However, it would also be an alternative online curriculum (“the Unique Learning System”), not tied to state standards, with no grades for measuring progress, no homework and math taught by an uncertified gym teacher.

Not surprisingly, the parents objected to the separate school and, instead, privately placed L.H. at a Montessori school that taught a diverse group of students from kindergarten through eighth grade. The parents filed for due process under the Intellectual Disabilities Education Act (IDEA). The parents lost at due process where they proceeded without an attorney. They hired counsel and appealed to a federal district judge. They retained highly qualified experts to opine on the education of children with Down syndrome and specifically L.H. The District judge agreed L.H. should have been included. However, the District judge declined to allow reimbursement of the private Montessori school. Both the school and the parents then cross-appealed to the Sixth Circuit Court of Appeals in Cincinnati. The Sixth Circuit found for the parents on all counts: L.H. should have been included and the parents are entitled to reimbursement for the Montessori school.

The National Down Syndrome Society wrote an amicus curiae (“friend of the court”) brief on behalf of L.H.

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