as a consideration, but not a mandatory requirement, in placing a disabled child.
This reading of the regulations and commentary is consistent with the caselaw. The Third Circuit recently explained that the federal regulations create a "presumption in favor of placing the child, if possible, in the neighborhood school," but that "if that is not feasible," the child should be placed "as close to home as possible," and it cited as authority Barnett v. Fairfax County Sch. Bd., 927 F.2d 146 (4th Cir.) (per curiam), cert. denied, 502 U.S. 859, 116 L. Ed. 2d 138, 112 S. Ct. 175 (1991). See Oberti v. Board of Educ., 995 F.2d 1204, 1224 n.31 (3d Cir. 1993). In Barnett, the Fourth Circuit interpreted the regulations and commentary to mean that geographical proximity is not an "absolute obligation," but "one factor" that a school district must take into account when placing a disabled child. See Barnett, 927 F.2d at 153. Another factor that the school district may take into account is the impact a proposed placement would have on limited educational and financial resources. See id. at 154. The Fourth Circuit cited the requirement under 20 U.S.C. § 1412(3) that the states set priorities in the provision of free appropriate public education as evidence that "Congress intended the states to balance the competing interests of economic necessity, on the one hand, and the special needs of a handicapped child, on the other, when making education placement decisions." Id. Although financial considerations certainly should not be the sole criterion, neither should school districts operate as "if given access to unlimited funds." See id. Thus, the Fourth Circuit concluded in the case before it that the school district complied with the IDEA by providing a deaf student with a "cued speech" program in a high school that was 5 miles farther away than the student's local high school. The Fourth Circuit found it sufficient that the school district established a centralized "cued speech" program for 78 deaf students in one high school because creation of such a resource-intensive program in each of the students' base schools would place too great a strain on finite resources. See id. at 153-54.
Courts of appeals in other circuits have reached similar conclusions. See, e.g., Flour Bluff Independent Sch. Dist. v. Katherine M., 91 F.3d 689, 693-95 (5th Cir. 1996) (approving placement in a school 17 miles away from the child's home, 8 miles farther from her base school, in light of scarce educational resources and limited financial means), cert. denied, 1997 U.S. LEXIS 734, 136 L. Ed. 2d 836, 65 U.S.L.W. 3568 (U.S. Nov. 25, 1996) (No. 96-826); Poolaw ex rel. Poolaw v. Bishop, 67 F.3d 830, 837 (9th Cir. 1995) (approving placement of a deaf child in a school located 280 miles away from the child's home because it was the closest school available that provided the intensive instruction in American Sign Language required by the child's IEP); Murray v. Montrose County Sch. Dist. RE-1J, 51 F.3d 921, 928-29 (10th Cir.) (concluding that the regulations create "at most a preference for education in the neighborhood school" and approving placement in a school ten miles away from the child's neighborhood school), cert. denied, 133 L. Ed. 2d 198, 116 S. Ct. 278 (1995); Schuldt ex rel. Schuldt v. Mankato Independent Sch. Dist. No. 77, 937 F.2d 1357, 1361-63 (8th Cir. 1991) (approving placement in a non-neighborhood school rather than requiring physical modification of the neighborhood school to accommodate the child's disability), cert. denied, 502 U.S. 1059, 117 L. Ed. 2d 108, 112 S. Ct. 937 (1992).
To provide the Life Skills Support program within the Cheltenham school district, Cheltenham would have to construct a new classroom at considerable expense and hire a new teacher as well as possibly a new teacher's aide. Furthermore, Cheltenham would have difficulty duplicating the quality of the existing Billet IU program and its related services, given the greater resources, experience, and expertise that the MCIU can provide. Moreover, it is possible that Joel would be the only student, or at best one of two students, in a Life Skills Support program conducted at Wyncote Elementary School, whereas he would be one of twelve students if placed in the Billet IU program. Finally, the Billet IU program is the closest existing Life Skills Support program available to Joel and is located only ten miles away. Given these considerations, placing Joel in the existing Life Skills Support program at Crooked Billet Elementary School is an appropriate placement under the IDEA and its accompanying regulations, and Cheltenham is therefore not required to create the Life Skills Support program within its own district. An order will be entered accordingly.
AND NOW, this 24th day of December, 1996, IT IS ORDERED that:
(1) the Order of the Special Education Due Process Appeals Review Panel of April 28, 1996 is vacated insofar as it ordered the Cheltenham School District to provide the Life Skills Support program within its own school district;
(2) the Order of Special Education Hearing Officer Vernard M.W. Trent of March 10, 1996 is reinstated insofar as it permitted placement of Joel in the Life Skills Support program operated by the Montgomery County Intermediate Unit; and
(3) the decision of the Special Education Due Process Appeals Review Panel of April 28, 1996 is affirmed in all other respects.
Anita B. Brody, J.