The Law and Inclusion

By Ebenstein, Barbara | The Exceptional Parent, September 1995 | Go to article overview

The Law and Inclusion

Ebenstein, Barbara, The Exceptional Parent

The Individuals with Disabilities Education Act (IDEA) encourages school districts to educate children with disabilities in regular classrooms. The IDEA uses the term "least restrictive environment," meaning that "to the maximum extent appropriate," children with disabilities should be educated with children who do not have disabilities, and that "special classes, separate schooling or other removal of children with disabilities from the regular educational environment, occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."

Unfortunately, this language leaves many questions unanswered: When is inclusion appropriate? What supplementary aids and services are reasonable in a cost-conscious school district? When can one conclude that inclusion cannot be achieved satisfactorily? And whose satisfaction are we talking about? Parents and school districts often disagree on these points.

When parents and

school districts disagree

Parents who do not agree with the school district regarding a childs evaluation, classroom placement or IEP (Individual Education Plan) can turn to legally-established due process procedures referred to as "administrative remedies." The first of these is an "impartial hearing," which is like a miniature trial in which both sides present witnesses and evidence, including reports of the child's past classroom experiences, to a hearing officer. The hearing officer acts as judge and renders a written decision.

Either side - the school district or the parents - appeal this decision to the review officer in the state's department of education. After reviewing the electronic or written record of the hearing, the evidence that was presented and the decision of the hearing officer, the state review officer will issue a written decision about the case.

This decision signals the end of "administrative remedies." Most grievances are resolved by this point. However, if the parents or representatives of the school district remain dissatisfied, they can seek judicial review of the case in the federal courts.

This process begins by filing the case in federal district court, which holds a full trial and renders a decision.

Next, either side may appeal to the federal circuit court for the region that includes their stak or U.S. territory (see sidebar, page 42). The circuit court will review the transcript of the district court trial, the evidence presented and the decision rendered. Lawyers for both sides submit written briefs (documents summarizing the issues and pertinent laws) and present oral arguments. After a decision is rendered, the case may be appealed to the U.S. Supreme Court, however, very few such cases are accepted for review.

Because the U.S. Supreme Court has not directly addressed the issue of inclusion, each federal circuit court must set its own criteria for determining when inclusion is appropriate. A circuit court decision sets a precedent to be followed in the states within the court's jurisdiction. Lower courts in jurisdictions where there has been no circuit court precedent are influenced by opinions from other jurisdictions.

To know the criteria a school district should use to determine whether inclusion is appropriate for a particular child, one must be familiar with the precedent followed by the federal circuit court in that jurisdiction. This is important information for parents to have - whether they want their child included or are advocating for a more segregated placement.

"Mainstreaming" and academics

In 1980, the U.S. Supreme Court reviewed an IDEA case brought by the parents of Amy Rowley, an eight-year-old who was deaf, and who attended her local elementary school. Amy's parents wanted a sign language interpreter in Amy's classroom. Although inclusion was not at issue in this case, the Courts decision stated that a child with a disability, who was being educated in a regular classroom, would be expected to work on grade level and progress from grade to grade with the rest of the class. …

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