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Students' Inclusion



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Inclusion for Students with Special Needs

 by Wayne Steedman, Esq.


It is not uncommon for the parents of a child with disabilities and the school system responsible for educating the child to disagree over the setting in which the child will be educated. Inclusion is the most common means school systems utilize to meet the legal requirement of educating children with disabilities in the "least restrictive environment." Inclusion is the practice of providing special education and related services to a child with disabilities in the regular classroom. Many parents express concern that their disabled children are being segregated from their nondisabled peers by being placed in separate classes or even separate schools. Sometimes children with disabilities are bussed long distances to special schools because their home school does not provide the services they need. Certainly there are instances where such practices are necessary. However, federal and state laws prohibit the separate education of children with disabilities unless it is the only way the child's educational needs can be met. Before a school can make that determination, it must first consider whether additional aids and services could be utilized to allow the child to remain in regular classes while continuing to receive an appropriate education.

The Individuals with Disabilities Education Act (IDEA) is a comprehensive federal effort to ensure that children with disabilities receive a "free appropriate public education" (FAPE). FAPE is provided through the child's individualized education program (IEP), which is developed in a meeting between the child's parents and school personnel. All states currently accept federal funding to assist in implementing the Act's broad requirements that means each state must have its own regulations to implement the IDEA. Educating children with disabilities with nondisabled children is a major goal and requirement of the IDEA. The law requires states to ensure that "to the maximum extent appropriate, children with disabilities ...are educated with children who are nondisabled." 34C.F.R. 300.550(b). Placing children with disabilities in separate classes or schools may occur only if the child's disability is so severe that the child can not be satisfactorily educated in regular classes even with the use of "supplementary aids and services." Id. The law specifically states that the child should be educated in the school in which he or she would attend if nondisabled, unless the child's IEP requires a different placement. 34 C.F.R.300.552(c). Thus, the IEP, as always, is the key to what educational services the child receives and where those services are provided.

The IDEA does not provide schools or parents with a specific explanation of the term "supplementary aids and services." The federal regulations simply define supplementary aids and services as aids, services and other supports that are provided to children with disabilities to enable them to be educated with nondisabled peers to the maximum extent appropriate. 34 C.F.R. 300.28. Thus, schools and parents are left to their own creativity in determining what aids, services or other supports are needed to ensure the child's placement in the least restrictive appropriate educational placement. It is not unusual to see such supports and services on a child's IEP as a one-to-one tutor for a specific subject area, adapted materials and equipment, a one-to-one aide, crisis management, nursing support for medically fragile children or children with specialized health care needs, etc.

The question then becomes one of how far is the school system required to go to meet the law's LRE requirements. That question has been the topic of numerous court cases, which have resulted in varied judicial opinions. In a 1983 case called Roncker v. Walter, the court ordered the school system to return a child with multiple severe disabilities to his home school and design a program to meet his needs. The school system had placed the child in a segregated county school for children with mental retardation. Although the school system's expert had testified that the segregated program was superior to the child's home school, the court held that even if that was the case, before the school system could remove the child from his home school it must first determine whether the services which made the segregated program superior could feasibly be provided in the non-segregated setting. Notwithstanding Roncker, courts generally defer to the judgment of school system personnel if there has been a genuine and reasonable effort to educate the child in the nonsegregated setting with appropriate supplementary aids and services. Thus, courts have allowed school systems to place a hearing impaired child in a segregated setting rather than order the school system to provide cued speech services at his home school; rejected parents' demand that their child with spina bifida be educated at his home school rather than a segregated county school because the home school was not accessible; approved a child's placement thirty minutes from his home school because there was not a teacher certified in the child's disability at his home school; approved a segregated class for a child with Down syndrome because he required too much of the teacher's time in the regular classroom.

Although these cases seem to indicate a permissive attitude on the part of the courts to favor segregated educational programs, there are just as many cases in which the courts have ordered school systems to implement additional services and supports to ensure the child's education in regular classes. In Sacramento Unified School Dist. v. Rachel H., the court held that the school district had not satisfied its "affirmative obligations" to align and implement its resources to maintain a child with moderate mental retardation in the regular class. The court went on to criticize the school district for not doing enough to limit the "unnecessary segregation of children with disabilities." A similar result occurred in Oberti v. Board of Education. In Oberti, the court ordered placement of a child with Down's syndrome in a general education class as opposed to the segregated placement the school district wanted. The court noted that many of the special education techniques used in the separate classroom could be implemented in the general education classroom.

In most instances the burden of proof is on the school system to demonstrate that it has made reasonable efforts and provided appropriate supplementary aids and services to the child before a court will endorse a segregated placement. Each case and each judicial decision will turn on the specific facts of the case including the child's needs and the types of supports the child needs in order to be educated in the nonsegregated environment. Additionally, the size and the resources of the school district may have an impact on how the court decides. A large school district with many resources may be required to invest more services and supports to maintain the nonsegregated placement than a smaller school district. Although costs can be a consideration in where a child receives his or her educational services, the United States Supreme Court has ruled that it can not be a factor in the ultimate provision of an appropriate education to a child with disabilities, no matter how small the school district may be.

About the author: Wayne Steedman, Esq. is a partner in the law firm of Callegary & Steedman, P.A. His practice is devoted primarily to the representation of children with disabilities. In addition to his law degree, Mr. Steedman has a Masters degree in social work from the University of Maryland School of Social Work. Prior to practicing law, Mr. Steedman was in charge of the clinical treatment program at the Forbush School at Shepherd Pratt Hospital where he was employed for more than 20 years. Additionally he served for approximately ten years as a Due Process Hearing officer in special education cases. To contact Mr. Steedman, please visit his website at:

This article was reprinted from: Special Child. for general information only. The information should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this information are encouraged to seek independent counsel for advice regarding their individual legal issues.