Academic journal article Journal of Law and Education

The Least Restrictive Environment: How to Tell?

Academic journal article Journal of Law and Education

The Least Restrictive Environment: How to Tell?

Article excerpt

I. INTRODUCTION

The Individuals with Disabilities Education Act (IDEA),1 first enacted in 1975 as the Education for all Handicapped Children Act, is a federal spending program that all fifty states have implemented in their public schools.2 As conditions of funding, the federal law mandates a free appropriate public education (FAPE) for all school children with disabilities3 and further provides procedural remedies to ensure IDEA compliance.4 The landmark case of Brown v. Board of Education* held that "separate, but equal" schools are inherently unequal, as they deny both equality and opportunity.6 Building upon civil rights litigation and other political activism, Congress included within IDEA the policy that children with disabling characteristics should be educated with children who are not disabled to the "maximum extent appropriate."7

The result is a Least Restrictive Environment (LRE) provision that has been the subject of two intense debates. First, a legal division exists among the federal court circuits over the proper criteria to employ in testing whether the LRE requirements are met. second, a policy debate rages among activists over whether the LRE provisions go far enough, not far enough, or too far in integrating America's school children with disabilities with children without disabilities in the educational classroom. In this discussion, the two debates are analyzed independently before their arguments are brought together. A uniform test is then proposed that should more properly serve the goals of IDEA and ensures that all children receive an appropriate educational experience.

II. THE LRE REQUIREMENTS IN IDEA

Historically in America, children with disabilities were excluded from public schools or segregated within those schools so as not to disrupt the learning of the general education students.8 The movement towards inclusion of children with disabilities into public schools, and more generally the placement of children with disabilities into the general classroom setting, is a relatively new development. Studies indicate that as recently as 1970, 1 million students were excluded from public school and an additional 3.5 million did not receive appropriate educational services due to learning disabilities.9 On the heels of court decisions striking down segregation based on minority status, parents of children with disabilities brought and found similar success with court cases arguing for the non-segregated placement of students with disabilities.10 IDEA provisions require school districts to ensure that each student with a disability receives services in the LRE. The language of IDEA requires that state plans must provide that "[t]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled . . . ."11 Before a student can be removed, it must be considered whether the student is unable to achieve "satisfactorily" in the regular classroom environment with supplemental aids and services.12 If the choice to remove is made, and the child is placed in a specialized setting, the school is required to mainstream the student with peer children without disabilities in non-academic settings such as lunch and recess, if appropriate to meet the needs of the student.13

Additional Department of Education regulations help clarify how a school district can remain in compliance with IDEA. Districts are required to implement a continuum of alternative placements to use as a guide when placing students with disabilities in a LRE.14 This continuum must range from a default of regular classroom placement (least restrictive) to a completely segregated institution or hospital (most restrictive).15 The school is free to combine or choose intermediate settings along the continuum so as to best serve the child's individual needs.16

Initial decisions regarding LRE placement are to be made by the Individualized Education Program (IEP) team which consists of school personnel, the parents, and in some instances, the student. …

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