Reclaiming the LRE Debate from the Courts

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By Susan C. Bon

Several 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 public schools. 

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 solutions.   In 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 the IDEA.  

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.  

To 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: 

  • Determine the LRE so as to maintain educational benefit as the primary factor, consistent with FAPE standards.   
  • Document and consider a range of special and general education placements, along with supplementary and related services consistent with the existing continuum and services doctrines.
  • Balance 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). 
  • Recognize the important distinction between educational and non-academic benefits and assess the benefits of both. 
  • Consider the effect on the general education classroom environment. 

The 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). 

In 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. 

As 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. 

 Fortified 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. 

 References: J.H. ex rel. A.H. and S.H. v. Fort Bend Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012). 

Susan 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.


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