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Research Bulletin

Phi Delta Kappa Center for Evaluation, Development, and Research
November 1994, No. 13

Inclusion and the Law: Recent Judicial Developments
By Martha M. McCarthy

Few concepts are at the same time as attractive and threatening as "inclusion." The term is generating considerable controversy among regular and special educators and policymakers. What does inclusion mean? When is inclusion appropriate? When is it required? These are simply a few of the questions eliciting diverse responses. The purpose of this bulletin is not to debate the advantages or disadvantages of inclusion, but rather to provide an overview of how courts are currently interpreting its legal status.

CONTEXT

The Individuals with Disabilities Education Act of 1990 (IDEA), formerly the Education for All Handicapped Children Act of 1975, stipulates that children with disabilities must be provided a free appropriate public education in the least restrictive environment (LRE). This LRE mandate means that each state education agency 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 nondisabled children."(1) Under IDEA regulations, children can be placed in special classes or separate facilities "only when 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."(2)

The term "inclusion" is not mentioned in the federal law; it is a state-of-the-art term that refers to placing children with disabilities in integrated sites. Inclusion differs from mainstreaming in that the latter term usually refers to integrating children with disabilities and nonhandicapped children for only a portion of the day, which may be during nonacademic times. In a fully inclusive model, students with disabilities, no matter how severe, are taught in the regular education classroom of their home school with their age and grade peers for the full day with support services provided within that classroom.(3) In short, inclusion means bringing support services to the child rather than moving the child to a segregated setting to receive special services.(4) Whether full inclusion is appropriate for all children with disabilities remains the source of considerable debate.(5)

CASES UPHOLDING SEGREGATED PLACEMENTS

In cases prior to 1990 several courts recognized a tension within the federal law's mandates that children with disabilities be educated in the LRE and be provided appropriate programs.(6) When these two mandates seemed to be in conflict, courts often favored school districts' assertions that for specific children the appropriate programs were housed in segregated settings. In essence, a more restrictive placement might be necessary under certain circumstances to meet a child's needs appropriately.

Placements involving hearing-impaired children have generated a number of disputes. Several courts have upheld segregated placements as appropriate settings for these children because they need to be instructed with other hearing-impaired students.(7) For example, in 1991 the Fourth Circuit Court of Appeals upheld placement of a profoundly hearing-impaired child in a school several miles from his home instead of his neighborhood school, reasoning that the centralized program better served the interests of all students.(8) In 1992 the U.S. Department of Education issued a Notice of Policy Guidance stipulating that "any setting, including a regular classroom, that prevents a child who is deaf from receiving an appropriate education that meets his or her needs, including communication needs, is not the LRE for that individual child."(9)

Several courts have ruled that the LRE mandate does not require school districts to place students with disabilities in their neighborhood schools in all situations, as long as such children are mainstreamed with nonhandicapped students as much as possible.(10) In 1983 the Sixth Circuit Court of Appeals held that where a segregated facility is considered superior, a determination must be made as to whether the services that make that placement superior could feasibly be provided in a nonsegregated setting.(11) The appellate court indicated that the judiciary should compare benefits of both settings, consider whether the child would be disruptive in the regular classroom, and assess cost differences between the two placements. Relying on this standard, the Fourth Circuit Court of Appeals upheld placement of an autistic high school student in a specialized vocational center, reasoning that an appropriate education would not be possible for the child in a general education setting.(12)

For economic reasons some school districts have centralized special education services, and several courts have upheld this practice. For example, in 1991 the Eighth Circuit Court of Appeals approved a centralized program for a wheelchair-bound student with spina bifida, concluding that school authorities did not have to modify the neighborhood school for wheelchairs when an accessible program was available elsewhere in the school district.(13)

Although upholding a substantially segregated placement for a child with Down's syndrome, in Daniel R.R. v. State Board of Education the Fifth Circuit Court of Appeals announced a two-part standard that several subsequent courts have applied in ordering inclusive placements.(14) According to this court, the judiciary must first determine whether the child can be educated in the general classroom satisfactorily with supplementary aids and services. If not, special education must be provided, and the school district must mainstream the student to the maximum extent appropriate. The court articulated several factors that should be considered in determining whether a child should be placed in the regular classroom (e.g., the student's ability to grasp the regular education curriculum, nonacademic benefits that would accrue to the child such as social interaction and language models, and the effect of the student on the general education program and other students). The court noted that school officials are not required to provide every conceivable supplementary aid or service to assist the child and that regular classroom teachers need not devote all or most of their time to one child with disabilities or modify the regular curriculum beyond recognition.

CASES REQUIRING INCLUSION

Several recent cases seem to tip the scales in favor of inclusive programs. For example, in Greer v. Rome City School District (1991) the Eleventh Circuit Court of Appeals stated that IDEA's presumption in favor of mainstreaming required placement of a Down's syndrome child in a general education program at her neighborhood school rather than a separate special education class.(15) Applying the standard articulated in Daniel R.R., the court held that the school district had not given adequate consideration to educating the child in the regular class with supplementary aids and services. The court used a four-part test to assess whether inclusion is required: compare academic benefits the child would receive in regular and special placements, compare the nonacademic benefits (social, language, and role modeling) of both settings, assess the effect of inclusion on other children in the regular classroom, and determine whether the costs of an inclusive program would be so great as to have a significant impact on education of other children. The court noted that if it were determined that the child would make significantly more progress in a special class and would likely fall behind in the regular classroom, full inclusion would not be appropriate.

In a significant 1993 decision, Oberti v. Board of Education of the Borough of Clementon School District, the Third Circuit Court of Appeals ruled that school districts have an affirmative obligation to consider placing students with disabilities in regular education classes with supplementary aids and services before they explore other alternatives.(16) The court stated that the burden is on the school district to rebut IDEA's strong preference for mainstreaming, and this can only be done by showing that the student's disabilities are so severe that he or she will receive little or no benefit from inclusion, that the child is so disruptive that education of others will be impaired, or that costs are so significant they will have a negative effect on other students. The court declared that although school systems must provide a continuum of placements for children with disabilities, they must consider the least restrictive option first and cannot justify segregated placements simply because inclusion requires a modification of the curriculum. The court held that inclusion is a right, not a privilege for a select few children with disabilities.

In a 1994 California case, Sacramento City Unified School District v. Rachel H., the Ninth Circuit Court of Appeals also strongly endorsed inclusion.(17) Because the school district proposed a segregated placement for a moderately mentally retarded child, her parents enrolled her in a private school where she attended kindergarten through second grade in regular classes. In assessing whether the school district was obligated to provide an inclusive placement, the court found that the child had made substantial progress in the regular classroom and that there had been no detrimental effect on the regular education program. Although there was mixed evidence on the nonacademic benefits of her placement in the regular classroom, her parents and current teachers (the witnesses considered most credible) indicated that there had been growth. The court further found that the school district had inflated its estimate of the costs that would be required to educate the child in the regular classroom. The court was not persuaded by the school district's assertion that it would lose state funding if the child did not spend at least half of her time in special education, noting that a waiver from such regulations can be obtained. The court also found unpersuasive the district's contention that the child must be taught by a specially certified teacher. Accordingly, the appeals court affirmed the conclusion of the lower court and hearing officer that the child should be placed full time in the regular class with support services.

FUTURE DIRECTIONS

Recent decisions suggest that courts are not as deferential to school personnel in analyzing the LRE mandate as they were several years ago; they have become more assertive in ordering inclusion. Judicial decisions rendered in the past few years cast doubt on some earlier rulings where courts upheld placements in segregated programs instead of the disabled children's neighborhood schools.

Courts, however, will review the specific circumstances of each case, and it is not impossible for school authorities to substantiate that the welfare of the child or classmates would be jeopardized in the regular classroom. For example, the Ninth Circuit Court of Appeals recently ruled that a child with Tourette's syndrome and Attention Deficit Hyperactivity Disorder should be placed in a special school for learning disabled children rather than in the regular education classroom.(18) Applying the criteria it used in Rachel H., the court reasoned that this child's very disruptive classroom behavior prevented him from learning in the regular classroom and posed a threat to others. Moreover, his sexually explicit remarks directed toward female students had harmful effects and posed potential liability for school officials if they failed to remedy such sexual harassment. Weighing these findings, the court concluded that the special school proposed by school authorities was the appropriate placement for the child.

Support for inclusion is not universal, even within the special education community. For example, the Learning Disabilities Association of America has taken a stand against full inclusion for all children with disabilities and reiterated its support for a continuum of placement options.(19) In contrast, the Council for Exceptional Children has taken a position advocating inclusion of children with disabilities in neighborhood schools.(20)

Teachers' unions are skeptical at best about full inclusion. The American Federation of Teachers (AFT) has taken a strong position calling for a moratorium on the placement of children with disabilities in regular classrooms while educators review how to make such placements work. AFT released results of a study in 1994 indicating that over three-fourths of the teachers polled would object to their schools adopting a full-inclusion policy.(21) The National Education Association (NEA) has taken a more moderate stance advocating "appropriate inclusion."(22) The NEA policy stipulates that special education students should be taught in the regular classroom only if their teachers are prepared to assist them. NEA contends that schools must train teachers and allow them additional time to plan for teaching disabled students and that they must reduce class size when classes include children with disabilities.

There are also fiscal concerns over inclusion, primarily that inclusion might result in a reduction in funds targeted for children with disabilities. With many school districts facing budgetary problems, some fear that children with disabilities will be placed in regular education without appropriate support services.(23) Moreover, some state funding systems tie state special education allocations to the location where services are provided, thus furnishing incentives for restrictive placements.(24) Many state school finance systems will need to be revised for inclusion to be encouraged rather than discouraged by fiscal arrangements.

There are a number of other unresolved issues. For example, how superior to placement in regular education must a segregated program be for it to be justified? The Eleventh Circuit Court of Appeals in Greer indicated that if the child would likely fall behind in the integrated setting and make significantly more progress in a special class, inclusion would not be required.(25) But such determinations of how children might progress in the future are problematic for planning committees and courts.

Also, if inclusion means that children must be instructed in the regular class with their age peers, there are special problems at the high school level, where students change classes each hour and often are tracked by ability in academic courses. The Third Circuit Court of Appeals in Oberti noted that inclusion in regular academic classes may become less appropriate in higher grades for children with cognitive impairments.(26) The Fifth Circuit Court of Appeals also stated in Daniel R.R. that inclusion would not be appropriate if the curriculum must be modified beyond recognition.(27) But for some severely disabled students, substantial modifications would be required for them to be instructed with their age peers.

As courts in the past have had problems in assessing whether programs are appropriate, courts are likely to have similar difficulties in assessing whether services can be provided satisfactorily for children with disabilities in the regular classroom. The Supreme Court has yet to address directly the LRE provision of the IDEA, but it seems destined to have to do so in the near future.

ENDNOTES

1. 20 U.S.C. 1412 (5)(B); 34 CFR 300.550.

2. 34 CFR 300.550.

3. National Association of State Boards of Education, Winners All: A Call for Inclusive Schools (Alexandria, Va.: NASBE, 1992). NASBE has asserted that the portion of students labeled for special services should be relatively uniform for all schools within a district, reflecting the ratio for society in general. See also "Inclusion: What Does It Mean?" SEAS Cable 14, no. 7 (1993): 1-3.

4. See Joy Rogers, "The Inclusion Revolution," Research Bulletin 11, Phi Delta Kappa Center for Evaluation, Development, and Research, May 1993, p. 1.

5. See Richard Smelter, Bradley Rasch, and Gary Yudewitz, "Thinking of Inclusion for All Special Needs Students? Better Think Again," Phi Delta Kappan 76, no. 1 (1994): 35-38; Thomas Parrish, "State Funding Provisions and Least Restrictive Environment: Implications for Federal Policy," Brief No. 2, Center for Special Education Finance, Palo Alto, Cal., fall 1993.

6. See Martha Minow, "Learning to Live with the Dilemma of Difference: Bilingual and Special Education," Law and Contemporary Problems 48 (spring 1985): 157-81.

7. See Briggs v. Bd. of Educ. of Connecticut, 882 F.2d 688 (2d Cir. 1989); Lachman v. Illinois State Bd. of Educ., 852 F.2d 290 (7th Cir. 1988), cert. denied, 488 US 925 (1988). Lachman actually focused on a controversy over methodology; the parents wanted their child instructed in cued speech in the regular classroom, whereas the school district proposed use of the total communication approach, which necessitates placement with other hearing-impaired students.

8. Barnett v. Fairfax County School Bd., 927 F.2d 146 (4th Cir. 1991), cert. denied, 112 S. Ct. 175 (1991).

9. U.S. Department of Education, "Notice of Policy Guidance," vol. 19, 57 Fed. Reg. 49,274-49,276 (October 30, 1992).

10. See Gillette v. Fairland Bd. of Educ., 1991; A.W. v. Northwest R-1 School Dist., 813 F.2d 158 (8th Cir. 1987), cert. denied, 484 U.S. 847 (1987); Wilson v. Marana Unified School Dist. No. 6 of Pima County, 735 F.2d 1178 (9th Cir. 1984).

11. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983), cert. denied, 464 US 864 (1983).

12. Devries v. Fairfax County School Bd., 882 F.2d 876 (4th Cir. 1989).

13. Schuldt v. Mankato Independent School Dist., 937 F.2d 1357 (8th Cir. 1991), cert. denied, 112 S. Ct. 937 (1992).

14. 874 F.2d 1036 (5th Cir. 1989).

15. 950 F.2d 688 (11th Cir. 1991), opinion withdrawn by, 956 F.2d 1025 (11th Cir. 1992), opinion reinstated in part by, 967 F.2d 470 (11th Cir. 1992).

16. 995 F.2d 1204 (3d Cir. 1993).

17. 14 F.3d 1398 (9th Cir. 1994), cert. denied sub nom. Sacramento City Unified School Dist. v. Holland, 114 S. Ct. 2679 (1994). See also P. J. v. State of Connecticut Board of Educ., 788 F. Supp. 673 (D.C. Conn. 1992) (court ruled that a Down's syndrome child with mild to moderate mental impairment was entitled to an individualized education program (IEP) in a fully integrated setting with appropriate special education services or the IEP must detail a strong justification for any segregation).

18. Clyde K. and Sheila K. v. Puyallup School Dist., No. 93-35572, __ F.3d __ (9th Cir. 1994).

19. "Learning Disabilities Association Position Paper on Full Inclusion of All Students with Learning Disabilities in the Regular Education Classroom," LDA Newsbriefs, March/April 1993, p. 1.

20. "Council for Exceptional Children Policy on Inclusive Schools and Community Settings" (policy statement adopted by the Council for Exceptional Children Delegate Assembly, San Antonio, Texas, April 1993.)

21. Joanna Richardson, "A.F.T. Says Poll Shows Many Oppose 'Inclusion'," Education Week, 3 August 1994, p. 14.

22. David Hoff, "NEA Policy Sets Parameters for Special Ed Inclusion," Education Daily, 7 July 1994, pp. 1-2.

23. See Smelter, Rasch, and Yudewitz, "Thinking of Inclusion for All Special Needs Students?"

24. See Samuel Dempsey and Douglas Fuchs, "'Flat' Versus 'Weighted' Reimbursement Formulas: A Longitudinal Analysis of Statewide Special Education Funding Practices," Exceptional Children 59, no. 5 (1993): 433-43; Parrish, "State Funding Provisions and Least Restrictive Environment"; Erica G. Sorohan, "Special Education Community Divided Over Merits of 'Inclusion'," School Board News, 9 July 1992, pp. 1, 8.

25. 950 F.2d 688, 697 (11th Cir. 1991).

26. 995 F.2d 1204, 1224, n. 30 (3d Cir. 1993).

27. 874 F.2d 1036, 1048 (5th Cir. 1989).