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Evidence Bears Out Congressional Intent for Students to be Educated with Peers in Least Restrictive Environment (LRE)

Posted By Administration, Tuesday, July 5, 2016

The AASA, American Association of School Administrators, has again taken aim at students with disabilities in its blog post, Reclaiming the LRE Debate from the Courts.  The Individuals with Disabilities Education Act (IDEA) requires students with disabilities to be educated in the least restrictive environment (LRE) which enables students with disabilities to be educated alongside their peers to the maximum extent appropriate.  The AASA proposes that schools more frequently segregate students by limiting a student’s right to LRE and turning back the clock 40 years to the time when students with disabilities were routinely segregated from their peers and educated in separate classrooms, which were often “babysitting” programs that provided minimal to no educational benefit. 

The AASA implies that segregation is to the benefit of the student with disabilities, but abundant quantitative and qualitative research demonstrates that students with disabilities do achieve considerable educational benefit from placement in general education classes with supplementary aids and services.  Further, including students with disabilities in general education benefits students without disabilities.  Research shows that time spent with non-disabled peers not only benefits students socially and connects them with their community but also enhances academic achievement for students with disabilities. 

Two landmark cases, Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C. 1972) and Pennsylvania Ass’n for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (E.D. Pa. 1971) and 343 F. Supp. 279 (1972) (PARC), set forth the foundational understanding of the Fourteenth Amendment principles on which the IDEA ultimately rests.  These foundational cases were specifically referenced in the legislative history of, and played a significant role in the passage of, the Education for All Handicapped Children Act of 1975, which is the predecessor of IDEA.  Honig, 484 U.S. at 309, 108 S.Ct. at 596 (citing S. REP. 94-168 (1975), 6, 1975 U.S.C.C.A.N. 1425, 1430).  These principles are so deeply embedded in present case law that many courts often overlook the need to  make specific reference to them in reaching decisions over more recent controversies.  The principles, however, bear restating as they provide the necessary context and foundation on which to view LRE protections.

First, “the right to an education, once given, is a fundamental right; therefore, the defendants must show a compelling state interest in order to lawfully exclude [disabled] children.” PARC, 343 F.Supp. at 283, n.8. Second, “[s]uch an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Mills, 348 F.Supp. at 874 (quoting Brown v. Board of Education, 347 US. 483, 74 S.Ct. 686, 691 (1954)).  

When Congress amended the IDEA in 1997, it continued to link its authority and intent to the Fourteenth Amendment noting its desire to “restate that the ‘right to equal educational opportunities’ is inherent in the equal protection clause of the 14th Amendment of the U.S. Constitution,” and that the IDEA is founded in and secured by the 14th Amendment.” S. Rep. No. 104-275, at 31 (1996). Clearly, the IDEA is a civil rights act, implementing the equal protection clause of the Fourteenth Amendment and it places an affirmative obligation upon the States to provide children with disabilities a free and appropriate education. 

Congress expressed a strong preference in favor of educating children with disabilities in an inclusive setting and requires States accepting IDEA funds to educate children in the LRE to the maximum extent appropriate.  Appropriate in this context means the least restrictive setting available that will provide the student with FAPE.  Simply put, States that accept IDEA funding do not face the question of whether a student should be educated in the least restrictive environment.  Rather, Congress has required States and school districts to determine how a child can be educated in the LRE. Thus, school districts must, as a preliminary matter in every case, determine whether the child can be provided with an appropriate education in the regular education classroom with supplementary aids and services. See Department of Education v. Katherine D., 727 F.2d 809, 815 (9th Cir. 1983). Furthermore, the United States Supreme Court in Olmstead v. L.C. requires states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs.  The Court said,  "Unjustified isolation, we hold, is properly regarded as discrimination based on disability. " 527 U.S. 581, 596 (1999). 

Ms. Bon’s reference to an unpublished, non-precedential case J.H. ex rel. A.H. and S.H. v. Fort Bend Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012) reveals the depths to which she strives to make her assertions appear to have value.  In fact, not only do her assertions lack value, the case referenced by Ms. Bon confirms that a student may derive nonacademic benefit from interacting with [nondisabled] peers in mainstream classes, contrary to her assertion.

The IDEA is not an expiring authorization and therefore Congress does not need to reauthorize the statute.   If Congress decides to amend the IDEA, however, efforts need to focus on strengthening parent and student rights and strategies to ensure states are fulfilling obligations under the law.   Policy dialogue must be based on evidence based strategy proven to improve student outcomes; not on misguided opinions of individuals trying to allow administrators to shirk responsibility for providing meaningful education to all students under their care.   There are ample school administrators whose efforts embody the spirt of the IDEA and we encourage AASA to stop attacking parent and student rights and spend their time and resources towards amplifying successful and positive examples of supporting students with disabilities to succeed and prosper.

Susan Bon’s AASA Blog Post this week is offensive to parents and students and utterly fails to provide clarity on one of the most important procedural and substantive due process right contained in the IDEA since its inception in 1975.  In fact, Ms. Bon’s use of the offensive term “mentally retarded” indicates both her insensitivity to the community served by the IDEA and her failure to provide insightful commentary on LRE.

For over 40 years Congress has consistently made it an overall priority that a student with a disability is to be educated in the regular classroom to the maximum extent possible. 

Tags:  Individualized Education Program  Least Restrictive Environment  Students with Disabilities 

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