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Ennis Britton's On the Call
The Special Education Team of Ennis Britton hosts the podcast “On the Call." Each episode focuses on a real-life special education scenario you may have encountered or might bump into very soon. Ennis Britton attorneys Jeremy Neff and Erin Wessendorf - Wortman take the call and then discuss applicable cases and laws related to the scenario presented. Each episode wraps up with practical tips based on the Special Education Team's years of experience serving school districts throughout Ohio.
Ennis Britton's On the Call
On the Call: LRE Distractions
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When “a class within a class” becomes reality, what’s a district supposed to do? In this episode, Jeremy and Erin dig into the legal and practical considerations that come with moving a student from general education to a self‑contained environment. They walk through what teams must consider, what districts can do, and how to make sure support ends up where it’s most effective. A shift in placement isn’t about giving up; it’s about matching services to student needs in a defensible, well‑documented way.
Looking for more on this topic? Check out: Season 4, Episode 8: On the Call: Safety Fears and LRE Considerations, and Season 4, Episode 1: Kindergarten IAES
Join Jeremy for LRP's Ask the Attorney on 9/17. He’ll be hosting a live Q&A addressing common IDEA and Section 504 compliance challenges, including child find and evaluations, FAPE, discipline, and school safety. Bring your questions and get practical guidance from an experienced education attorney with firsthand school experience. Register here!
And is it Britain? How can I help you?
SPEAKER_01Hi, Jeremy. We have a third grader with autism and a speech impairment. Um, she's in general education, but the teacher says she's providing one-on-one support most of the day and just simply can't keep the rest of her class on track.
SPEAKER_00Okay. Well, uh, can you walk me through what that support she's providing throughout the day looks like?
SPEAKER_01Yeah, so we've added accommodations, um, more pullout services, simplified assignments, and even so, she's still significantly behind and needs nonstop nonstop prompting. Um, the team is leaning toward a self-contained contained option for core classes.
SPEAKER_00Okay, understood. Well, let's look at the data and help the team clearly document why a change might be needed and how they'll still include her when appropriate. I can walk you through that process.
SPEAKER_01Great.
SPEAKER_00Welcome to season four of On the Call, Ennis Britain's Special Education Law Podcast. I'm Jeremy Neff.
SPEAKER_02And I'm Aaron Wessendorf Wortman. Let's explore today's call.
SPEAKER_00So, Aaron, we both have young school age kids, and and sometimes the stories they bring back about like what their peers do in the classroom is so amazing. Yeah, and and you're just like astounded. But then does a part of you worry, like, God, what do other kids say about what my kid does in the classroom?
SPEAKER_02100%. 100% Well, I know what they say about my daughter because she comes home and tells me and it's just ooh, but it's fine.
SPEAKER_00Hopefully not a listener. She can be a listener, she knows it.
SPEAKER_02I tell it to her too. We work through those. We openly discuss it, we work through having self, you know, not self-pity parties, right? I mean and then we move on how we can appropriately handle it. I've taught her recently that your brain is actually very dumb. And that if you repeatedly tell your brain something, it will believe it. Yeah. And I think that's kind of ridiculous. But we've had to work on that. That what are the messages we're sending into our brains versus, you know, what do we what do we want to allow there to them to be there? Anywho, none of that.
SPEAKER_00Shout out to James Clear Atomic Habits. He builds the whole thing on the concept of like the where you fail is when you develop a habit to like expressly on the idea of I need to be somebody different. Instead, you should start with the idea of this is who I am and this is how I prove it. And and every time you do that thing, you're affirming that person that um you aspire to.
SPEAKER_02I like that. But when I read so at least I'm gonna spin what you just said successfully into this case. This is a district who did just that. I follow the processes, I know what I'm doing, and I did just that.
SPEAKER_00Well done. Boom! Yeah. Luckily the mics are on boom, so uh Aaron can't drop it. Spare you all that auditory assault. Uh yeah. So I mean that's what this is about. I mean, fundamentally, this episode is about that tension between fape and least restrictive environments. Right?
SPEAKER_02Yeah, and it can be tough, right? Because for school personnel, we're dealing with a lot of people's children, and all of our decisions under IDEA are individualized, but it's very hard because we have to balance all of those pieces, right? All of the individuals. Where on the other side, if I'm this is two episodes in a row, I'm gonna, we're gonna just go ahead and quote Gazelle. Oh. Right? We're talking about somebody's baby here. We are, right? No matter the age of someone's baby, we're talking about their baby. And they have every right to say, I care most about my kid here. I don't have to care about everybody else's.
SPEAKER_00Well, I mean, maybe not legal, right? Yeah, not legal, right? But they can say it.
SPEAKER_02We understand why they say it. How about that? Fair enough. So let's talk LRE, right? Isn't that what we're doing?
SPEAKER_00I I think we are. And and before we jump into it, I think it is worth just the historical context because this really does help us understand what IDEA wants us to do. And this is very much an idea episode. A lot of the principles would carry over to 504. But before I took effect, the and these these numbers are shocking, but these are from like, you know, like the official sources, these aren't advocacy groups saying it. In 1970, only one in five children with disabilities was educated in public schools. And some states would exclude entire categories of students, like, oh, if you're deaf, you don't go to public schools. So so it was very much IDEA was a a response to this. It was a response to the idea that, you know, back before IDEA, we would talk about uh children as being untrainable or uneducable. And IDEA rejects that entirely. And that rejection really does point to, though, what the law wants, which is it is very much built on the idea of inclusion. And and that cuts both ways. It does. Today we're going to be talking about when it's the school that is looking to a more restrictive setting, but it cuts both ways. And and today, just as a little bit of success story, and we've a few times over the past year uh pointed to in November of 25 was the 50th anniversary of idea. Uh, when you look today at what educators are able to do to balance those competing needs that Aaron was talking about and demands, more than two-thirds of children with disabilities in public schools in America are included for 80% or more of the school day. Um so the there is a dramatic move in the direction of the law, what the law wanted, what it was meant to address.
SPEAKER_02So with that though, and so a dramatic movement towards compliance with the law, right? Because the law really fundamentally under LRE, right, we look at to the maximum extent appropriate, we are educating students with disabilities with children who are non-disabled, right? I mean, that is your I know the the case talks a lot about mainstreaming, and a lot of the language here hasn't fully caught up mainstreaming inclusion either way. And it also requires, at least under the LRE mandate, that removal only occurs if the nature or severity of the disability is is really so that we can't, or right, such an education with the use of supplementary aids and services cannot be achieved satisfactorily in the regular ed setting. Yep. So really it it's done in the regular education setting unless it it can't. But that can't has to be in sort of, I would view this to be trialing services, trialing supports, and working our way out that continuum as opposed to jumping spot to spot.
SPEAKER_00Yeah, or shoehorning like, oh, this is your category, this is what you do.
SPEAKER_02Correct.
SPEAKER_00Yep. In idea because it is category-based for eligibility, that that is always the risk that there might be a sense of the category drives things, but that's certainly not the case. And then like schools in in response to this are required to offer the continuum of placements. So um there are a wide range of people or places where people can be served. And, you know, starting with kind of that default of the classroom, the regular classroom, but getting more and more restrictive, you know, like what's the most restrictive setting? I suppose it's just being isolated at home. That seems to be the like the most different from you know having a peer group and a regular set of services. Is it residential? More importantly, it doesn't matter. The idea is we're, you know, just that the concept of default to something that looks very much like regular education. And as we move away from that, whether it's peer group or services, that's where we start to, you know, we need to be able to justify those steps.
SPEAKER_02But when you're jumping those steps, right, we're looking at, I think, a couple of different things. We're looking at what are a student's needs, how are they successfully supported where they are? Can they be successfully supported? Are there more things to add to their services and ports to keep them where they are? Or if really everything you're adding is still not moving the needle, right? Then I think it's time to look at moving the child down that continuum line.
SPEAKER_00Aaron Powell And this is where we've already we've bled over to FAPE, and it's so seamless because it's so hard. It's there is that tension of um you're sure every kid's kid theoretically could sit in a regular classroom, but are they going to receive FAPE? And as this case will point out, what's the impact on others in that classroom as well?
SPEAKER_02Aaron Powell Correct. And we don't, and I know there's references to cases throughout here, and you and I have talked offline on you know just varying scenarios we've had come up. Is it a classroom within a classroom that you're creating? Is that is that really what FAPE is is contemplating, right? If we are if a kid is being included in the back of a classroom, but it's really served by a teacher or an IS or an aide in the back of the classroom and it's not active engagement and interaction with peers, is that really FAPE? Is that really an LRE for a student? I mean, all of those are considerations along that can placement continuum.
SPEAKER_00Are we elevating form over substance when it comes to that?
SPEAKER_02Correct.
SPEAKER_00And there is an expectation. It's not spelled out specifically in the law or regulations. Uh the way that the feds have described it is that you need to consider, was the word they use. You need to consider um uh the the moving along that uh continuum of placements. Um that but the but we are first giving that consideration to uh the supports that are necessary, et cetera, et cetera. So yeah, and at the end of the day, we have our faith obligation, plenty of episodes talking about that. Um and so I I I think well, you've got a contemplative look on your face, Aaron.
SPEAKER_02No, you're good. Let's go into case.
SPEAKER_00Okay, so so that's what the law says about this tension. Let's talk about one particular case. So this one's um out of Texas, and it's a recent one, late 2025. So uh Beaumont Independent School District, one of my favorite names in Texas.
SPEAKER_02I'm allowed to use y'all then throughout the rest of this episode, yes.
SPEAKER_00I I'm not sure, you know, where Beaumont really fits. It's Texas. Well, yeah, that's a big old state.
SPEAKER_02I care. And if you're a Texas listener and you say, you know, we don't use y'all down here, you know what? You're in the south. I am not. And I think it's more fun. And I do this playfully as a podcast and not to connote anything other than y'all. And actually, as a random aside and then let's case talk, I used y'all a ton. So back um I'm a firm believer that one should always be involved in some sort of customer service as you get involved in life and jobs, and so did a lot of food service work. Waiters, waitresses, baristas, all the things, it was always y'all. It wasn't hey, you guys, and fend on it. Because we're across the river, you know, Kentucky has a little bit of a you all kind of it was, but you know, it I it endeared me to older people because uh if you said guys, oh no, hey guys, how are you today? No, hey y'all, how are you today? Oh man, I was just the adorable one. And it worked for a while.
SPEAKER_00And then Yins, if you're in Pittsburgh. Yins. Yins, yeah.
SPEAKER_02Yeah, yins? How yins?
SPEAKER_00Send us an email. What?
SPEAKER_02Yeah, yins are so never heard of anywho. We're going to text.
SPEAKER_00So um we've in in not to bury the lead, at the end of the day, this court's gonna say that no, there wasn't. That this child did need a more restrictive setting and the the district need to did what it needed to do to get there. Um it doesn't mean it was pretty.
SPEAKER_02Oh it was exhausting.
SPEAKER_00No, yeah, it was it was reading the history and yeah. So so this kid starts out in a special unit in preschool, although it's not entirely clear whether that's just what preschool is available, you know. Preschool's a little different than K-12. Because in in kindergarten and first grade, this is a child who's included, right? Struggling and uh very early on identified. Um it's not clear in the record, I don't think, but I'm I'm fairly certain there was an identification and eligibility before kindergarten, right? Yep. So um has a significant number of accommodations and supports for that gen ed placement in kindergarten. Those supports are expanded. The court weirdly seemed to get really hung up on um the number of accommodations, which I thought was kind of like odd.
SPEAKER_02Well, but also I loved it because at one point they were like, 17, I think they said, but they were like, not all of these are used. And I went, thank you. Thank you for everything. Because you and I have seen IEPs that it is a full page of accommodations.
SPEAKER_01Yeah.
SPEAKER_02And there there is not any way. Right. There's just and unless you truly have the most amazing team members, and I'm certain that there are ways, but in my head, I look at that and I get overwhelmed.
SPEAKER_00Sure. So And I think what the court, why it was fixated on this, and it said, well, there were not, and then there were 17. I think it's trying to show that there was an incremental movement. Like that the this was not a static IEP. The team was trying to make it work in Gen Ed. So that's kindergarten, that's first grade, that's second grade. And at that point, he's still showing like kindergarten level or even pre-K skills academically. Yep. And the teacher's looking at this saying, oh boy, um, this is starting to compound here, right? Other kids have these kind of prerequisite skills that allow them to build upon it. This this child does not. And it got more and more isolating. To borrow um Aaron's phrase from earlier, it was starting to become a classroom within a classroom because it was so different what this child required. Now the good news is sounds like a sweet kid. Like not disrupting the room. Yeah. Yeah. So this isn't that story. This is the story of a child who probably could have sat in the room and been okay until it wasn't anymore.
SPEAKER_02But I also love though that the sorry, I just interrupted you. I do I'm gonna continue over. That's okay. Uh I love though that the school was saying that's not okay for us. Right. We are not okay with that. We want to go ahead. This kid is not being educated just sitting in a room. Sure, they're not a behavior, they're not an issue. But we want to make sure they receive his he is receiving an education. And I think the point to me when I looked at the number of accommodations and the number of pivots this district did, it was to show all of the spots of trying to support him there. And then to have mom turn around and say, and I think the quote was that the school district ha it had not done everything that is humanly possible.
SPEAKER_00Yeah. That was just hurt. It did. So so that I I think that was toward the end of third grade in the school, uh, they're doing uh uh it seems like it was just the annual review meeting. And the school said, you know what, we think it's time to talk about and and their program was called AFL uh Academics for Life. Uh but but it was built on the unique learning system and was very much aimed at functional academic skills, life skills, that sort of thing, which is a heavy thing, I suppose, right, for a parent of a third grader to hear, hey, we want to kind of shift in this direction. Because it does feel like, oh wow, my my child's being set on a track. And this was definitely at least the record reflects that it was heavy on the parent.
SPEAKER_02Absolutely. She said, You've not done everything possible, but man, the school's response to that on the other side was uh wow, right? Because at least from my notes, they were like, Okay, look, listen, we'll give it l we need to have a 10-day recess. Whether that means the kid didn't come to school for 10 days, whether they just had the meeting waited 10 days, I don't know.
SPEAKER_00Oh, I think part of it was mom was having a really hard time. An ambulance was called for mom. Well, yeah. And we're not, you know, we not not to make a spectacle of mom, but like this was pretty intense.
SPEAKER_02It was, but I liked the recess aspect of it because it also, if I'm gonna skip over that part, right? Is to say that it allowed mom time, or at least offered mom time to go visit the classroom. Then when they had an IEEE, I mean they did all of the things to say, look, we get that it's a lot, we're complying with your requests, here's how we still think we are. At the end of the day, Texas is unlike Ohio and that they could implement a change in placement without parent consent, right?
SPEAKER_00Yeah.
SPEAKER_02So that's what they did, and then she files.
SPEAKER_00Yeah. And uh it it was a good outcome for the district at the hearing officer level. Yeah. Uh the hearing officer looked at it and said, Yeah, I and and really focused on that incremental movement. This was not a district that quickly said, Oh, this is what you need, this is where you go. Yep. They really tried to make it work in the gen ed setting over a course of years. Yeah. Right. And uh that same argument was very persuasive when the parent appealed it to federal court. Federal court also sided uh with the district, and it approached this the way we started off this episode, which is saying, well, there's kind of like two pieces here in their intention. Yeah. We have FAPE and we have LRE. And for FAPE in the Fifth Circuit, uh, and every circuit's gonna have something that speaks to this. And of course, we know that we also, um, all of them at this point are founded on Andrew F um and uh the Rowley standards. So uh the district, the Fifth Circuit looks at this and said, well, um, you know, FAPE, we're gonna measure this meaningful benefit by saying, well, is this program individualized for the child's needs based on assessments and the child's performance? Uh are the services coordinated in a collaborative manner delivered? Are there positive academic and non-academic benefits demonstrated? And importantly, is the program administered in the child's least restrictive environment? Which then opens up the discussion of, well, okay, what does that mean? And in that tension again. And in the Fifth Circuit, what they're looking at is um two basic points, two questions. Uh could the student be satisfactorily educated in the gen ed setting with supports, and was the student mainstream to the maximum extent appropriate? The court dives in a little bit. Hold on, hold on.
SPEAKER_02That one is not humanly possible?
SPEAKER_00No, it's not humanly possible.
SPEAKER_02Okay, my apologies.
SPEAKER_00I just mentioned that once.
SPEAKER_02Well, they didn't. Yeah, yeah, yeah.
SPEAKER_00Yeah, it's a long decision. I I I think that is, I want to come back to that in the practical points. Yes. Uh, because I think that's really important. Um, you know, looking a little more deeply at this um s whether the child could be satisfactorily educated, the in the Fifth Circuit, the court said we need to look at uh have steps been taken to try and accommodate the child in that setting? Uh will the child receive an educational benefit from regular education? Um, you know, what's the child's overall experience in that environment? And importantly, what effect does the handicap and this is the court's language here, handicapped child's presence have on the regular classroom environment. And that was really important, right? So speak to that. You mentioned earlier.
SPEAKER_02Well, there were there were two pieces to it. I'll I want to I will speak to it here in a second. I think what the court also saw very clearly and they focused on, there was no evidence in the record that showed that the student's current setting was appropriate. There was zero. I mean, of course, the school district wasn't going to have any, but there was nothing that the parent brought forward to say, no, no, no, this is an appropriate placement. So that is at least on those prongs, right? The court said you don't have anything here. And now to get to the second piece of it, where was I going? I lost my train of thought.
SPEAKER_00Um, I was asking you uh as far as um Sorry.
SPEAKER_02We're both gonna go there. Is this the the maximum extent appropriate piece of it? Or was the point?
SPEAKER_00Yeah, yeah. So we have the the court was looking at um Oh, the presence on the regular classroom environment.
SPEAKER_02There we go. Yeah. And so I knew I would get there eventually.
SPEAKER_00Sorry.
SPEAKER_02Sometimes my brain gets on that one and then you force me to go that way. And I lost track of it. What I thought was interesting in this case is that there was evidence on the record that the teacher said she, I believe, could not educate any of the other kids. During the time period she would get this student set up, going to answer a problem, going to answer a question. She would then check in on every other kid within that classroom, and then when she would come back, that student would still be on the same problem and would not have progressed any further than where they were. And the education that was being delivered then to all of the other students was detrimented.
SPEAKER_00Mm-hmm. Detrimentally impacted?
SPEAKER_02There we go. Detrimentally impacted. I was I'll make up a verb, whatever. Um, was impacted to such an extent that the whole class wasn't going forward at that point. And so that really weighed heavy for the court, it felt like.
SPEAKER_00Yeah. And the court acknowledged, kind, well-mannered, gets along with peers, all those things. Now we all know in the education world where that can go is the child kind of gets more and more aware and sensitive to and frustrated with that gap. But um, you know, this school didn't wait for that. And and so this class within a class, the court rejected it and said, No, what you've proposed, school, is going to be appropriate for this child.
SPEAKER_02Correct. And and I think with part of it, and maybe this will go eventually to some of the practical tip aspect, the court also focused heavily on the fact that none of the actions taken by the school were token gestures. They were genuine. They were, you know, this implementation with fidelity thing that we hear often, like they were meaningful and they made genuine attempts to work with this kid where the kid was in the general education setting. And that I think compounded with no evidence from anything else, the impact on the other kids in the classroom all brought the court to the decision at the end of the day that yes, a change in placement was appropriate. The school was proposing a change in placement that would have provided fate for this student.
SPEAKER_00Yep. Yeah. Well, so let's do that then. With the lessons from this case in mind, let's talk about some practical tips. And I think, you know, top of the list for me is of course, you know, being careful about how quickly we skip over placement options. And and I think that's different than saying, well, you always have to start in gen ed. I I don't think the law expects that. No. Uh there are some kids where you'd very quickly, from that initial evaluation, be like, ooh, we need something very different for this kid. But for a child, even like this, uh I I think it was just hugely impactful that it was a years long process with incremental steps.
SPEAKER_02Correct.
SPEAKER_00So kind of working through things, even if you have a pretty good idea based on your experience where things are headed. Working through those, building in supports, going from nine to seventeen accommodations. Documenting them. And documenting them.
SPEAKER_02Documenting all of them, right? When you are moving down to say, even documenting those services and sports in the IEP, as well as documenting why they're added or removed or changed in a prior written notice. Because all of that helps to at least explain to someone after the fact why decisions were made by a team to march out that continuum. I mean, if you're going to change a place on that continuum, adding in an a paraprofessional or an educational aide, adding in additional services and sports, there's reasoning behind that. Whereas educators, at least I found we aren't appropriately at times explaining our reasoning for doing that. That if we can explain it at the table, put it in a prior written notice, it helps get people in our mindset if there is a challenge later on.
SPEAKER_00And I think that language is important as you document that, documenting what you described earlier, the classroom within a classroom. And as things start to look like that, capturing that, how interactions with peers are starting to go away, the more this child is different and kind of isolated because just how much has been built in. And I think also being careful in the phrasing we use on things, this was not a child, it doesn't sound like where there was a delay or that we were going to close the gap. But this was a child where the gap was going to keep on growing. And in using the right language and documenting kind of the wrong language sometimes that a parent, or in this case, there was also an advocate, humanly possible. Humanly possible. I quote that stuff in a prior written notice because it really is is emphasizing that the school's on the right track as far as it's thinking in this compassionate, supportive, collaborative approach. And if a parent's maybe on the wrong track, just not understanding really what the law would expect, especially like disruptions to the other peers.
SPEAKER_02Trevor Burrus, Jr.: Well, and disruptions and helping to explain what exactly maybe the request from the parents would look like in real life, right? It goes to that point of you know explaining that classroom within a classroom. Sometimes we we have situations where we're requested, well, if you just modify it more, you didn't modify it enough. And if you modified it more, they'd be successful. Well, at what point, and I don't know the answer to this question, at what point is a modification a fundamental alteration of where you are? Right? And if we're in uh a high school US history class, you know, if we're still working with a student on I don't like how do we modify that curriculum if we're at a first grade reading level, there are probably ways to do that, and there are ways to push in and there are ways to support it. And there are also ways that are a fundamental alteration of what that curriculum really is and maybe what the expectation requirements are. And so where's the appropriate level it is that conversation to have at with the parents, with the IEP team at the table to explain what the request actually looks like in real life.
SPEAKER_00Yeah, and what does that mean as far as FAPE and LRE? Because are you really giving FAPE if that's where the gap is? Is it really the LRE if it's that big of a gap? So well, let's let's then take this and return to the caller. So when a student needs so much support that the gen ed teacher basically can't teach the rest of the class, it's time to talk about can it's actually pastime to be talking about the continuum of placements. And uh the law expects that a district can show those incremental steps. So to the extent that's happened, make sure to capture those, document those to the extent it hasn't happened, have a conversation, a collaborative conversation about what those steps could look like that are still keeping in mind that fundamental tension of FAPE and LRE. And in designing that, keeping in mind, as the Beaumont uh district did, what can we do to still keep elements of that interaction with peers, whether it's specials, lunch, recess, whatever it might be? The more you do that, hopefully it makes it more palatable for the parent. Um, and in any event, it definitely feeds into uh supporting the idea that this is a way that we can provide FAPE in the least restrictive environment that this child requires. Thank you for tuning in to On the Call. If you have found value in our discussion and think your educator colleagues would as well, please share this podcast through text, word of mouth, staff meetings, chats, and teachers launch. Your support is what drives this podcast.
SPEAKER_02We work to bring real life situations and practical tips to each episode. If you have a topic you would like to suggest or want to share your thoughts, please connect with us on social media or email us at podcast at nsbritain.com.
SPEAKER_00A quick note this podcast is intended to be used for general information only and is not legal advice. If you have a specific question, please consult an attorney.
SPEAKER_02We are looking forward to being on the call with you again soon.
