The Mainstreaming Requirement of the Individuals with Disabilities Education Act in the Context of Autistic Spectrum Disorders

By McDonough, Conor B. | Fordham Urban Law Journal, October 2008 | Go to article overview

The Mainstreaming Requirement of the Individuals with Disabilities Education Act in the Context of Autistic Spectrum Disorders


McDonough, Conor B., Fordham Urban Law Journal


Introduction

I. Autism, Methods of Diagnosis, and Treatment
     A. Background on Autistic Spectrum Disorders
     B. Diagnosing Autistic Spectrum Disorders in
        Children
     C. Treatments for Children with Autism
        1. Applied Behavioral Analysis
        2. Treatment and Education of Autistic and
           Related Communication Handicapped
           Children ("TEACCH") Therapy
        3. Picture Exchange Communication System
           ("PECS") teaching
II. The IDEA, "Mainstreaming," and Judicial Tests of
      Compliance with the "Mainstreaming" Requirement
      A. A Brief History of the Development of the
         IDEA
      B. The Least Restrictive Environment: A
         Congressional Preference for Mainstreaming
      C. The Circuit Tests for Compliance with
         Mainstreaming Requirement
         1. Roncker v. Walter
         2. Daniel R.R
         3. Holland
         4. Summary of the Circuit Tests
III. Evaluation of the Circuit Tests and of the IDEA
      Mainstreaming Requirement in the Context of
      Autistic Spectrum Disorders
      A. The Circuit Tests as Equivalents in the Context
         of Autistic Students
        1. As Applied, the Tests Account for
           Substantially Similar Factors
        2. The Circuit Tests Are Applied with Equal
           Deference to Local Educational Officials
        3. Decisions Applying the Roncker Test
           Highlight Judicial Deference to the
           Educational Placement Decisions of State and
           Local Officials
        4. The Daniel R.R. and Holland Tests Are not
           Clearly More Deferential than the Roncker
           Test to Educational Placement District
           Decisions
     B. Tensions Between the Underlying Principles of
         the Mainstreaming Requirement and the Clinical
         Features of Autistic Spectrum Disorders
Conclusion

INTRODUCTION

Autism is a brain development disorder characterized by impairments in social and communication abilities. (1) Children with autism or one of the related autistic spectrum disorders ("ASD") are eligible for special education under the Individuals with Disabilities Education Act ("IDEA"), which provides, in part, that disabled students must be educated with non-disabled peers as often as possible, a practice referred to as mainstreaming or inclusion. The federal circuit courts apply different tests to evaluate compliance with this mainstreaming requirement, but as argued in this Note, the circuit tests are effectively equivalent with respect to children diagnosed with ASDs. One significant issue in applying each of these tests is that tensions exist between the mainstreaming requirement of the IDEA and the clinical features of children with ASD diagnosis. As discussed below, children with ASD have deficits in communicative and social behaviors that tend to minimize the importance of mainstreaming for these children.

Part I of this Note provides a brief background on autism and methods of diagnosis and treatment. Part II of this Note reviews the development of the IDEA and outlines the main judicial tests for determining compliance with the mainstreaming requirement. Part III of this Note argues that despite differences in phrasing, the circuit tests as applied in the context of autistic children involve substantially the same inquiries. Part III discusses the tensions that exist between the needs of children with autism and the mainstreaming requirement of the IDEA, concluding that Congress and the Department of Education should relax the mainstreaming requirement in the context of autistic spectrum disorders.

I. AUTISM, METHODS OF DIAGNOSIS, AND TREATMENT

A. Background on Autistic Spectrum Disorders

Autism is a term used to describe a set of cognitive, social and behavioral impairments that are commonly found to coexist in affected individuals. (2) The disorder was first reported by Leo Kanner in a seminal publication in 1943, (3) in which Kanner reported observations of eleven children who exhibited a set of undocumented behavioral atypicalities.

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