By Susan C. Bon
provisions in IDEA focus on protecting the critical educational rights of
children with disabilities: the right to FAPE, education in the LRE, an IEP,
and due process are some of the requirements that come to mind first. These
key IDEA provisions, however, are the source of increasingly destructive and
contentious disagreements over interpretation and implementation of the IDEA in
One possible solution is for Congress, in the forthcoming IDEA
reauthorization, to engage in a data mining process of sorts, by carefully
examining previous court cases for valuable insights regarding the issues that
provoke parents of children with disabilities to turn to the courts for
other words, reauthorization presents an opportunity to alter the status quo
which leads too many parents to seek educational solutions from a largely
removed body – the court – that lacks both experience and expertise in special education,
rather than working with their children’s schools to achieve a reasonable
solution. Recognizing this opportunity, I propose it is time to address the seeming
contradictions between the least restrictive environment (LRE) and a free
appropriate public education (FAPE). With respect to this conflict, I advocate for
using past litigation outcomes as a source of data to drive future revisions to
This perceived tension continues to frustrate efforts to
determine when and if it is appropriate to place a child with a disability in a
non-traditional classroom or segregated learning environment.Also, the mischaracterization of LRE as comparable to inclusion,
leads to significant discord between parents and school districts when
determining educational placements.
At present, the LRE mandate
requires schools to educate children with disabilities, to the maximum extent
appropriate, with children who are not disabled. The IDEA specifically states that removing a
child with a disability from the regular educational environment should only
occur when the nature or severity of the disability, even with supplementary
aids and services, is such that “education in
regular classes with the use of supplementary aids and services cannot be
achieved satisfactorily.” The focus on achieving education
satisfactorily in the regular classroom has been too often relegated to a
secondary status given the primary emphasis on inclusion as the sole means to
achieve education in the regular educational environment to the maximum extent appropriate.
ensure a systematic process of determining educational placements for students
with disabilities, the IDEA reauthorization should include clear statutory language
to guide educational placement decisions and determination of the LRE mandate. Such
language should reflect the following priorities:
the LRE so as to maintain educational benefit as the primary factor, consistent
with FAPE standards.
and consider a range of special and general education placements, along with supplementary
and related services consistent with the existing continuum and services
the mainstreaming preference with the “reality that general education is not
suitable for all disabled students” (J.H.
ex rel. A.H. and S.H. v. Fort Bend Independent Sch. Dist., 2012).
the important distinction between educational and non-academic benefits and assess
the benefits of both.
the effect on the general education classroom environment.
guidelines proposed herein could positively impact the contentious debates over
the determination of LRE and are illustrated in the following hypothetical
scenario. The language used in the example below is taken directly from the case (J.H. ex rel. A.H. and S.H. v. Fort Bend Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012).
order to determine LRE for CB, a student with an I.Q. of 46 and classified as
mentally retarded, the IEP team should first conduct an assessment of the academic
benefit provided in CB’s general education classes. It would not be appropriate
to only consider placing CB in a general education classroom if he received no
benefit according to the professional expertise of the educators most familiar
with CB’s needs, such as an aide, teacher, or special education teacher.
Further, if CB was assisted by an aide at all times and still had to have his
assignments modified more than 70%, it is likely that the general education
classroom is not providing him with educational benefit. Thus, a range of
placements should be explored and supplementary and related services should be
considered if providing these will help achieve the educational benefit goal. In
addition, the IEP team should consider the input of the aide and teachers to
determine if CBs frustration or failure to understand the curriculum has a
negative impact not only on his educational needs but also on the general
education classroom environment. Finally, it is important for the team to
recognize that mainstreaming provides both educational and non-academic
benefits, yet the team should not risk the educational benefits or minimize
FAPE in order to achieve non-academic benefits for CB. Throughout the
determination, parental input should be considered and the primary focus should
be on ensuring educational benefit for CB.
described above, the clarified LRE guidelines promote a focus on educational
benefit, but also include the existing statutory and regulatory language.
Although these changes will not ensure uniformity of LRE decisions across state
boundaries, such guidelines could lead to a reduction of litigation and establish
the supremacy of FAPE and educational benefit over LRE. Finally, clarification
of the current LRE statutory framework has potential to ease the educational,
financial, and emotional strains that are placed on parents and school
officials when special education litigation reaches the courts.
with insights from the extensive history of litigation, legislators may be
better prepared to offer solutions that fix gaps in agreement regarding the
IDEA provisions that are most often sources of litigation and confrontational
disputes between parents and school officials.
ex rel. A.H. and S.H. v. Fort Bend
Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012).
C. Bon teaches education law, higher education law, policy, and disability
courses as a professor at the University of South Carolina. Her scholarship
focuses on the impact of law and ethics on leadership and special education
leadership in K-12 schools and higher education. She
previously worked as the ombudsman at the Ohio Department of Education and
received her law degree and a doctorate in education policy and leadership from
The Ohio State University.