1 Least Restrictive Environment Sherrie Brown Special Education and the Law Winter Quarter 2009

2 Least Restrictive Environment (LRE) Constitutional basis for LRE Statutory and regulatory requirements Judicial interpretations Policy reasons behind “rebuttable presumption” concept

3 Constitutional & Legislative Basis for LRE Legal doctrine that even if legislative purpose of government action is legitimate—e.g., promoting public health and safety—purpose may not be accomplished by means that broadly limit personal liberties if can be accomplished in less oppressive or restrictive manner. State is forbidden from using a bazooka to kill a fly on a citizen’s back if a fly swatter would accomplish the task. Historical treatment of disabled individuals in this country?

4 IDEA mandates LRE Unlike FAPE and related services, LRE is not defined anywhere in the statute. Supremes have not ruled on LRE and the lower courts differ on what standard to apply. IDEA regulations include guidelines. However, how are mainstreaming, inclusion, LRE different…or are they?

5 How do you define these terms? Mainstreaming: not in the IDEA but has come to mean placement in a regular education setting. In some or all of school activities. Inclusion or integrated education: child in the regular classroom with adaptive curriculum. Both are examples of the LEAST RESTRICTIVE ENVIRONMENT CONTINUUM. From Colker and Milani (2006) Everyday Law for Individuals with Disabilities.

6 LRE Statutory Guidance… Children with disabilities to be educated in the same setting (regular educational environment) as their non-disabled peers to the maximum extent appropriate. Removal should only occur when nature or severity is such that education in regular classes with “use of supplementary aids and services cannot be achieved satisfactorily. 20 USC 1412 Therefore, it is not an absolute requirement that all children be served in neighborhood and/or “regular” setting/classroom.

7 Federal Regulations… [T]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are non-disabled, and That 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 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 Continuum of Alternative Placements must be available. 34 C.F.R

Placement (a) The Placement Decision: (1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and (2) Is made in conformity with the LRE provisions of [the regulations]… (b) The child’s placement— (1) Is determined at least annually; (2) Is based on the child’s IEP; and (3) Is as close as possible to the child’s home; (c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled; (d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and (e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. 34 CFR

9 Washington State Regulations Mirror the federal regulations on LRE. See handout of WAC A through

10 So is it really so easy?

11 Final thoughts on the LRE regulations… Comments to IDEA: Appendix A to Part C of 34 CFR See handout… Courts likely to support regular education classroom placement UNLESS Child harmed medically, emotionally or psychologically by the regular placement. Courts willing to remove a child from regular education when severely disruptive or dangerous--unless they are elementary children and then tough.

Judicial standard for LRE Bd. Of Education of Sacramento City Unified SD v. Rachel Holland, 14 F.3d 1398 (9 th Cir. 1994) Four-part Test Comparative educational benefits analysis Nonacademic benefits to child of interacting with others Possible negative effects of presence of child with disability on teacher and other children. Cost of supplemental aids associated with the placement. 12

A.B., et al. v. Bremerton School District (2008) Facts Settlement terms: Placement of students residing in RHC (Francis Haddon Morgan Center) will not depend on their residency. Placement of students will be determined on individual basis and will provide FAPE in the LRE. Additional classroom space (portables) will be build at Bremerton High School to accommodate additional students. However, the portables will not necessarily be the classroom for the students from FHMC and if they are placed there, the portables will have restroom, sink etc. 13

So is it so easy? FAPE vs. LRE What role does “cost” play? How many supplementary aids/services are required? Burden of proof? Rebuttable presumption concept What would you establish as standards? Trial Placements—discuss with the Vashon Case 14

Temporary Restrictive Placement? Ms. S. v. Vashon Island SD, 337 F.3d 1115 (9 th Cir. 2003) School district is not required to attempt a regular education placement prior to placement in a more restrictive setting WHEN It relies on relevant reports and records from previous school enrollment. Student’s academic performance well below peers and she had been home-schooled for past year. She would have benefited from socialization with non-disabled peers, but her need for individualized curriculum and history of some behavioral problems weighed in favor of more restrictive placement at least temporarily. 15