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October 1, 1998
Vol. 56
No. 2

Contemporary Issues / The Legal Basis of Inclusion

Educators argue over the definition of inclusion, but what does the law say? This legal analysis provides detailed insights into the Individuals with Disabilities Education Act.

Although no consensus exists about the definition of inclusion, it is generally considered a movement to merge regular and special education so that all students are educated in general education classrooms (Turnbull, Turnbull, Shank, & Leal, 1995). Perhaps because of this lack of concensus, inclusion is one of the most widely and hotly debated topics in education today. But what is the least restricted environment (LRE) requirement of the law, and how does it encourage school districts to include students with disabilities in general education classrooms? By examining these questions and revisiting significant court cases, we can gain a clear understanding of what the law really says about educating all our children.

The Statutory and Regulatory Basis of LRE

The Individuals with Disabilities Education Act (IDEA), initially titled the Education for all Handicapped Children Act, was signed into law by President Ford in 1975. Prior to its passage, more than one million children with disabilities were excluded from public schools, and many students with disabilities who did attend public schools received inadequate educational services in isolated settings. The IDEA represented a national commitment to provide free, appropriate public education for students with disabilities. Further, the law was an effort to end the isolation of students with disabilities by requiring that they be educated with their nondisabled peers.
The IDEA required school districts to educate students with disabilities in the least restrictive environment. LRE is a legal principle requiring students with disabilities to be educated as closely as possible with students without disabilities. Although the term inclusion does not appear in the law, the concept of inclusion is similar to the LRE requirement.
  1. That to the maximum extent appropriate, children with disabilities are educated with children who are nondisabled; and
  2. 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 (IDEA Regulations, 34 C.F.R. § 300.550(b)).
The first part of the LRE mandate requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled. Students with disabilities have a presumptive right, therefore, to be educated in integrated settings. The second part of the LRE principle states that schools can overcome this presumptive right and that students may be educated in more restrictive settings when students cannot be educated satisfactorily in the general education classroom. That is, if students with disabilities will not receive an education to meet their needs in the general education classroom, they may be moved to another setting in which they can receive appropriate education.
The general education classroom is considered the least restrictive environment. If students with disabilities require an educational setting with little contact with their nondisabled peers, such as in a special school for students with disabilities, that setting is considered more restrictive than a general education classroom setting. The less an educational setting resembles the general education environment, the more restrictive it is considered under the law (Gorn, 1997).

The Continuum of Alternative Placements

To ensure that schools have an entire range of placements that vary in terms of restrictiveness, the IDEA requires school districts to have a continuum of alternative placements available. The purpose of the continuum is to allow school personnel to choose from a number of options when determining a student's placement. The presence of these alternative placements ensures that students with disabilities will not be educated in settings more restrictive than necessary. If a student's individual education program (IEP) planning team determines that the general education placement is not appropriate for a student's individual needs, the student should be moved along the continuum of placements to a setting that offers an appropriate education with the least possible amount of segregation from his or her nondisabled peers.
Inclusion, therefore, is not mandated by the law. But the law does mandate that the primary consideration in determining the LRE for a particular student must be made in accordance with his or her individual needs. School districts have options that vary in degrees of restrictiveness from which to choose the appropriate placement. The IEP team must determine the educational programming and placement for students with disabilities in accordance with these principles.

Three Court Cases

What constitutes a least restrictive setting for students is often difficult to determine (Huefner, 1994). Disagreements between parents and schools over LREs have led to many court cases, a number of which have made their way to the U.S. Courts of Appeals. These decisions have set the standards that all other courts must use to review disagreements over the LRE requirement. Thus far, standards of judicial review for LRE cases exist in a number of circuits.
  1. Whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily for a given child; or
  2. If it cannot and the school intends to remove the child from regular education, whether the school has mainstreamed the child to the maximum extent appropriate (p. 1048).
  1. Will the student benefit educationally from the mainstream placement? Benefit may be defined either academically or nonacademically (that is, socially).
  2. What is the student's overall educational experience in the mainstream? Schools must balance the benefits of the general versus the special education setting in making this decision. According to Julnes (1994), this part of the inquiry requires an attempt to mainstream the student. The court, however, noted that the mainstream may be detrimental to the child because the regular classroom may not be able to meet the child's unique needs. The court further stated that "mainstreaming a child who will suffer from the experience would violate the Act's mandate for a free, appropriate public education" (p. 1049).
  3. What effect does the student with disabilities have on the education of the other students? This inquiry requires an examination of "disruptive behavior" or "burden on the teacher" (p. 1049).
Schools must take steps to accommodate children with disabilities in the regular classroom. These steps may include providing supplementary aids and services and modifying the curriculum of the general education class. If the school does not make good-faith efforts to keep the child in the mainstream, it will fail the first part of the test and the inquiry will end.
If a student's IEP team determines that the student cannot be educated in the regular classroom satisfactorily, the court applies the second prong of the test. In this part, the court must determine whether the child is mainstreamed to the maximum extent appropriate. The school must provide the child with as much exposure to nondisabled children as possible. The Daniel R.R. decision suggested mainstreaming the child when appropriate (for example, in nonacademic classes, lunch, or recess). If the school has met both parts of the Daniel R.R. test, then it has fulfilled its obligation under the IDEA.
In 1994, the U.S. Court of Appeals for the 9th Circuit devised its own standard for reviewing LRE cases in Sacramento City School District v. Rachel H. (1994). The standard was similar to that in Daniel R.R. According to the Rachel H. decision, in reviewing LRE cases, courts must address the educational benefits of the general education classroom with supplementary aids and services as compared with the educational benefits of the special classroom; the nonacademic benefits of interaction with nondisabled students; the effects of the student's presence on the teacher' ability to teach and the other students' ability to learn in the classroom; and the cost of mainstreaming.
  1. Mainstreaming is not required if a student with disabilities will not receive educational benefits from a regular classroom;
  2. Mainstreaming is not required if any —al benefit would be significantly outweighed by benefits obtained only in a separate instructional setting; or
  3. Mainstreaming is not required if the child is a disruptive force in the general education classroom.

LRE Principles

  1. Individualization. The cornerstone of special education is the consideration of the individual student's unique needs in determining educational services. To make a placement decision that all students will be in the general education classroom is just as illegal as placing all students with disabilities in special schools. Rather, the planning team that develops a student's IEP must first determine what educational services are required, and then where they can be most appropriately delivered. The one caveat to this principle concerns disruptive behavior. If a student's presence in a particular setting would significantly impair the education of other students, whether by disruptive behavior or by requiring an inordinate amount of the teacher's time, then that setting would not be appropriate (IDEA Regulations, 34 § C.F.R. 300.552, comment). Similarly, if a student's presence in a general education classroom threatens the safety of other students or poses a danger, then a general education setting would not be appropriate (Clyde K. v. Puyallup School District, 1994).
  2. Presumptive right to an integrated education. The LRE mandate in the IDEA sets forth a clear preference for integrated placements. That is, students with disabilities have a right to be educated with students who are not disabled. Before school personnel conclude that a student should be educated in a more restrictive setting, they must consider whether supplementary aids and services would permit an appropriate education in the general education setting. Supplementary aids and services might involve a resource room, itinerant instruction, a paraprofessional assigned to the classroom, a behavior intervention plan, or assistive technology. These considerations must be made prior to or during IEP development. Finally, when students are educated in more restrictive settings, the school must provide as many integrated experiences as possible (for example, integrated recess, physical education classes, or extracurricular activities).
  3. Appropriateness. Nothing in the statutory or case law indicates that LRE considerations are intended to replace considerations of appropriateness. To the contrary, in determining special education and related services, the IEP team's first consideration must be what constitutes an appropriate education for a student. In determining a student's special education, therefore, questions of what educational services are required must precede questions of where they should be provided (Yell, 1998). In making considerations of appropriateness, IEPs must address both academic and nonacademic needs (for example, modeling, social development, or communication). The law's clear preference for educating students with disabilities in general education classrooms indicates that when schools can provide an appropriate education in an integrated setting and the placement will not disrupt the classroom setting, inclusion is generally required (Gorn, 1997).
  4. Options. When an IEP team determines that the student's needs will not be met in general education with supplementary aids and services, the team must have the entire continuum of alternative placements from which to choose the appropriate setting, This does not mean that school districts must have all alternative placements within their boundaries. It does mean that schools must be able to access the appropriate placement if required to meet the needs of a particular child. A school district could use alternative means, such as contracting with larger school districts for services to obtain the required alternative placement.

A Meaningful Education for All Students

Clearly, integrated settings are the preferred placements for all students with disabilities. The IDEA set forth the principle that such placements are the presumptive right of all students with disabilities. However, the most important principles in educational decision making for students with disabilities are individualization and appropriateness. Special education must be individually tailored to meet the unique educational needs of students with disabilities and to provide meaningful educational benefits for all students.

Clyde K. v. Puyallup School District, 35 F.3d 1396 (9th Cir. 1994).

Daniel R.R. v. State Board of Education, 874 F.2d 1036 (5th Cir. 1989).

Gorn, S. (1997). What do I do when . . . : The answer book on special education law (2nd ed.). Horsham, PA: LRP Publications.

Hartmann v. Loudoun County Board of Education, 26 IDELR 167 (4th Cir. 1987).

Huefner, D. S. (1994). The mainstreaming cases: Tensions and trends for school administrators. Educational Administration Quarterly, 30, 27–55.

Individuals with Disabilities Education Act Regulations, 34 § C.F.R. 300 et seq.

Julnes, R. (1994). The new Holland and other tests for resolving LRE disputes. Education Law Reporter, 91, 806–814.

Sacramento School District v. Rachel H., 14 F.3d 1398 (9th Cir. 1994).

Turnbull, A. P., Turnbull, H. R., Shank, M., & Leal, D. (1995). Exceptional lives: Special education in today's schools. Upper Saddle River, NJ: Merrill/Prentice Hall.

Yell, M. L. (1998). The law and special education. Upper Saddle River, NJ: Merrill/Prentice Hall.

Mitchell L. Yell has been a contributor to Educational Leadership.

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