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COPYRIGHT 2006 Pro-Ed
The least restrictive environment provision of the Individuals with Disabilities Education Act (IDEA, 1997) is an example of how American laws written to address structural barriers for people with disabilities may be constrained or circumvented by the American rights-based legal system. This article provides a background on rights-based and social relations approaches to policy implementation, reviews the relevant case law, reviews the economic implications of the IDEA, addresses institutional structural factors and concludes with policy recommendations.
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The American legal system is a rights-based system embedded in the belief that equal rights are served through protecting the civil rights of individual citizens. To further the goal of equality for all--and justified by historic inequities experienced by minorities and women--the Supreme Court has held that members of some groups may receive special protections that are unavailable to other citizens (Brown v. Board of Education, 1954; Craig v. Boren, 1976; Frontiero v. Richardson, 1973; Reed v. Reed, 1971). Laws that protect the rights of people with disabilities have been based on these civil rights cases (e.g., Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Individuals with Disabilities Education Act of 1990). Although these laws have arguably been developed to address structural barriers for people with disabilities, they are implemented within a rights-based legal system. A rights-based approach has often been a first step to ensure that the rights of some groups of individuals are protected. However, it may ultimately be limiting. An example of this limitation is discussed later by reviewing the implementation of the Individual with Disabilities Education Act's requirement to educate children with disabilities in the least restrictive environment (LRE).
Background
The Individuals with Disabilities Education Act (IDEA; 1997) dictates that all children with disabilities be educated in the "least restrictive environment." The LRE provision requires that, to the maximum extent appropriate, children with disabilities including children in public and private institutions or other care facilities are educated with children who are not disabled ... or removal of children with disabilities from the regular education environment occurs only when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (IDEA, 1997) In the case of the IDEA, the individual rights of particular students are emphasized. However, state and local school districts continue to exhibit a preference toward more or less inclusion depending on economic and structural factors, rather than on the needs of the individual child (Hasazi, Johnston, Liggett, & Schattman, 1994). As a result, in practice the IDEA often fails to address conditions that are fundamental to improving both the special and the general education systems for all students.
Although the legal system has helped to ensure that children with disabilities receive an education, its ability to ensure the inclusion of students with disabilities in "the least restrictive environment" has, at times, been limited by this rights-based approach to law. In other words, because much of the oversight of the IDEA has come from individual legal claims, many of the systemic issues that must be resolved to better include all students with disabilities with their nondisabled peers have not been well addressed. The most effective way to ensure that all children with disabilities are appropriately educated in the public schools in the LRE is not to identify children with disabilities as a separate class of citizens with different rights, but rather to extend their rights to all children and to consider all children when addressing the needs of children who have disabilities. This approach will require a rebalancing of rights-based law and social relations assumptions in the implementation of the IDEA (1997) and Section 504 of the Rehabilitation Act (1973). Furthermore, this change should not limit the rights of individual students with disabilities but, rather, should extend their legal protections and educational rights to all students as well as help to ensure that appropriate systemic changes are made to address not only the legal rights of children whose parents have the ability to sue the school system but also those of all students with special educational needs.
The IDEA provides a preference for educating children with special needs in the least restrictive educational environment in which they can receive an appropriate education for several reasons. First, the law suggests that inclusion will help improve both the cognitive education and the social relationships of children with disabilities It does not address the needs of children without disabilities to learn to relate to people with disabilities. The IDEA has been interpreted differently in each federal circuit court because, as noted earlier, these court decisions are based on the individual rights of the students for whom claims have been brought. Therefore, the extent to which IDEA can accomplish its goals of ensuring the education of students with disabilities in the LRE varies depending on the district in which a child resides. Also, the actual implementation of the law depends on who is making the ultimate decision regarding an inclusive or restrictive setting for each disabled child. Thus, even within school districts, different administrators may provide different placement options for similarly situated students with special needs (Palley, 2003).
One of the unintended consequences of the LRE mandate is that it may teach the peers of children with disabilities to live and, ultimately, to work with people who have disabilities. In other words, one of the outcomes of this law may be that it helps change the social relations between children with disabilities and their peers. However, at present, there are stigmas to being identified as a child with a disability, and this may limit the potential of some students with disabilities. Furthermore, parents may resist having their children labeled as students with disabilities, thus limiting their children's access to special education services.
Ultimately, many children may need additional assistance or a specialized educational placement to make meaningful progress in school (Board of Education of Hendrick Hudson School District vs. Rowley, 1982)....
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