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(7.3) What are the major legislative provisions of law underlying the Least Restrictive Environment requirement?

(7.3) What are the major legislative provisions of law underlying the Least Restrictive Environment requirement?

Federal law provides that each local school district must ensure that, 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. Sec. 1412(a)(5)(A); 34 Code of Federal Regulations (C.F.R.) Sec. 300.114(a)(2); Cal. Ed. Code Sec. 56342(b).]

In addition, Congress has recognized that 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. Because of this danger, 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. [20 U.S.C. Sec.1412(a)(5)(B).]

Congress has specifically recognized the importance of education of special education students in regular classes and environments. [20 U.S.C. Secs.

1400(c)(5)(A) & (D).] Congress requires that IEPs include a statement describing how the child’s disability affects her 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. [20 U.S.C. Sec. 1414(d)(1)(A)(i); 34 C.F.R. Secs. 300.320(a)(1) & (2).] The statement of services in the IEP must also include statements of:

  1. the supplemental aids and services to be provided for the student; and
  2. the program modifications and supports for school personnel to be provided for her to be involved, progress in the general curriculum, and participate in extracurricular and nonacademic activities. [20 U.S.C. Sec. 1414(d)(1)(A)(i)(IV); 34 C.F.R. Sec. 300.320(a)(4).]

State law provides that:

Students with disabilities shall be offered “special assistance programs that promote maximum interaction with the general school population in a manner that is appropriate to the needs of both.” [Cal. Ed. Code Sec. 56001(g).]

Special classes that serve students with similar and more intensive educational needs shall be available. The special classes may enroll the students only when the nature or severity of the disability is such that education in the regular classes with the use of supplementary aids and services, including curriculum modification and behavioral support, cannot be achieved satisfactorily. These requirements also apply to separate schooling, or other removal of students with special needs from the regular educational environment.

In providing or arranging for the provision of activities, each public agency shall ensure that each [student] participates in those activities with nondisabled students to the maximum extent appropriate to the needs of the [student with a disability], including nonacademic and extracurricular services and activities. [Cal. Ed. Code. Sec. 56364.2.]

For students not yet receiving special education, but for whom special education eligibility is being considered, state law provides that a student shall be referred for special educational instruction and services only after the resources of the regular education program have been considered and, where appropriate, utilized. [Cal. Ed. Code Sec. 56303.]

Federal regulations provide:

Unless the IEP [individualized education program] of a child with a disability requires some other arrangement, the child is educated in the school that she would attend if nondisabled; [and] [i]n selecting the LRE [least restrictive environment], consideration is given to any potential harmful effect on the child or on the quality of services that she needs. [34 C.F.R. Secs. 300.116(c) & (d).]

Numerous federal courts have issued decisions on the issue of special education in the Least Restrictive Environment. For the most part, these decisions have encouraged integrated education and have established a solid trend in this direction. For example,

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 U.S. Supreme Court has stated:  “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 California, the federal appeals court has stated that the “congressional preference for educating handicapped children in classrooms with their peers is made unmistakably clear …. [Dept. of Educ., State of Hawaii v. Katherine D., 727 F.2d 809 (9th Cir. 1983).]

Another federal court of appeals 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).]

Furthermore, federal special education 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 courts, including the federal courts in California, have established that the burden is on the school district to prove that a student cannot be educated successfully in the regular classroom. See rulings set forth below:

[T]he District has not justified, to the satisfaction of this reviewing court, its decision to exclude [the student] from a regular classroom. [Mavis v. Sobol, 839 F.Supp. 968 (N.D.N.Y. 1994).]

[T]he 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).]

The statutory presumption in favor of mainstreaming has been construed as imposing a burden on the school district to prove that a child cannot be mainstreamed. [Sacramento City Unified School District v. Rachel Holland, 786 F.Supp. 874 (E.D. Cal. 1992).]