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Does "Full Inclusion" Violate Federal Law?
by Bev Johns
We face an increasing problem of a local school or school district adopting
a philosophy of "full inclusion". For the following reasons "full
inclusion" violates Federal law and Federal regulations, despite some
school administrators saying all students with disabilities have the
"right" to full inclusion in the regular classroom.
THE "right" in IDEA (the Individuals with Disabilities Education Act, the
Federal special education law) and the most basic legal concept and very
basis of IDEA is Free Appropriate Public Education (FAPE).
Each of those words has meaning. There is no charge for the schooling of
any child with a disability (Free). That schooling shall be individually
tailored to the needs of a child, but cannot be so extensive or expensive
as to do absolutely everything that may be of educational benefit, and
there is no one educational placement for every child (Appropriate).
This right is for schooling paid for with taxes (Public). And IDEA's
greatest emphasis is on the imparting or acquisition of knowledge and
skills (Education), not on a whole variety of other subjects.
A secondary but important right is LRE, but again LRE is individually
determined. In both the legislative language of IDEA and in its regulations
is the concept of the "continuum of alternative placements". In fact the
"continuum of alternative placements" is a REQUIRED part of LRE.
The IDEA Regulations have headlines beginning each section of the regs.
Under "LEAST RESTRICTIVE ENVIRONMENT (LRE)" are seven subparts.
The first is
"Sec. 300.550 General LRE Requirements". The second is "Sec. 300.551
Continuum of Alternative Placements" and it requires under (a) that "Each
public agency shall ensure that a continuum of alternative placements is
available to meet the needs of children with disabilities for special
education and related services."
This is a mandatory requirement: the words are "shall ensure". The
"continuum required" (again the word is "required") is defined in (b) as
"alternative placements" including "regular classes, special classes,
special schools" etc.
Of course the word "inclusion" is not in IDEA and not in the IDEA
Regulations. In all the decisions in all the special ed cases only one
District court Judge has ever declared that inclusion is a right (10 years
ago), and that statement was NOT included when the Circuit (Federal
Appellate) court issued a decision on appeal of the same case.
Although the Judge in the Corey H. case stated that LRE is the "foremost"
requirement of IDEA, no Federal Appellate Court has ever so ruled. In fact
these courts have consistently held that (when they conflict) FAPE
overrules LRE, that FAPE is more important than LRE.
In simplistic tems, that "education" is more important than "placement" in
the regular classroom.
In Rowley, the U.S. Supreme Court ruled that the IEP team decision must be
based on what will provide "educational benefit".
Who decides placement for an individual student along the required
"continuum of alternative placements"? ONLY the IEP team - NOT a school
principal, not a school superintendent, not a school board - has any
authority whatever to make such placement decisions. And that decision is
to be made by the IEP Team only AFTER it makes almost all other decisions
about that particular child.
There is no "right" whatsoever for a school, a school district, or even a
State to adopt a philosophy of "full inclusion" and to place every student
with a disability (or almost every student with a disability) in the
regular classroom. As a matter of current law and regulation that action
would violate the law.
