1. 1 Least Restrictive Environment Sherrie Brown Special Education and the Law Winter Quarter 2010

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

3. 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. 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. 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. Disfavored because of the association with “dumping” into regular education. Inclusion or integrated education: child in the regular classroom with adaptive curriculum or is it a philosophy? Both are examples of the LEAST RESTRICTIVE ENVIRONMENT CONTINUUM. From Colker and Milani (2006) Everyday Law for Individuals with Disabilities.

6. 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. 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. 300.114 Continuum of Alternative Placements must be available. 34 C.F.R. 300.115

8. 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 300.516 8

9. 9 Washington State Regulations Mirror for the most part the federal regulations on LRE. See handout of WAC 392-172A-02050 through 02070. What do you think about WAC 392-172A-02060? (2) The selection of the appropriate placement for each student shall be based upon: (a) The student's IEP; (b) The least restrictive environment requirements contained in WAC 392-172A-02050 through 392-172A-02070, including this section; (c) The placement option(s) that provides a reasonably high probability of assisting the student to attain his or her annual goals; and (d) A consideration of any potential harmful effect on the student or on the quality of services which he or she needs.392-172A-02050 392-172A-02070

10. 10 Final thoughts on the LRE regulations… Federal Register: Comments to proposed new rules/regulations to IDEA 2004 (published in 2006) IDEA does not limit the number or percentage of disabled students that may be placed in a “regular” education classroom. (letter from OSERS, DOE) 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.

11. 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. 11

12. Cases for Tonight: A.B., et. al v. Bremerton School District (2008) Clyde K. V. Puyullap School District (1994) 12

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? 13