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Tuesday, October 21, 2014

Your Child's Right to Inclusion: LRE Revisited

From Charles P. Fox's Special Education Law Blog

By Charles P. Fox, Esq.
October 17, 2014

"One of the outcomes of inclusive education is to instill tolerance and respect for diversity, Ms. Freeman missed the inclusion boat. LRE is a basic civil right that can not be denied."

In an editorial that appeared in The Wall Street Journal a year ago, school district attorney Miriam Kurtzig Freedman challenged the practice of inclusion of special needs students in regular education classrooms because of her belief that the presence of some of these students is compromising the education of their non-disabled peers. More specifically, Ms. Freedman urges parents of children without disabilities to speak out about how children with special needs are “short changing” the education of their children.

The reasons for inclusion, according to Ms. Freedman are based more on “civil rights and social justice” and not on “best education practices.” The practice of inclusion is “entrenched” and “politically correct.”

Ms. Freedman’s argument, if heeded, would set back the right of disabled children to a free appropriate public education by more than 30 years.

As Ms. Freedman points out, prior to the advent of the Education for all Handicapped Children Act in 1975 (the predecessor of the IDEA), millions of students with disabilities were routinely excluded from public schools. The Education for all Handicapped Children Act was a direct outgrowth of early civil rights legislation, specifically the 1954 Brown vs. Board of Education case, which established the principle that separate is not equal.

This tenet was in turn adapted to court cases in the early 1970s that recognized that students with disabilities had the right to a free appropriate public education or FAPE.

Exactly where these students were to receive FAPE became one of the cardinal principles of the Individuals with Disabilities Education Act (IDEA). According to law, children must be educated in the least restrictive environment, or LRE.


In its most recent reiteration, the IDEA states:

“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 nondisabled; and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if 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.”

Thus the law presumes that children with disabilities will be educated in the general education classroom in the school that they would otherwise attend were they not disabled.

Although parents may struggle mightily over where they believe their child is most likely to succeed academically, study after study demonstrates both the academic and social benefits children with disabilities receive when they are educated in the general ed classroom, where they are held to higher expectations, receive more direct instructional time, have more rigorous IEP goals, and are more engaged in academic learning.

What determines a child’s LRE differs from child to child, and what is appropriate for one child may not be appropriate for another child. Thus, IEP teams are required on a case by case basis to consider the full continuum of placements from the regular education classroom to instruction in hospitals or institutions at the other end.

But it’s not enough for a child to merely sit in the general education classroom doing unrelated work. The goal is for him or her to receive individualized instruction with appropriate modifications or accommodations to ensure the child makes meaningful progress with core concepts of the curriculum.

Thus, in considering each step of the placement continuum, school districts must consider which aids and supports are necessary to ensure the child’s successful placement in the LRE. Like so many terms in the IDEA, “aids and supports,” though not defined, have been elaborated upon in numerous court cases. According to many of these decisions, IEP teams must among other items consider whether a child needs a modified curriculum, whether additional teacher training is required, whether a behavioral support plan is warranted, or whether a child will benefit from an aide.

When a child with special needs is acting out or being disruptive, a school district must first determine whether or not the appropriate supports and services are in place before deciding to change the child’s placement. According to TASH in a paper on “Dispelling the Myths of Inclusive Education,” teachers in these situations may require additional training, support, or time for collaboration. Perhaps students need assistive technology to manage their communication needs or sensory diets to manage the school environment.

All of these variables need to be examined. Only when it is determined that the supports and services are appropriate is removal of the student to a more restrictive placement appropriate.

But what about Ms. Freedman’s contention that the presence of children with special needs in the general education classroom is detrimental to the education of students without special needs?

Contrary to Ms. Freedman’s assertions, numerous studies demonstrate that all children, not just those with disabilities, benefit from inclusive classrooms.

Fishbaugh and Gum found that students without disabilities in inclusive classrooms made consistent academic gains. Hollowood et al showed that the presence of students with severe disabilities did not affect for typical students the time allocated for instruction, actual time used for instruction, or students’ engaged time. The finding that even students with challenging behavior did not affect educational outcomes for non-disabled students has been duplicated by others.

Additionally, Waldron et al found that students without disabilities made comparable to greater gains in math and reading when taught in inclusive classrooms compared to traditional classrooms. Finally, another study reported that the majority of teachers interviewed from specific elementary and secondary schools believed that the non-disabled students were not harmed by the presence of the students with special needs.

How can this be? One possibility, according to McGregor and Vogelsberg, is that the presence of students with special needs leads to new learning opportunities for non-disabled students. A paper titled, Together We Learn Better: Inclusive Schools Benefit All Children,” beautifully summarizes the benefits to all students when children with special needs are included.

Because teachers in inclusive classrooms recognize that each student learns differently, material is presented in a variety of modalities. Those tools needed to ensure an inclusive classroom—differentiated instruction, special academic supports, and behavioral supports—benefit all learners in the classroom, not just the students with IEPs.

Ms. Freedman and other critics of special education may never accept these studies. That is their choice, and they are certainly entitled to their positions. But what is disturbing about Ms. Freedman’s editorial, however, is not that she challenges Congress, which codified its vision of education for disabled children in our country. Nor does she attack the courts that recognize the right of children with special needs to be educated in the general education classroom.

What Ms. Freedman attempts to do is egg on the parents of children without special needs telling them it is their children who are being given the short end of the stick.

One of the outcomes of inclusive education is to instill tolerance and respect for diversity, Ms. Freeman missed the inclusion boat. LRE is a basic civil right that can not be denied.

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