1. Week Five: The Law and Inclusive Education March 6, 2007 A-117: Implementing Inclusive Education Harvard Graduate School of Education Dr. Thomas Hehir

2. Pre-IDEA Legal History Use of law to obtain access (state and federal)  Pre-dated passage of PL 94-142 and Section 504.  Cases go back to 1880’s (Beatie case)  Cases were largely unsuccessful – Why?  Influence of Brown (1954)

3. “May it please the Court, I think if appellants’ construction of the Fourteenth Amendment should prevail here, there is no doubt in my mind that it would catch the Indian within its grasp just as much as the Negro. Should it prevail, I am unable to see why a state would have any further right to segregate its pupils on the ground of sex or on the ground of age or on the ground of mental capacity.” (John Davis, Counsel for the State of South Carolina)

4. Pre-IDEA Legal History  LRE concept pre-dated PL 94-142  Cases started to be successful around 1970 - Why?  Wolf (1969)  PARC (1971)  Mills (1972)

5. “Judge Wilkins ordered the children to public school: Today it is doubtful that any child may reasonably be expected to succeed in life if he is denied the right and opportunity of an education.... Segregation, even though perhaps well intentioned, under the apparent sanction of law and state authority, has a tendency to retard the educational, emotional and mental development of the children. The setting aside of these children in a special class affects the plaintiff parents in that... they have been told that their children are not the same as other children in the state of Utah.”

6. “ ‘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 and placement in a special public school class is preferable to placement in any other type of program of education and training.’ ”

7. Passage of PL 94-142  Passage of PL-142  “I believe the burden of proof…ought to rest with that administrator or teacher who seeks to segregate him or her from nonhandicapped children, to place him in a program of special education.” (George Miller)  LRE placed in law  Inclusion of due process provisions

8. Impact of the Law on Inclusion  To understand the impact of the law on inclusive education, you must understand both the regulations and the court decisions.  Why?

9. Least Restrictive Environment (LRE) Least Restrictive Environment (LRE)§300.550 General LRE requirements. (a) Except as provided in §300.311(b) and (c), a State shall demonstrate to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets the requirements of §§300.550-300.556. (b) Each public agency shall ensure— (1) 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 nondisabled; and (2) 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 is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (Authority: 20 U.S.C. 1412(a)(5))

10. Important Post-IDEA Cases Campbell v. Talladega, 1981  Questioned efficacy of segregation  Questioned low expectations  Required contact with non-disabled Tatro v. Texas, 1984  LRE requires catheterization Roncher v. Walter, 1983  Introduced “portability standard”  “In a case where the segregated facility is considered superior, the court should determine whether the services which make that placement superior could be feasible in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate.”

11. Important Post-IDEA Cases Daniel RR 1989 The court established the following two-prong test: 1. Can education in the regular classroom, with the use of supplementary aids and services, be achieved satisfactorily for the child? A. Have there been reasonable efforts to accommodate the child? B. Will the educational benefits in a regular classroom (with aids and services) be comparable to benefits in a special education classroom? C. What are possible negative effects the child’s inclusion may have on the education of other children in the regular classroom? 2. If removal from a regular education classroom is necessary, is the child participating with nondisabled peers in academic, nonacademic and extracurricular activities to the maximum extent appropriate?

12. Important Post-IDEA Cases Oberti, 1993 Daniel RR principles applied Holland, 1994  Cert. denied Carter, 1991  FAPE  LRE defense by district not sufficient without FAPE Garrett v. Cedar Rapids, 1998  LRE requires significant medical supports) Clyde K. v. Puyallup, 1994  Disruption and behavioral problems relevant Murray & Flour Bluff  Neighborhood school placement not absolute

13. IDEA ’97, IDEA 2004 and NCLB  LRE reinforced and expanded  Emphasis on access to general education curriculum  Emphasis on inclusion in accountability systems  Justification for removal  Need for modification of curriculum not reason to remove (’97)

14. Definition of special education from DOE regulations, IDEA ’97 (Karger, 2005) Special education is “specially designed instruction” whose purpose is “to address the unique needs of the child that arise from the child’s disability; and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.”

15. Cycle of Ensuring Access to the General Education Curriculum (Karger, 2005)

16. Provisions in IDEA ’04 (Karger, 2005)  The IEP must include a statement of the child’s present levels of academic and functional performance, including how the child’s disability affects the child’s involvement and progress in the general education curriculum  The IEP must include a statement of measurable annual goals, including academic and functional goals, designed to meet the child’s needs that result from the child’s disability in order to enable the child to be involved in and make progress in the general education curriculum

17. Provisions in IDEA ’04 (Karger, 2005) (cont’d.)  The IEP must include a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to be involved in and make progress in the general education curriculum

18. Accessible Materials  IDEA 2004 establishes National Instructional Accessibility Standards (NIMAS) through the establishment of a National Instructional Materials Access Center

19. Emerging Principles  LRE is a dynamic concept that changes with improvements in professional practice  Achievement matters (FAPE)  Due Process provides an important mechanism to leverage change  Inclusive education is advanced through “access, participation, and progress;” requirements of IDEA 2004. “Highly Qualified Teachers” requirement in NCLB is likely to increase movement toward more integration

20. Emerging Principles cont’d.  An advocate’s or a district’s position in a due process hearing is significantly enhanced if: The child’s program has been shown to be successfully implemented in a general education environment Segregation will have an adverse impact on the child’s education and development Given the provision of supports and aides and the implementation of appropriate behavioral interventions, the child’s placement in the general education classroom does overly disrupt the education of others The program is not excessive in cost The proposed program conforms to best professional practice

21. Final Questions to Consider  Has the law provided enough guidance upon which to make educational decisions?  Has the law promoted more inclusive education?  Why is there such variability?  Does the law matter to parents who cannot hire an attorney?  How can law be used effectively by teachers to promote positive change?