Legal Aspects in Education
Integration of Special Education Students
Position Paper
Jamie Stearns
August 5, 2008
Dr. Rose
Special Education students should be afforded the right to learn in a continuum
of placements and these opportunities should not come at the expense of other students.
This can be called mainstreaming or inclusion, but ultimately the issue of how a student
is educated, when that student will be educated and where they will be educated is part
of a special education students rights under The Individuals with Disabilities Education
Act (IDEA). IDEA affords children with special needs a Free and Appropriate Education
(FAPE) in the Least Restrict Environment (LRE). Parents and school districts often go
to court to resolve disagreements regarding a FAPE in the LRE. Parents seek
reimbursement of private schools when the parent has removed their child because they
feel their child’s rights to a FAPE have been violated. Districts and parents seek the
courts to resolve issues related to student placement in the LRE. Parents often argue
that the school district does not provide a LRE or the services are not appropriate for the
student.
FAPE means that every child with a special need has the right to a public
education that appropriately meets their needs. There is much dispute over the
definition of appropriate. The word appropriate is very tricky to define because each
student with a special need is unique and requires various services in various locations
and for various durations of time. In Board of Education of the Hendrick Hudson
Central School District v. Rowley the courts addressed the word “appropriate” in a
FAPE. Justice Rehnquist wrote that a FAPE is satisfied “by providing personalized
instruction with sufficient support services to permit the child to benefit educationally
from the instruction.” This is a landmark decision by the Supreme Court because it
means that school districts must provide educational opportunities to students with
special needs but these opportunities do not have to be the best of the best.
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The Supreme Court’s decision in the Rowley case reversed the District Court
ruling of the same case. The District Court defined a FAPE as “an opportunity to achieve
full potential commensurate with the opportunity provided to other children,” Board of
Education of the Hendrick Hudson Central School District v. Rowley 458 U.S. 176
(1982). The District Court’s ruling meant that school districts would have had to
provide students with special needs all the possible supports to ensure that their
achievement and potential matched.
If there is a service the district could provide to improve the education of a
student with special needs the district must provide it. Examples of services a district
must provide a student for educational purposes are: speech therapy, physical therapy,
occupational therapy, and nursing services, to name a few. This component of the law
allows that a variety of teachers, therapists and peers will work with a student with
special needs with no cost to the parent. Although appropriate does not address the
exact location of these services. It is important to note that each student with special
needs should have the opportunity to a continuum of placements. The continuum of
placements should include “regular and special classes and special schools and
institutions” (Longuil, 1994).
Appropriate also has implications for a continuum of services; this is linked very
closely to LRE. A continuum of services does not mean that all special education
students should be educated in a regular education classroom all of the time, better
known as full inclusion. In fact, “full inclusion does not appear anywhere in the IDEA
and universal full inclusion of all children with disabilities would violate the mandates
of the IDEA.” (La Morte, p. 342).
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In Section 1412 of the IDEA children with disabilities are to be placed “[t]o the
maximum extent appropriate . . . are educated with children who are not disabled and . .
. removal . . . occurs only when 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.” 20 U.S.C. S 1412 (2004).
A school district can provide a FAPE without providing LRE and visa versa. If a
school district is not able to provide a LRE to a student due to lack of a continuum of
placements, the district must pay for the student attend an alternative placement.
T.R. is the parent of N.R. a minor who was to attend Kingwood Township. N.R.’s
parents were presented with two different Individual Education Plans (IEP) for N.R.
The first would have placed N.R. in a regular education kindergarten classroom for full
days, N.R.’s parents rejected the IEP. The second IEP placed N.R. in mornings in a preschool with half children with special needs and half the class without special needs. In
the afternoon N.R. would go to a resource classroom where he would receive speech
therapy and other services. Again N.R.’s parents rejected the IEP. N.R.’s parents then
decided to place N.R. in a private daycare, where N.R. had attended the previous year
and made academic progress. The parents disagreed with the placement stating it did
not provide a FAPE in a LRE. The Circuit Court agreed with the District court that a
FAPE would have been provided for N.R. The Circuit Court did not find that the school
district would provide the LRE for N.R.
The Circuit Court came up with a two part test for determining the LRE. First,
education in the regular education classroom was not successful, even with aids and
additional services. Second, a regular education classroom is not within a reasonable
commuting distance. As a result of T.R. v. Kingwood Township 3rd Cir. (2000) the court
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stated “the school district is required to take into account a continuum of possible
alternative placement options when formulating an IEP, including [p]lacing children
with disabilities in private school programs for nondisabled preschool children.”
Many parents have argued in court for their child to receive more instruction in
the regular education classroom. It has been argued that because IDEA says the LRE in
the regular education classroom is always the LRE for students with special education
needs. This is not true, to the contrary “more restrictive placements are appropriate
when a less restrictive placement threatens the safety of the disabled child or other
students or when a child with a disability is so disruptive in a regular classroom that the
education of other students is significantly impaired.” (La Morte, p. 343)
In the case of Hartmann v. Loudoun County Board of Education a student with
autism named Mark was placed in a first grade regular education classroom after a
successful kindergarten experience. Mark’s school district went to great lengths to
ensure his success. The school district assigned Mark to a small class with independent
students, hired a one on one teaching assistant, trained the teacher and teaching
assistant, brought in consultants, and had a special education teacher on the team. Mark
did not make academic gains during his first grade year and had a significant level of
disruptive behaviors. The district proposed a change of placement for academics for
Mark’s second grade year. Mark’s parents refused this plan. The court found that Mark
was provided the LRE even when his placement in regular education classes was
decreased for academic instruction in a different placement.
In providing students with the LRE it is important to take into consideration
other students within the regular education setting. In the Hartmann case the court also
stated, “The mainstreaming provision represents recognition of the value of having
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disabled children interact with non-handicapped students. [S]ocial benefits [are]
ultimately a goal subordinate to the requirement that disabled children receive
educational benefit,” Hartmann v. Loudoun County Board of Education 4th Cir. (1997).
Because Mark did not make academic progress in his first grade placement the court
determined that Mark’s IEP did not violate LRE.
The implications of a FAPE in the LRE is as unique as the population the status
serves. FAPE has multiple meaning. In Rowley the definition of appropriate was
addressed and defined as providing educational benefit without providing the
maximum. In the Hartmann case, Mark Hartmann was not making academic gains in a
regular education placement and was highly disruptive to his peers. Mark’s placement
was not in a LRE because of his lack of academic progress and disruptive behaviors. The
T. R. case brings together FAPE and LRE, the court found that a FAPE was provided for
T.R. but the LRE needed to be explored more in depth as T.R. was able to make
academic gains in a less restrictive environment than the school district was able to
provide. All of these put together support the idea that students with special needs
should be provided a FAPE in a LRE. The appropriateness of the education needs to be
unique to the student and provide academic growth. The LRE needs to be a continuum
of placement options the IEP team assesses to determine what will be in the best
interest of the student.
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Resources
Board of Education of the Hendrick Hudson Central School District v. Rowley 458 U.S.
176 (1982)
Hartmann v. Loudoun County Board of Education 4th Cir. (1997)
Longuil, C. (1994).Free appropriate education: A historical perspective. Journal of
Visual Impairment and blindness. v. 88 issue 4, 292-294.
Kutash, K (Dec. 2006). Creating Environments that work for all youth:
Increasing the use of Evidence-based strategies by special education teachers.
Research to Practice Brief, 5(1), Retrieved August 1, 2008.
T.R. v Kingwork Township 3rd Cir. (2000)
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