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Education - Exceptional Students. Furgasa v. Toronto District School Board
In Furgasa v. Toronto District School Board (Ont Div Ct, 2026) the Ontario Divisional Court allowed a JR, this brought against decisions of the Ontario Special Education Tribunal (OSET) and the HRTO addressing education services provided to a student categorized by the Board as 'exceptional', and who was 'living with autism'.
These extracts summarizes the case, which largely revolves around the degree of support provided to the subject student:[5] The Applicant applies for judicial review of (a) a decision of the Ontario Special Education Tribunal (the “OSET”) dated June 16, 2023, reported at 2023 ONSET 2 (CanLII), and (b) a decision of the Human Rights Tribunal of Ontario (the “HRTO”) dated February 23, 2024, reported at 2024 HRTO 274 (CanLII).[2] The net result of these decisions is:(a) K.S. was “identified” as “exceptional” and “placed” in a regular classroom in a TDSB high school on the basis of the OSET’s determination that such a placement was agreed between the parties. However, the Applicant’s agreement to this “placement” was predicated on K.S. receiving 1:1 support in the classroom and for other aspects of his participation in school life. The OSET found that 1:1 support is not part of K.S.’s “placement” but is a matter of “programs” or “services” provided to K.S., matters not within the jurisdiction of the OSET.
(b) The TDSB takes the position that it has a blanket practice of not providing 1:1 support for students within regular secondary school classrooms. The TDSB placed K.S. in a regular classroom in accordance with the OSET direction, but did not provide K.S. with 1:1 support.
(c) The Applicant then brought this application for judicial review of the OSET decision.
(d) The Applicant had disputed these issues previously before the OSET (leading to OSET decisions in 2019 and 2022) to the same effect: the OSET decided it had no jurisdiction to direct 1:1 support for K.S. as part of his placement. The Applicant commenced proceedings before the HRTO for failure to accommodate K.S. in the school system, but these proceedings were stayed pending completion of serial OSET proceedings.
(e) When OSET proceedings were dismissed for lack of jurisdiction, the HRTO complaints were revived and then dismissed summarily by the HRTO because the complaints had no reasonable prospect of success. [6] The net result has been unsatisfactory. Whatever might be the appropriate disposition of K.S.’s claims, being placed in a regular classroom without the required supports for that placement, and without effective recourse for the resulting problems, is a failure of the system. The root causes of this systemic failure was clear in oral argument before us: none of HRTO, OSET and TDSB had a coherent account of how these processes ought to work as an overall framework to result in timely, efficient adjudication of important conflicts respecting special education of exceptional students in public school systems.
[7] The tribunals below, and this court on review of their decisions, are constrained by the statutory framework that applies to identifying exceptionalities, determining “placements” for exceptional students, and providing necessary supports to students within their placements. This statutory framework should be interpreted and applied in a manner that is faithful to the text of the statutory instruments to provide effective recourse for families of students such as K.S., while at the same time preserving the ability of school officials to manage their resources effectively to deliver quality educational services to all students at the school. For this to work effectively, parents and students must have effective recourse to challenge decisions which they dispute. At paras 93-117 the court reviews prior OSET jurisprudence which it finds 'illusory' and 'confusing' when applied by it - and by related agencies - for purposes of the present case:[116] No authority is offered for the conclusion that the OSET cannot order a placement “that does not exist” in the TDSB’s SEP. That finding is contrary to the OSET’s prior jurisprudence (see, for example, M.S. v. Ottawa District School Board, 2011 ONSET 4, at paras. 135-136). It also renders the definition of “placement” relied upon by the OSET as one devised by the school board; that cannot be right: “placement” is a term in the Education Act, and its definition is not subject to the plans and policies of school boards. Indeed, by this logic, 1:1 support in a regular class is a “placement” in elementary schools – but not in secondary schools – not because of a substantive decision by OSET, or the language of the Act or the Regulations, but because of a choice made by the TDSB.
[117] The OSET’s earlier decisions denying jurisdiction rested entirely on the distinction between “placement” and “programs and services”. No legal justification is provided by the OSET for its conclusion that “placements” are limited to those a board chooses to offer. The OSET is correct in finding that the HRTO could deal with this issue but provides no explanation as to why such a question – which lies at the core of special education of exceptional students – should not be made by the OSET – the specialized tribunal established to decide special education placement issues. Here, the court is further critical of the several agencies involved in the overall regime wrt their explanation of the review routes to the public:(ii) Routes of Appeal and Review Must Be Clear to Parents
[118] The SEAB, the OSET and the school board itself, should be clear and consistent with parents about their rights of recourse from decisions with which they disagree. These are public bodies, with important decision-making authority. Parents are often self-represented, and where they are not, the costs of unwieldy litigation are not easily managed by many parents: routes of appeal or review should be clear, and parents should be advised of them.
[119] I appreciate that an overly litigious approach to disputes over special education would be undesirable. A focus on consultation and cooperative decision-making is inherent in the IPRC and IEP processes.
[120] Not all situations, however, will be resolved through consultation and cooperation, and where that happens, decisions must be made. As reflected in the Regulations, these are time-sensitive and recurring processes: the parties cannot be disputing issues for years while an exceptional student’s future lies in the balance.
[121] As reflected in the SEAB Report, the Applicant had a good, arguable case that K.S. needed to be in a regular class, and that K.S. needed 1:1 support in the classroom. Apart from the SEAB Report, which was rejected by the board, no principled decision on the merits has been provided to the Applicant explaining why K.S. was not provided with the 1:1 support he needed in the regular classroom. And no practical avenue was explained to the Applicant as to how he could challenge the decisions made not to provide K.S. with the support he needed to secure an education in a regular classroom. This has been a profound failure of justice, and responsibility for it lies with the OSET (for failing to identify the issue as within its jurisdiction and then to decide it), with the TDSB by taking positions that, in sum, would deny the Applicant the opportunity of having his claim decided on the merits, and with the HRTO for wrongly dismissing the Applicant’s claims as unworthy of the adjudicative process.
[122] Routes of appeal and review may also assist the OSET in deciding the question of what is included in a “placement” and what is a program or service that is not included in a student’s “placement”. The OSET is supposed to be a specialized tribunal that provides the final word on issues respecting an exceptional student’s identification and placement. Construing “placement” so narrowly as to exclude all consideration of how the placement may work for a student would have the effect of allocating review or appeal responsibility for making crucial special education decisions to the HRTO and/or to this court. It should surely be a matter of common sense that the OSET, as a specialized tribunal, should be better equipped to deal with an issue, for example, of whether provision of 1:1 support in a regular class is integral to an exceptional student’s placement in the regular class. Next the court, given it's harsh assessment of HRTO behaviour in this case [ie. "nothing short of shocking"], specifically addresses it's role in the future of special education disputes:(iii) The Role of the HRTO in Special Education Disputes
[123] I conclude that the OSET should have taken jurisdiction over the Applicant’s appeal and decided it on the merits. Whatever practical, functional definition may be developed by the OSET for the term “placement”, it would have to include the position advanced by the Applicant in this case: it would be for the OSET to decide that claim on the merits, but if it found the facts to be as the SEAB Report found them, then the Applicant might well succeed in the OSET appeal.
[124] This said, the summary dismissal of the Applicant’s human rights complaint in this case was nothing short of shocking. The Applicant’s position – set out in detail in his Complaint to the HRTO – was that K.S. needed placement in a Regular Class with 1:1 support. He alleged that this had been denied to K.S. by the board, with a resulting failure to provide “appropriate” special education programs and services to K.S., denying him his right to receive an education by reason of his disabilities.
[125] The HRTO trivialized this claim, on summary disposition, as based solely on parental preferences, and found, without an evidentiary record, that the services and programs offered to K.S. by the board were suitable and appropriate. One need only read the SEAB Report to see that the Applicant’s allegations were at least arguable. One need only read the OSET Decision to see that the TDSB and the OSET had concluded that the proper place for the dispute to be decided was the HRTO.
[126] The trivialization of the Applicant’s allegations was then followed by a misapplication of the HRTO’s summary disposition jurisprudence. There is a range of cases, disposed of by the HRTO (including cases upheld by this court) where a claimant was alleging unfair, or even unlawful treatment, without providing a nexus between that treatment and a protected ground under the Human Rights Code. That line of cases had no application to this matter. Here, the claims asserted by the Applicant were based on a denial of support to address K.S.’s disabilities: a ground protected under the Code. The legal argument for the Applicant was quite straightforward: K.S. was entitled to receive an education from the TDSB, and as a result of the TDSB’s failure to accommodate K.S.’s disabilities, K.S. was denied the education to which he was entitled. The TDSB’s motives had nothing to do with the claim: the TDSB was required to accommodate K.S.’s disabilities to the point of undue hardship, and the human rights claims allege that it did not.
[127] It is clear that the OSET’s jurisdiction is limited to questions of identification and placement. However the OSET may come to understand the boundaries of this jurisdiction, there will remain decisions made about programs and services for exceptional students that are not within the OSET’s jurisdiction. As the HRTO has, itself, found, these questions could form a claim before the HRTO (Schafer v. Toronto District School Board, 2009 HRTO 785, at paras. 35‑40):[35] In the current situation, the applicant does not challenge the identification of his exceptionality as learning disabled and language impaired. Nor does he challenge his placement in a regular classroom with specific identified supports. Rather, he is asserting either that the identified supports were not reflected in the Individual Education Plan used by the respondent and/or were not actually delivered by the respondent such that, practically speaking, he experienced discrimination.
[36] I specifically questioned the respondent whether the applicant has a right, under the Education Act, to appeal the supports identified in the Individual Education Plan or to appeal whether the supports set out in either the IEP or the IRPC were actually being delivered by the respondent. The respondent stated that the applicant had no right to appeal those matters.
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[39] In my view, in light of factual disputes before me, some of which fall clearly within my jurisdiction and which are inextricably linked to the facts which may or may not fall within the jurisdiction of the SET, I am satisfied that I have the jurisdiction to undertake the factual inquiry to determine whether the applicant’s rights have been infringed under the Code.
[40] If, after hearing the evidence and argument, the applicant asserts facts or arguments that could have been appealed to the SET, nothing in this decision is intended to preclude the respondent from arguing that those factual determinations or issues fall within the exclusive jurisdiction of the SET. [128] The claims asserted by the Applicant in this case are clearly arguable. On the logic in Schafer, those claims “fall clearly within [the HRTO’s] jurisdiction.” The facts alleged in the complaint – if established as true – would ground a finding that the TDSB discriminated against K.S. The HRTO summary dismissal decision to the contrary is unreasonable.
(iv) Reviewable Decisions and the Principle of Prematurity
(a) General Principles
[129] As may be seen from this case, the structure of dispute resolution of special education issues is somewhat opaque. It should not be. The court concludes importantly:(b) Application of these Principles in the Context of Special Education
[136] As may be seen from my above review of the statutory and regulatory framework, there are multiple processes and multiple decisions that may take place in respect to an exceptional student. First there is the IPRC process. If, at the end of that process, a parent is dissatisfied, they may bring the issues to the SEAB. The SEAB’s decision is, however, a “recommendation” to the school board, which may, or may not, accept it. The school board then “decides” the question – in the instant case, the “placement” for K.S.
[137] If the student’s parent disputes the school board’s decision on “placement”, an appeal lies to the OSET, which may decide the issue of “placement”, but which may not decide issues of “programs” or “services”.
[138] Once the “placement” is established, it is then for the Principal to establish the IEP, which includes details of programs and/or services.
[139] There is no right of appeal from the decision of the school board, aside from the limited right of appeal to the OSET. There is no right of appeal from the decision of the OSET. There is no right of appeal from a Principal’s decision respecting an IEP.
[140] These processes are undertaken on an annual basis for exceptional students. The decisions that result are supposed to apply to the upcoming academic year.
[141] To this list could be added the TDSB’s SEP. If, as found by the OSET, that tribunal is limited to placements set out in the SEP, then the decision not to include 1:1 support in regular classes in secondary school would likely have the status of a “decision” reviewable in this court, whether as a challenge to the TDSB’s SEP, or the Minister’s approval of that SEP.
[142] To the extent that the OSET does not have jurisdiction over a dispute, it appears that a parent has no recourse other than an application for judicial review to this court or a claim to the HRTO. Thus, the narrower the construction that is placed upon the meaning of the word “placement”, the broader and more material the range of disputes that should be brought directly to this court, from the decisions of school boards and principals, without the benefit of Ontario’s specialized tribunal established to finally decide special education issues.
[143] The adage “be careful what you ask for” comes to mind. If the structure of administrative decision-making is such that recourse is to this court for a question as important as whether K.S. should be provided with 1:1 support in a regular class, then this must be made clear to parents.
[144] I would suggest, as well, that this concern should also inform the OSET’s consideration of its own jurisdiction: that which is not properly before it would then be a final decision that had run its course in the administrative process that could be challenged by judicial review.
[145] Finally, I would note that the paucity of OSET’s jurisprudence generally as reflected in its available jurisprudential record. Attached as Appendix “B” to this decision is a list of every decision of the OSET reported on CanLII between 2007-2025. There are a total of 37 reported decisions of the OSET. Four of these involve K.S. The 37 decisions appear to be in respect to 23 students (there are multiple instances of more than one decision in a single case). Many of the reported decisions are procedural or supplementary rulings (12 of the 37 decisions). In 10 of the cases, the matter was dismissed on jurisdictional grounds, and in another case, it was dismissed as moot. Thus, in the aggregate, 25 of the 37 decisions were either procedural or supplementary rulings, or summary dismissal orders on jurisdictional grounds. Of the 12 remaining reported decisions, it appears that only two cases are decisions on the merits of a placement issue where identification was not in issue.
[146] This summary of the OSET’s decisions in the past 18 years is superficial. I do not take much from it. But I would observe that it might be a basis for some reflection: Ontario has established and resourced a specialized tribunal to deal with special education issues. 23 students over 18 years have had recourse to this tribunal, and it appears that decisions on the merits after a hearing have been rendered only 12 times. Perhaps this is because the “system” works so well that there is little business for such a specialized tribunal. But perhaps the unduly restrictive understanding the tribunal has developed of its jurisdiction is also an explanation.
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Disposition
[163] I would conclude that the OSET’s decision finding it had no jurisdiction was unreasonable because it failed to state and apply any definition of the word “placement”. I would find that the functional understanding of the word “placement” used by the OSET in its decision is unduly restrictive. I would not otherwise define the word “placement” out of deference to the choice the Legislature has made that the OSET decide questions respecting the education of exceptional students.
[164] I would also find that the OSET’s decision that the TDSB does not offer 1:1 assistance in secondary schools for exceptional students with autism is unreasonable for failing to provide adequate reasons for that finding, both in terms of the facts upon which that finding was based, and in respect to the legal principle upon which that conclusion rests. As I have explained, there are strong grounds to conclude that such a finding could not be sustained on either the facts or the law.
[165] I would conclude that the HRTO’s dismissal of the Applicant’s complaints was substantively unreasonable, for the reasons I have given.
[166] For these reasons, the applications for judicial review are both allowed.
[167] The OSET decision is quashed but is not remitted back to the OSET because the academic years in issue have long ended. In any future processes respecting identification and placement of K.S., those processes shall be conducted in accordance with these reasons.
[168] THE HRTO decision is quashed and the complaints are remitted back to the HRTO for determination of the Applicant’s claims. In these HRTO proceedings, the Applicant shall be entitled to amend his complaint(s) to include claims arising from failure of the TDSB to accommodate K.S. up to the present time. . Furgasa v. Toronto District School Board
In Furgasa v. Toronto District School Board (Ont Div Ct, 2026) the Ontario Divisional Court allowed a JR, this brought against decisions of the Ontario Special Education Tribunal (OSET) and the HRTO addressing education services provided to a student categorized by the Board as 'exceptional', and who was 'living with autism'.
Here the court considered Education Act law respecting 'exceptional' students:Statutory Framework
(i) General Framework: the Education Act
[63] The Education Act provides for appropriate special education programs and special education services to be provided to students defined as exceptional. Subsection 1(1) of the Education Act defines “exceptional pupil” as follows:“exceptional pupil” means a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program[20] by a committee, established under subparagraph iii of paragraph 5 of subsection 11(1), of the board,
(a) of which the pupil is a resident pupil,
(b) that admits or enrols the pupil other than pursuant to an agreement with another board for the provision of education, or
(c) to which the cost of education in respect of the pupil is payable by the Minister; [64] There is no definition of “placement” or “special education placement” in the Act. “Special education programs” and “special education services” are defined in s. 1(1) of the Act as follows:“special education program” means, in respect of an exceptional pupil, an educational program that is based on and modified by the results of continuous assessment and evaluation and that includes a plan containing specific objectives and an outline of educational services that meets the needs of the exceptional pupil;
“special education services” means facilities and resources, including support personnel and equipment, necessary for developing and implementing a special education program; [65] Subsection 8(3) of the Act provides:The Minister shall ensure that all exceptional children in Ontario have available to them, in accordance with this Act and the regulations, appropriate special education programs and special education services without payment of fees by parents or guardians resident in Ontario, and shall provide for the parents or guardians to appeal the appropriateness of the special education placement, and for these purposes the Minister shall,
(a) require school boards to implement procedures for early and ongoing identification of the learning abilities and needs of pupils, and shall prescribe standards in accordance with which such procedures be implemented; and
(b) in respect of special education programs and services, define exceptionalities of pupils, and prescribe classes, groups or categories of exceptional pupils, and require boards to employ such definitions or use such prescriptions as established under this clause. [66] Subsection 11(1) of the Act provides:Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulations in respect of schools or classes established under this Act ...
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5. governing the provision, establishment, organization and administration of,
i. special education programs,
ii. special education services, and
iii. committees to identify exceptional pupils and to make and review placements of exceptional pupils. [67] Thus, the Minister shall “ensure” that exceptional children, such as K.S., “have available… appropriate special education programs and special education services.”
[68] There is no definition in the Act for the term “placement” of exceptional students. From the definition of “exceptional student” it is clear that “placement” of an “exceptional student” is “in a special education program”. By definition, quoted above, “special education services” are provided within “special education programs” into which “exceptional students” are “placed” – a “special education program” includes an “outline of special education services”. While the precise meaning of “placement” is undefined in the statutory scheme, it is clear from the Act – which is the controlling instrument – that “placement” is not a hermetically distinct concept from “programs” and “services” – “placements” are in “programs” through which “services” are delivered – and the Minister’s obligation – set out in the Act – is to “ensure” that “appropriate… special education programs and special education services” are “available” to “exceptional students”. Put another way, the concepts of “placement”, “programs” and “services” are more akin to nesting dolls than distinct and separate categories.
[69] This reading is reinforced by the terms of s. 8(3). It provides that “exceptional students” are entitled to appropriate special education “programs” and “services” and requires the Minister to provide an appeal of “the appropriateness of the special education placement.” The word “placement” here can only refer to the appropriate “programs” and “services” the Minister is to ensure are available for “exceptional students”.
[70] On any reasonable reading of these Education Act provisions, “placement” includes both “programs” and “services”.
(ii) O. Reg. 181/98: Identification and Placement of Exceptional Pupils
[71] Ontario Regulation 181/98 creates “special education identification, placement and review committees”, commonly known as “IPRCs”.
[72] O. Reg. 181/98 refers to “placement decisions” (ss. 6, 20, 25, 31). Where a pupil is identified as “exceptional” and a “special education placement” is “implemented” by the school board for that student, the Regulation provides that an “individual education plan” is to be developed for the student (an “IEP”). Subsection 6(3) of the Regulation provides that the IEP “must include,”(a) specific educational expectations for the pupil;
(b) an outline of the special education program and services to be received by the pupil; and
(c) a statement of the methods by which the pupil’s progress will be reviewed. [73] Subsection 6(6) of the Regulation provides that the school principal is responsible for “developing” the IEP, during the course of which they “shall”(a) consult with the parent and, where the pupil is 16 years of age or older, the pupil; and
(b) take into consideration any recommendations made by the committee [the IPRC] or the Special Education Tribunal, as the case may be, regarding special education programs or special education services. [74] Subsection 6(8) of the Regulation provides that within 30 school days after placement of the pupil in the program, the principal shall ensure that the plan is completed and a copy of it sent to a parent of the pupil and, where the pupil is 16 years of age or older, the pupil. Section 9 of the Regulation provides:(1) In accordance with requirements under the Education Act, no pupil is to be denied an education program pending a meeting or decision under this Regulation.
(2) Where an education program is provided to a pupil pending a meeting or decision under this Regulation,
(a) the program must be appropriate to the pupil’s apparent strengths and needs;
(b) the placement for the program must be consistent with the principles underlying section 17; and
(c) appropriate education services must be provided to meet the pupil’s apparent needs. [75] Section 16 of the Regulation provides:(1) The committee may discuss any proposal for special education services or special education programs and shall do so at the request of a parent or a pupil who is 16 years of age or older.
(2) The committee may make recommendations regarding special education programs and special education services.
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(4) Despite subsections (1) to (3), the committee shall not make decisions about special education services or special education programs. [76] Section 17 of the Regulation provides:(1) When making a placement decision on a referral under section 14, the committee shall, before considering the option of placement in a special education class, consider whether placement in a regular class, with appropriate special education services,
(a) would meet the pupil’s needs; and
(b) is consistent with parental preferences.
(2) If, after considering all of the information obtained by it or submitted to it under section 15 that it considers relevant, the committee is satisfied that placement in a regular class would meet the pupil’s needs and is consistent with parental preferences, the committee shall decide in favour of placement in a regular class. [77] Subsection 20(1) of the Regulation provides:A board shall implement a placement decision made by a committee under this Part when one of the following two events occurs:
1. A parent of the pupil consents in writing to the placement.
2. The time period provided in subsection 26(2) for filing a notice of appeal from the decision expires without a notice of appeal being filed. [78] Subsection 26(1) of the Regulation provides for appeals to a SEAB in respect of:(a) a committee decision under Part IV or V that the pupil is an exceptional pupil;
(b) a committee decision under Part IV or V that the pupil is not an exceptional pupil; or
(c) a committee decision under Part IV or V on placement of the pupil. [79] Subsection 28(6) of the Regulation provides:Where the special education appeal board is satisfied that the opinions, views and information that bear on the appeal have been sufficiently presented to it, the special education appeal board shall end the meeting and, within three days of ending the meeting, shall,
(a) agree with the committee and recommend that its decisions be implemented; or
(b) disagree with the committee and make a recommendation to the board about the pupil’s identification, placement or both. [80] Section 30 of the Regulation provides:(1) Within 30 days of receiving the special education appeal board’s written statement, the board shall consider the special education appeal board’s recommendations, shall decide what action to take with respect to the pupil and shall give notice in writing of the decision to each of the persons described in subsection 29(1).
(2) In deciding what action to take with respect to a pupil, the board is not limited to the actions that the special education appeal board recommended or could have recommended.
(3) Notice to a parent under subsection (1) shall include an explanation of the further right of appeal provided by section 57 of the Act. [81] Section 57 of the Education Act establishes the OSET. Subsections (3) to (5) of the Act provide:(3) Where a parent or guardian of a pupil has exhausted all rights of appeal under the regulations in respect of the identification or placement of the pupil as an exceptional pupil and is dissatisfied with the decision in respect of the identification or placement, the parent or guardian may appeal to a Special Education Tribunal for a hearing in respect of the identification or placement.
(4) The Special Education Tribunal shall hear the appeal and may,
(a) dismiss the appeal; or
(b) grant the appeal and make such order as it considers necessary with respect to the identification or placement.
(5) The decision of the Special Education Tribunal is final and binding on the parties to the decision. [82] The interpretive difficulty in this case arises from the language of s. 16(1) which provides that the IPRC shall not make decisions about special education services or special education programs. Parents are entitled to put program and service issues before the IPRC, and the IPRC may make recommendations about them, but the IPRC may not decide such issues.
[83] This language invites a categorical distinction of “placement” from “programs” and “services”, since “placement” may be decided and “programs and services” may not be. However, the interpretive task must take as its starting point the Act, not the Regulation, since the Regulation is subordinate legislation to the Act: Toronto District School Board v. Ontario, 2021 ONSC 4348 (Div. Ct.). “Placement” is in a “program” in which “services” are delivered; “programs” and “services” that are fundamental to the “placement” would thus seem to be part of an exceptional student’s “placement”.
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