Equality, Equity and LRE
When the federal government finally said that the school district could not simply declare that a child "could not be educated" and send them home in 1975 with the federal Education for All Handicapped Children Act (EHA ),it was the beginning of many new policies in education. One of those new policies was eventually understood as Least Restrictive Environment. Looking at the concept of Least Restrictive Environment, it becomes clear that policy certainly never "fixes" the problem. What policy does do, however, is give you a leg to stand on when you go to court to disagree with the school district about how they are or are not implementing that policy.
The intent of IDEA is to give the child with disabilities the opportunity to be educated to the maximum extent appropriate with children in the general education classroom and all areas of non academic endeavors as well. This became the concept of Least Restrictive Environment which is really another name for inclusion.
Sometimes, when you look at inclusion in a given class there is a much stronger sense of tolerance than participation. Just because a child sits in a given classroom does not mean that they are being included in the activities of that classroom in any kind of meaningful way. True inclusion, on the other hand, is actually an opportunity to be looking at equity in education rather than equality in education. It is really all about teaching the class with the individualized needs and individual talents of the students driving the differentiated instruction. In order for this to take place consistently, it is important that the teachers be supported with opportunities for continuing education as well as creative ways to develop teams working together to achieve true inclusion.
The following excerpts from IDEA and 5 different findings from cases brought against school districts help illustrate how policy goes from Federal Law to local interpretation that further informs or expands understanding of the law's intent and or application. Each of the cases cited probably would not have gotten very far without the policies laid out in IDEA.
To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, to the maximum extent appropriate, children 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. 34 (C.F.R.) Sec.300.114(a)(2)
A state’s method of funding special education services can sometimes encourage districts to place students in specialized settings because of the potential to receive more money. Thus, Congress requires states to develop policies and procedures to assure that their funding systems, if based on type of setting, do not violate the requirements of education in the least restrictive environment.
Congress requires that IEPs include a statement describing how the child’s disability affects their involvement and progress in the general curriculum and a statement of annual goals, including benchmarks or short-term objectives that are related to enabling the student to be involved and progress in the general curriculum.
o The supplemental aids and services to be provided for the student
o The program modifications and supports for school personnel to be provided for the student to be involved, progress in the general curriculum, and participate in extracurricular and nonacademic activities.
• Each public agency shall ensure that each [student] participates in those activities with non-disabled students to the maximum extent appropriate to the needs of the [student with a disability], including nonacademic and extracurricular services and activities.
Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he would attend if non disabled
In selecting the LRE [least restrictive environment], consideration is given to any potential harmful effect on the child or on the quality of services that s/he needs.
There is “a presumption that, among the alternative programs of education and training required by statute to be available, placement in a regular public school class is preferable to placement in a special public school class.” [P.A.R.C. v. Pennsylvania, 334 F.Supp. 1257 (E.D. PA 1972).]
The court adopted “a presumption that among the alternative programs of education, placement in a regular public school class with appropriate ancillary services is preferable to placement in a special school class. [Mills v. Board of Education of District of Columbia, 348 F.Supp. 866 (D. DC 1972).]
“The Act requires participating states to educate handicapped children with non-handicapped children whenever possible. [Board of Education v. Rowley, (1982) 458 U.S. 176.]
In federal court of appeals they found that denying access to a regular public school classroom without a compelling education justification constitutes discrimination.
[Tokarcik v. Forest Hills School District, 655 F.2d 443 (3rd Cir.1981).]
Law “requires school systems to supplement and realign their resources to move beyond those systems, structures and practices which tend to result in unnecessary segregation of children with disabilities.” [Oberti v. Board of Education of the Borough of Clementon School District, 789 F. Supp. 1322 (D.N.J. 1992).]
“The Act’s strong presumption in favor of mainstreaming...would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom.”[Oberti v. Board of Education, 995 F.2d 1204 (3rd Cir. 1993).]
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Marie Lewis is an author, consultant, and national speaker on best practices in education advocacy. She is a parent of 3 children and a Disability Case Manager, Board Certified Education Advocate, and Behavior Specialist Consultant. She has assisted in the development of thousands of IEPs nationally and consults on developing appropriately individualized IEPs that are outcome based vs legally sufficient. She brings a great depth of expertise, practical experience, and compassion to her work as well as expert insight, vision, and systemic thinking. She is passionate and funny and she always inspires and informs.
MJ Gore has an MEd in counseling and a degree in elementary education and natural sciences. She worked as a life-skills and learning support teacher. She has been honored with the receipt of the Presidential Volunteer Service Award. She is the Director and on the faculty at the National Special Education Advocacy Institute. Her passion is social justice, especially in the area of education. She is a Board Certified Education Advocate that teaches professional advocates, educators, and clinicians the best practices in education advocacy.
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