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  • Amy Langerman

Inclusion: The Case for Least Restrictive Environment (Part two in Amy's five part series)

Why is it that children are supposed to be educated in general education classrooms with general education students and with general education curriculum? Well, it turns out that Congress and the United States Supreme Court have said so! In today's post, I want to review the legal backdrop for LRE - the least restrictive environment component of federal law and the research that supports LRE as the placement that will provide the best educational outcomes.

Special education laws are codified in the Individual Disabilities Education Act (IDEA). Its predecessor had been adopted because of the concern “about the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes.” See School Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 373 (1985). In order to prevent the continued warehousing of children with disabilities, states receiving federal funding must ensure:

To 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, and 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 of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114. This is referred to by special educational practitioners as the “LRE mandate”; students must be educated in the least restrictive environment (setting) that will enable the student to make progress that is meaningful for that student.

Given the IDEA’s explicit requirement of both an individually appropriate curriculum, see 20 U.S.C. § 1401(9), and mainstreaming to the “maximum extent appropriate,” see 20 U.S.C. §1412(a)(5)(A), removal from the regular classroom environment is only allowed when the nature or severity of the student’s disabilities are such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Id. In light of this mandate, the 9th circuit Court of Appeals, which governs cases filed in both Arizona and California, adopted a four-part analysis to determine if a student’s education can be satisfactorily achieved in a regular classroom environment with supplementary aids and services.

…[W]e consider: (1) the academic benefits of placement in a mainstream setting, with any supplementary aides and services that might be appropriate; (2) the non-academic benefits of mainstream placement, such as language and behavior models provided by non-disabled students; (3) the negative effects the student's presence may have on the teacher and other students; and (4) the cost of educating the student in a mainstream environment.

Clyde K. v. Puyallup Sch. Dist. No. 3, 36 F.3d 1396, 1401 (9th Cir. 1994), citing Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1402 (9th Cir. 1994). These factors allow judges to determine the least restrictive environment (LRE) in which a student can receive a free and appropriate public education (FAPE), which is the underlying question that must be answered in every placement decision under the IDEA:

…[T]he IDEA does not require that a child with special needs receive the absolute best or "potential maximizing" education, but rather a "basic floor of opportunity" consisting of access to specialized instruction and related services that are individually designed to provide educational benefit. Consequently, since [Student] is challenging the District's placement of her for the 2000-2001 school year, to prevail on her motion she will have to show that, based on the evidence in the administrative record, as a matter of law it is more likely than not that a full inclusion setting would have provided her with educational benefit constituting at least that basic floor of opportunity.

Katherine G. v. Kentfield Sch. Dist., 261 F. Supp. 2d 1159, 1175 (N.D. Cal. 2003) (citations omitted). While the Supreme Court has clarified the FAPE standard when the student has an intellectual disability and is not held to grade level standards, see Endrew F. v Douglas City Sch. Dist., 137 S. Ct. 988 (2017) (requiring that such students have challenging goals to enable progress that was meaningful for the child in light of his or her developmental expectancy), the LRE issue is always one of a FAPE – whether it is more likely than not that an inclusive placement [a regular classroom with supplementary aids and services] will provide the student with FAPE.

Some school districts – particularly those that are not fans of inclusion - argue that Endrew F. requires MORE for students with disabilities and that their self-contained classes provide “more progress” and are “better”. But more and better have never been the standard and the supreme court did not change that in deciding Endrew F. A California ALJ was faced with almost identical arguments from an IEP team trying to move a child with Down syndrome to a more restrictive, self-contained classroom placement it thought would be “better” because of the presence of similar peers working at the same lower level as the student whose parent sought continued inclusion in a general education setting; she quickly dispensed with this paternalistic position, noting the congressional mandate for LRE:

The District witnesses were sincere in their belief that Student needed an SDC [self-contained] classroom to gain academic benefit. They may be correct that Student would gain greater academic benefit by being in an SDC than he would in the inclusion class. But that belief, however sincerely held, is contrary to the wishes of the Congress and the California legislature. The Congress could have enacted IDEA to maximize a child’s academic potential by placing every disabled child in a very small, special education setting. But that was not the policy choice made by Congress. Instead, the policy behind IDEA is to give special education children a basic floor of educational opportunity that places them back in the general education setting as much as possible.

Parents v. Julian Charter Sch., OAH 2012100933 (CA 2013).

Endrew F. didn’t change the LRE mandate but clarified that the benefits that are meaningful to a child are based on his or her unique circumstances. Thus, under present legal standards, the IDEA mandates an IEP that is tailored to the unique needs of the student and is designed to allow him to make progress that is appropriately ambitious, but in light of his circumstances, and in the least restrictive environment where such progress can be achieved

Even if “better” was the standard, research demonstrates that inclusive programs offer the most educational progress and, as such, are “best”. In the 2004 reauthorization of IDEA, with its renewed commitment to placement of students with disabilities in general education classrooms, Congress relied on “30 years of research and experience.” 20 U.S.C. §1400(c)(5). That research showed that students with disabilities who are educated in general education classes do better academically and socially than comparable students educated in non-inclusive settings, regardless of the type of disability or grade level. See e.g., Xuan Bui, et al., Inclusive Education Research & Practice, Maryland Coalition for Inclusive Education (2010) available at (compiling 30 years of research on inclusive practices demonstrates included children perform better academically and socially and have a positive effect on their non-disabled peers). There are scores of individual research studies that demonstrate the positive correlation between inclusive education and long-term outcomes – academically, behaviorally and socially. I have never seen any peer reviewed study that demonstrates that either short term or long-term outcomes are “better” if the student is segregated and taught in a setting with only students with disabilities. If this argument is made, ask for the research to back it up!

Despite the research and legal mandates, school administrators continue to fight for the right to exclude more students. A blog posted on the American Association of School Administrators (AASA) website condemns LRE decisions that supported inclusive education. Susan Bon. Reclaiming the LRE Debate from the Courts. AASA (2016). The National School Boards Association files friend of the court briefs in many LRE cases, advocating for a hands-off approach, supporting “deference” to school personnel with respect to what they term “educational methodology” – which they argue includes pretty much anything including LRE decisions. While some school districts are trying to comply with the research and federal LRE mandates, the fight will continue in many, many more. As I have said many times, I guess I am not retiring any time soon.

I am not here to denigrate special education programs, special classes or the teachers who teach students in those classrooms. I have many students who benefit from receiving their education in separate settings for some or even all their day. It also should be noted that I not only have filed multiple due process petitions against school districts that have insisted on inclusive settings (in districts that have abolished all their specialized classrooms) for children who needed a separate classroom or separate school setting, I have personally filed due process against my own son’s school district for the same reason. Inclusion is not for every student, in all circumstances, at all times of their educational journey. A student who has done well in inclusion settings once may need a more restrictive setting at other times and the opposite is also true. The key to the IDEA and for every student is an individualized assessment without pre-determination. It is hard for some school districts not to predetermine placement, particularly if they have invested in creating and maintaining multiple special day classes. It is equally difficult for some IEP team participants to recognize their own biases, lack of preparation, or lack of resources. The latter is a real problem; I have done inclusion trainings that were attended by public school teachers who have privately told me that they would like me to come and speak to their district to try to encourage more LRE placements. I was careful to “warn” these teachers to be careful about what they wished for as I had seen districts adopt inclusion programs and fail to provide the additional resources to support them. An inclusion program can not survive without special education support and often more support is needed as supports are individualized to each student instead of lumping groups of students together to make the provision of support easier.

We will discuss the arguments that are often advanced at IEP team meetings in part four of this series, to help parents and educators individualize programs to each student and give meaning to the congressional mandate of inclusion to the “maximum extent appropriate”. For now, we end where IDEA started with what is irrefutable: Decades of research identify multiple benefits of inclusive placements for students even with “severe” disabilities across academic, social, communication, self-determination, vocational and behavioral domains. See, e.g. research cited by the authors in Agran, Jackson, et. al. “Why Aren’t Students with Severe Disabilities Being Placed in General Education Classrooms: Examining the Relations Among Classroom Placement, Learner Outcomes and Other Factors.” Research and Practice for Persons with Severe Disabilities (2020). Inclusive environments also benefit peers without disabilities who made greater progress in reading and math. Cole, Waldron and Majd. “Academic Progress of Students across inclusive and Traditional Settings.” Mental Retardation, 42, 136-144 (2004). Non-disabled students who provided peer supports in inclusive settings also demonstrated positive outcomes, such as increased academic achievement, assignment completion and class participation. Cushing & Kennedy. “Academic Effects of Providing Peer Support in General Education Classrooms on Students without Disabilities.” Journal of Applied Behavior Analysis, 30, 139-151 (1997). 1997).

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