Many California parents who successfully advocated for their kids to be included in a general education classroom have been frustrated by a state regulation that allowed districts to ignore the core IEP rule of least restrictive environment (LRE) during extended school year (ESY).
But the purpose of special education is overarching, even in the summer. A recent decision in the US District Court established that IDEA’s LRE rule does apply to ESY.
MC vs LAUSD involved a student, known as MC, who had been successfully included in a general education setting for several years. His IEP team was clear that his placement in a general education setting with support had been a complete success during the regular school year. But the district failed to consider whether they could offer him a similar placement among typically developing peers for the extended school year. The district provided only special day classes for summer school, so district members of the IEP team would offer only those settings for ESY. The court held that the district must provide MC’s ESY program in the least restrictive setting in which he could be successful in.
To find out more about the implications of the decision and what it means for parents, we sat down with the attorneys who won this case: David German, a partner at Vanaman German, and Melinda Bird, senior litigation counsel at Disability Rights California.
For decades, districts didn’t have to provide inclusive placements during ESY because of a state regulation that said districts weren’t obligated if they didn’t have any general education summer school. This allowed schools to provide different ESY programs in completely segregated classrooms for students who were included in general education classrooms during the school year.
Not all kids with an IEP qualify for ESY. According to federal regulations under IDEA, the IEP team needs to assess that the child is likely to regress and that the time that it will take to regain their skills in the fall is burdensome OR that the child is in the process of acquiring emerging skills, such as learning to read. When students who are doing well in an inclusive setting during the regular school year qualify for ESY, they are often offered no option for ESY other than a special day class (SDC) program with no interaction with typical peers.
A case from 2014 in the state of New York, TM vs Cornwall Central School District, gave many parents hope that districts would be forced to come up with solutions to provide inclusive summer school. David German explains that although the case did not apply in California, “We believe that it should have applied…That was the correct ruling, and that should be the law across the nation.“ However, several decades ago, the state of California passed a regulation (5-CCR-3043) that said that if a student was placed in a general education classroom during the regular school year, that portion of their IEP didn't have to be implemented during the extended school year. “California had provided, kind of explicitly, a way for districts to opt out of the obligation that was set forth in TM [vs Cornwall Central School District], and that's what we wanted to challenge. We went after that directly in this case.”
This regulation was quietly repealed as of January 1, 2023, but in any case, the court rejected LAUSD’s argument that this regulation absolves them of responsibility to provide ESY within LRE.
In the clip below, Melinda Bird explains why repealing the education code regulation wasn't enough to change ESY in practice in California school districts:
Now that many districts are offering more summer programs, parents often request that ESY be offered in an inclusive setting. After the pandemic, many districts offered summer school by invitation to students who needed to regain skills. Using the Expanded Learning Opportunities Program, many districts now offer summer school to students from low-income households or to English language learners. Some districts also partner with a third party, such as an education foundation or a private business, to offer summer camp or summer school on the public school campus. High school students can also enroll for summer courses at community college. However, districts have been reluctant to offer ESY instruction embedded in these programs for families seeking an inclusive summer school experience.
For many schools, teachers, and administrators, the idea of general education ESY is confusing. They have been trained to think of ESY as limited to “maintaining skills” rather than building skills. The expanded learning and pandemic programs are designed to teach kids skills that they missed during the year. Bird and German explain more about the court’s rejection of this idea of ESY in this clip:
Bird tells us, “The idea of regression is the eligibility trigger. It doesn't define the content.” And German reiterates that the court did not accept the district’s limits on ESY as “‘We're only going to provide you with a program where you can tread water. No, you can't make progress.’ That's not how learning works.”
The duration of the program that had been offered to MC also came up in the case of MC vs LAUSD. Many districts offer ESY for 20 days — a four-week program. However, IEP teams can determine that a student needs a longer duration of ESY during the break from school or needs ESY services during other vacation periods. The issue reflects a difference between the federal IDEA regulations (Sec 300.106) and the California Education Code, which talks about ESY as only the period between the end of one school year and the beginning of another. In California, districts must provide ESY for a minimum of 20 days. German points out that this 20-day period does not limit districts from providing services over a longer duration if the IEP team determines it is necessary.
The 20 days rule might also apply to funding. Many SELPA organizations still provide on their websites advice to districts indicating revenue conditions for collecting average daily attendance revenue for ESY students, if the district’s or charter school’s ESY program is provided for a minimum of 20 instructional days, including holidays. Their advice still contains limits such as that a maximum of 55 instructional days, excluding holidays, is allowed for individuals in special classes or “centers for the severely handicapped,” and a maximum of 30 instructional days, excluding holidays, is allowed for all other eligible students needing an extended year. These conditions appear in older versions of the regulations, but the current version of Cal. Code Regs. tit. 5 § 3043 does not mention ADA funding at all. Undivided could not confirm that this funding limit is still in effect, but certainly these limits apply only to the funding that schools get, not to what they can do.
Another implication from MC vs LAUSD relates to the definition of least restrictive environment. Many special education attorneys find that school districts often misunderstand the way courts see this legal concept because they see LRE as being an issue that involves only the amount of access a student has to typically developing peers. In this view, the LRE concept is about only the location of a student’s placement relative to nondisabled peers. However, in MC, the court also took into account how close other elements of the program were to what the student would receive within a general education setting.
The district stated that it had only two SDC options for summer: an alternate curriculum class and a core curriculum class for students with IEPs who were able to work on grade-level curriculum. MC’s mother requested the core curriculum class instead of the alternate curriculum class, but the district argued that there was no difference in terms of the classrooms with respect to LRE because the students in both classes all had IEPs. The court agreed with MC’s mother that the core curriculum class was a less restrictive placement because it provided access to the grade-level curriculum, an essential element of a general education setting. German explains that this decision adds another layer of consideration to the LRE analysis:
“Previously, the continuum was just how much access do you have…to typically developing peers. If you had various special day classes to consider for placement, while they were all segregated, so long they were all on a general education campus, that was considered less restrictive than if you were on a separate campus. Among the different special day classes on a campus where there were other classes, the LRE analysis was that there was really no difference in terms of restrictiveness based on the actual content of classrooms.
“But in this case, the court said, well actually, restrictiveness is a little more nuanced concept. It's not just the students you are with, it's also how close is the program to the program in a general education classroom, which is where everything starts and everything should be compared against. In this case, we put on a lot of evidence that having access to the core curriculum was important as to the substance of the student’s education, and that because that was closer to a general education classroom, then that mattered, and so it was heartening that the court acknowledged that.”
Bird explains that because MC did not seek class action status, parents should anticipate that districts may not be ready to implement this change to their usual practice: “At this time, the decision only applies to the student MC. Parents can always raise this as persuasive authority for their own child. There are more motions and things that we're going to do in the case to try and get a broader reading of a broader ruling that would make it applicable to more children. And again, the goal is to get guidance from the State Department of Education that parents could use to work with their local district. We don't have that yet.”
However, there are some additional steps parents can take to advocate for an inclusive ESY placement.
German’s advice to parents is to object to any change in placement during the summer. Parents can partially sign their IEP, making an exception for their disagreement with placement for ESY.
State that you would like ESY to be in the same environment as documented in the IEP for the rest of the school year. If your child can be successful and make progress in a general education setting during the school year, they can do so during the summer too. German continues in this clip:
“I think they should say, ‘My child has the right to receive their education in the least restrictive environment in which they can make progress. And that progress is measured by their own goals and what their needs are. It's not, you know, some objective measure of what a third-grade standard or a fourth-grade standard is. If during the school year it's been proven that a student can make progress among typically developing peers in a general education setting, they should have that option.”
If the IEP team does not agree, German says that parents should write a letter or sign the IEP in a way that says, “While I agree that my child does qualify for extended school year services and does require extended school year services in order to receive an appropriate overall program, I do not agree with the provision of those services in a segregated setting.”
If a district simply refuses to provide other options, then parents' next steps are pretty limited, says German. You can provide an alternative program at private expense and ask the district for reimbursement. You need to give the school district at least 10 business days’ notice that you will be providing a private program and seeking reimbursement from the district for the cost. It's important to document this request. This gives you the option of using due process to recover that expense.
Bird reiterates that families should look around and try to identify a summer program that they think would support their child. Putting a real alternative on the table can be very helpful: “The court was clear [in MC vs LAUSD], and direction from the Department of Education, the state, the federal Department of Education, said that there are many, many possibilities.”
For example, another school district may have a gen ed summer program, or there might be a private summer school program that would benefit your child. Options could include a summer school in another district, a summer camp, or, for older children, a job placement with a job coach.
Bird and German agree that the district should cover the expense of ESY even if it’s in a private school/camp or at a summer school provided by a third party, such as an education foundation.
German tells us, “If there is an educational foundation or pay-for-classes summer school, you should demand access to it. And you should require the district to pay for it and to fund any services that your child needs in order to access that program. I also believe that those programs violate the state's constitution about a right to free education, which is really robust in California.”
In considering their options for inclusive summer school, districts will be able to utilize summer programs designed for children from low-income households and for English language learners, funded by the Expanded Learning Opportunities Program.
Bird and German tell Undivided that districts can waive those requirements by relying on the guidance from the US Department of Education. “Even if the funding is complicated…the district can always obtain a seat for a student with a disability and have them access the program supports if it's something that the district is providing.”
Another issue is that many of these programs are not advertised and are “by invitation only.” Parents should request information on all the summer programs offered by the school, the district, and third parties for the district.
Bird tells us, “It should be on the table at the IEP meeting where the ESY program is being discussed, anything that is an inclusive option… It would be a good idea for parents to investigate options and have a program that they think would be good to put on the table. But the responsibility is really the school district’s to scour around and give the parents choices. It's the school district that should have an arrangement with other districts that do operate gen ed summer school. The school district should reach out and make those arrangements and give all options to the parents.”
We asked the attorneys about an Undivided family whose school had asked them to choose between summer school at their regular school with no related services or ESY at another campus with occupational, physical, and speech therapy. An important principle, German said, is that these issues should not be determined by the convenience of the adults at the expense of the students.
If private placement sounds appealing, parents may wonder if they can require the district to fund a private summer school or camp with services instead of an inclusive placement offered at their school. Bird believes this is unlikely since the district is already offering appropriate supports.
“That would be very hard and probably not in the child's best interest. Keeping the child within the district with typically developing peers with whom they may have other contact seems like a really good fit to be the most positive outcome for the child.”
Some parents might wonder about students whose year-round placement is a restrictive setting. Could these students also benefit from this landmark decision? Bird explains that this also is unlikely.
“Special education is a 12-month program. And if the baseline for the child in their IEP is not full inclusion, if they're in an SDC, it would be very difficult to argue for a different degree of inclusion for the summer. I'd advise your family in that situation to look at their child's placement in the regular school year. Our belief is that virtually every child can be placed in [an inclusive] setting if the school district is committed to it. We see this in other states — California's rate of inclusion is terrible compared to other states.”
Bear in mind that since social and recreational programs have been restored by Regional Centers, many families are able to benefit from inclusive summer camp experiences supported by Regional Center or the Self-Determination Program.
Bird reminds us that Regional Centers should also be providing the supports children need to make inclusive recreational summer camp work. “If the Regional Center funds a summer program, it should also be providing the supports and accommodations that the child needs. This decision may mean that Regional Centers could look to a district for generic funding to carry some of the cost of the summer program. But for a child who qualifies, I think at some basic level, it should be the Regional Center's responsibility to provide all the accommodations that the child needs if there's no generic [resource].”
A regular recreational summer camp may be the best place for some students, German tells us:
“For students with more significant support needs, social pragmatic language is a core academic subject, and a lot of times, districts discount…the importance of inclusion because they think we can work on your math goals or your reading goals…within a segregated setting.
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