Incompatability Of REI And Inclusion With The Mandates Of IDEA

The Regular Education Initiative (“REI”) and the Inclusion movement are philosophies which seek to draw greater numbers of disabled children into the regular education setting than are currently placed by the public school system. Many proponents of REI believe that far too many children are identified with disabilities which result in placement in segregated settings such as self-contained classrooms or wholly segregated schools.[1] as a result, public school systems have fostered “parallel systems” which ought to give way to a “unidimensional” system in which “each student is valued, successful to the greatest extent of their abilities, and treated and taught as an individual.”[2] The questions raised by REI have spurred an explosion in the number of legal battles challenging the sufficiency of educational programs for individual children with disabilities which either do not provide for integration or “mainstreaming,” or do not provide it to a desired degree.

Federal and state courts considering this issue have yet to form any uniform and coherent principle for adjudging the appropriateness of any given mainstreaming proposal in a given program. Despite this lack of uniformity, the various approaches suggest that REI and Inclusion are not in keeping with the basic test for compliance with IDEA, as set forth by the Supreme Court in Board of Education v. Rowley, 102 S.Ct. 3034 (1982). The Rowley standard is a two-part test which recognizes that if a school district has complied with the procedural mandates of IDEA, and has developed an individualized education plan (“IEP”” for a child that is “reasonably calculated to confer educational benefits” on the child, compliance with the IDEA is almost always assured.[3] In subsequent lower court decisions, one can discern three fundamental flaws in the REI and Inclusion approaches under Rowley: (1) that automatic placement of children in the mainstream is contrary to IDEA procedures which require tailoring education to the individual, unique needs of the child; (2) that the IDEA’s definition of appropriateness should always balance with the need for mainstreaming against the larger purpose of ensuring that a given placement confers educational benefit; and (3) that methodology for educating disabled children is the particular province of the states, rather than the courts.

I. Procedural Concerns

A major concern of REI proponents is the so-called “over-identification” of disabled children under the current special education regime. One survey of REI studies noted that one expert complained of the explosion in the numbers of children identified with handicaps, and suggested that caps be placed o the numbers of children identified with particular disabilities.[4] In assessing how REI might deal with new potentially-disabled students, another expert noted, “The time to provide this assistance to the student is when it is needed, not after they have been formally assessed and identified and somehow labeled.[5] Thus, according to REI proponents, a system can be developed in which certain disabled children will be instantly served without the current process of case study evaluations, multidisciplinary conferences, IEPs and potentially segregating placements.

The views expressed by such advocates, however, are entirely at odds with the mandates of the IDEA. Indeed, the whole spirit of the IDEA is gauged toward the implementation of “a free appropriate public education with emphasizes special education and related services designed to meet [disabled children’s] unique needs…”[6] The Supreme Court has further indicated that the IEP, which tailors educational services to children, is the predicate to a free appropriate education as mandated by the Act.[7] Thus it is clear that the process of assessments, conferences, etc., go to the very heart of the procedures that are statutorily mandated for states which choose to receive aid under the IDEA.

In addition, the assistant Secretary of Education overseeing the Office of Special Education and Rehabilitative Services, Robert Davila, has stated unequivocally that automatic inclusion of disabled is contrary to the procedures mandated by the IDEA. Secretary Davila made clear that “decisions about the provision of services, including the decision about where those services are provided, [will] be made on a case-by-case basis, depending on the needs of each individual child.”[8] In stressing the individualized nature of the placement decision, Davila likewise noted that any assessment of LRE “must be based on the individual needs of each child, as described and specified in his or her IEP.”[9] Davila implicitly rejected the REI principle that particular groups and types of disabled children will automatically benefit from regular education placement by noting that placement could not be based solely on factors such as “the category of the child’s disability…”[10] Placement becomes a response to the totality of a child’s make-up, not a pre-determined answer to one aspect (albeit an important one) of the child’s needs.[11] Thus in contrast to the presupposition of REI that a broad “trait” can be addressed in one setting, IDEA mandates that no setting is appropriate until a meticulous examination of an individual student’s entire make-up is completed.

II. Substantive Concerns

Under the IDEA and its implementing regulations, states are required, as a condition of receiving federal IDEA funds, to ensure that all disabled children receive a “free appropriate public education” that is tailored to the unique needs of each child.[12] As part of implementing this educational access, states must ensure when implementing a program for a particular child, that “to the maximum extent appropriate” the child is “educated with children who are not disabled.“[13] The child may only be placed in a separate self-contained class or segregated facility “when the nature of severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily…”[14] Within the IDEA, these “least restrictive environment (LRE)” provisions clearly indicate that a state agency has not provided a free appropriate public education to a disabled child if the Individualized Education Plan (IEP)[15] has not made provision for mainstreaming to the “maximum extent appropriate.”

In construing these provisions, several courts have realized that the LRE provisions of the IDEA are not considered independent of the fundamental goal of providing an appropriate public education to a disabled child. Indeed, as the Seventh Circuit has recognized, mainstreaming “must be weighed in tandem with the Act’s principal goal of ensuring that the public schools provide handicapped children with a free appropriate education.”[16] Likewise, the Fifth Circuit has noted that despite Congress’ “strong preference in favor of mainstreaming,” it cannot be separated from the obligation to create a tailor-made placement for each disabled child.

This construction of the LRE requirement is in part attributable to the broad sweep of the term “free appropriate public education” and the generalized definition provided by the Supreme Court in Rowley. There, the Court held that this definition was satisfied when a school provided “personalized instruction with sufficient support services to permit the child to benefit educationally from the instruction.”[17] Thus the overarching purpose for the courts is to determine in light of all factors, mainstreaming included, whether the given IEP with confer some benefit upon the child in questions. LRE therefore becomes a factor in determining whether the given IEP is appropriate, not an end in and of itself.”[18] Furthermore, LRE under the IDEA is not set forth in absolute terms: like the concept of free appropriate public education, LRE changes from child to child. Even prior to Rowley, authorities recognized the “least restrictive environment” is a hybrid in that it changes with any given situation and must be uniquely suited to each specific child, condition and needs.[19] Therefore under the IDEA scheme, if a child’s IEP sets forth a program chosen from the continuum of placements which confers some educational benefit in the least restrictive environment, the IEP by necessity will have a component which mainstreams to the “maximum extent appropriate.” In contrast, without proper consideration for the LRE component in a child’s IEP, the IEP will never be reasonably calculated to confer educational benefit as it will necessarily fail to provide a free appropriate education.[20]

But this standard does not mean that if a child receives miniscule benefit in a fully mainstreamed placement that this is necessarily the least restrictive one which will confer benefit. As the First Circuit has noted, an appropriate placement decision “requires a balancing of the marginal benefits to be gained or lost on both sides of the maximum benefit/least restrictive fulcrum.”[21] In keeping with this observation, the Eleventh Circuit used a two-step process to achieve the correct balance between benefit and LRE by asking first whether a fully mainstreamed placement could be satisfactorily implemented, then asking whether the proposed placement involves mainstreaming to the maximum extent appropriate.[22] This court has also properly recognized that even if the child can be mainstreamed and receive meaningful benefit, a subsequent balancing must occur between the needs of this particular child and the needs of the other non-disabled students in the classroom.[23] Thus in comparison to the unbounded enthusiasm for mainstreaming by proponents of the REI, analysis of the IDEA provisions demonstrates an effort to balance the legitimate need of the disabled child to have maximum contact with his non-disabled peers against the need of all other children also to have a satisfactory education.[24]

III. Methodological Concerns

Finally, REI components argue that one of the central causes in the development of “parallel” public education systems under IDEA lay in educational methodology. Advocates and critics of REI and Inclusion are generally in agreement with teaching methods and curriculum will require profound changes, sometimes requiring vast sums of money.[25] Indeed, much of the REI approach would require not merely the introduction of new teaching methods into the schools, but also a vast restructuring of how teachers themselves are educated and trained.[26] As difficult and complex as this task may seem, it becomes all the more so in the face of an almost uniform judicial recognition that issues of methodology are the peculiar province of educational authorities and cannot be mandated by judicial fiat under the IDEA.

Despite the length of the IDEA, it is clearly not designed to dictate methods of instruction to state educational agencies. Indeed, the vast majority of the IDEA mandates are framed solely as objectives, and do not specifically mandate how a given state agency is to achieve them, aside from compliance with certain deadlines in the basic implementation of programs.[27] The Supreme Court has recognized this in setting forth its two-part test for determining whether a free appropriate public education is being provided. Like the IDEA, the Rowley test is clearly a “hands-off” approach: so long as the state has complied with the IDEA procedures and the IEP in questions is “reasonably calculated” to confer educational benefits, the state has complied with the Act.[28] And in considering judicial review under the IDEA, the Court explicitly cautioned the lower courts not “to substitute their own notions of sound educational policy, for those of the school authorities which they review.”[29]

In subsequent years, lower courts have been more than willing to uphold the Rowley standard of review. The Second Circuit put the matter succinctly, stating that “[d]eference is owed to state and local agencies having expertise in the formulation for educational programs for the handicapped.”[30] So long as the school has set up programs and options to afford disabled children opportunities to receive education, “[t]he local educational authorities can make choices… without the courts intervening in their choices…”[31] But in an even more deferential approach, the Seventh Circuit has also noted that if a given district has complied with all IDEA procedures and developed an IEP which is “reasonably calculated” to confer educational benefit, “parents [cannot] force the adoption of what they perceived to be an even more effective educational program.”[32] Thus absent evidence of clear failure to adhere to mandated procedures such as parental involvement at IEP meetings, or evidence which clearly shows that an IEP will not confer educational benefits, a court will seldom question the means by which an educational agency implements that IEP.[33]

With specific reference to the LRE requirement of the IDEA, the Seventh Circuit’s decision in Lachman v. Illinois State Board of Education indicates that the methodology analysis of is no different than the analysis in any other type of special education case. In Lachman, the court refused to find that the IEP in question was inappropriate due to the district’s desire to employ a “total communication” method for a deaf child, as opposed to “cued speech” as requested by the parents. In response to the parents’ argument that the district method id not allow appropriate mainstreaming, the court found that the parents’ argument would be valid only if it demonstrated that the use of total communication would deprive the child of mainstreaming opportunities he would otherwise have with the cued speech approach.[34] Absent this showing, the court could not find that the IEP was not reasonably calculated to confer educational benefit upon the child.[35] In the wake of decisions such as Lachman, it is apparent that courts will not engage in a type of judicial activism in which groups, such as advocates of inclusion, are given license to perform methodological surgery on a given school district in any attempt to implement reforms conducive to the philosophy of REI and inclusion.[36] Thus unless REI receives the voluntary backing of agencies responsible for implementing education to the disabled (or radically new legislation is passed with pre-empts IDEA), REI is unlikely to find immediate institutional support.

IV. Conclusions

In light of the scheme implemented under the IDEA, and the courts’ interpretation of this scheme, the future of REI is somewhat doubtful absent widespread support among educational agencies. But even in the event of widespread support, it is doubtful that REI will be deemed an appropriate means of implementing the mandates of the IDEA. Even though courts are reluctant to intervene in the development of method and policy among individual educational agencies, the courts will do so if the methods used clearly contravene the spirit and purpose of the idea in implementing a free appropriate public education for disabled children. REI and Inclusion are based on certain presumptions which fail both parts of the Rowley two-part test for compliance with the IDEA. By presuming that a placement can be erected which will automatically address a broad and categorical trait of disability, REI fails to comply with a basic procedure of IDEA which requires that placement be made only upon an assessment of the individual child’s unique needs. Further, by presuming that the placement in a regular setting should be a controlling factor in the determination of expected educational benefit, REI would fail to develop a program that properly balances LRE against the totality of benefit that a particular child may derive from a given placement. In doing so, this method would ignore the other Rowley requirement that an IEP be reasonably calculated to confer educational benefit upon the child. As such, these consideration greatly reduce the likelihood of REI success in the courts. In the final analysis, REI and the Inclusion “movement” are unlikely to achieve any meaningful success so long as IDEA is the preferred means of delivering educational services to disabled children.


[1] James M. Kauffman et al., Arguable Assumptions Underlying the Regular Education Initiative, Journal of Learning Disabilities, Jan. 1988 at 6, 7.

[2] Elizabeth L. Pearman et al., Educating All Students in School: Attitudes and Beliefs About Inclusion, Education and Training in Mental Retardation, June 1992 at 176, 180.

[3] Rowley, 102 S.Ct. at 3051.

[4] Kauffman, at 6-7.

[5] Pearman, at 181.

[6] 20 U.S.C.S. §1400(c) (1988 &. Supp. 1992).

[7] Rowley, 102 S.Ct. at 3038.

[8] Letter to Rep. Martin Frost, 18 IDELR 594, 595 (OSERS Dec. 24, 1991).

[9] Letter to Re. Bill Gooding, IDELR 213, (OSERS July 11, 1991).

[10] Id.

[11] In fact, the whole rationale behind the IDEA’s mandate for a continuum of educational placements is expressly to recognize that each child’s placement must be one that hinges on the child’s individual needs, and that no one type of placement can possibly be responsive to the range of needs that any group of children may have, even within the same disability category. See 34 C.F.R. §300.551. An examination of any state’s approved list of private day and residential placements is also an implicit recognition of this fact.

[12] See 20 U.S.C.S. §§1401(18), 1421(1) (1988 & Supp. 1992).

[13] 20 U.S.C.S. §1412(5)(B).

[14] Id.

[15] See 20 U.S.C.S. §1401(20) (1988 & Supp. 1992).

[16] Lachman v. Illinois State Board of Education, 852 F.2d 290, 296 (7th Cir. 1988).

[17] Rowley, 102 S.Ct. at 3049.

[18] One scholar has noted that the Rowley standard creates a significant problem where more than one placement appears appropriate. See Linda S. Abrahamson, the Probative Weight of the “Mainstreaming” Requirement Under the EHA, 12 N. Ill. U.L. Rev. 93, 124-25 (1991). As will be noted infra, several courts have taken steps to assess this problem.

[19] Untitled SEA Decision, 3 IHLR 501:174, 176 (1979(?)).

[20] See e.g., Greer v Rome City School District, 950 F.2d 688, 698-99 (11th Cir. 1991).

[21] Roland M. v Concord School Committee, 910 F.2d 983, 993 (1st Cir. 1990). It must be noted, however, that the court here considered an IEP in Massachusetts, whose law required that a disabled child’s educational progress be maximized. Fro a somewhat similar balancing analysis in a state under the Rowley standard, see DeVries v Fairfax Country School Board, 882 F.2d 876, 879-80 (4th Cir. 1989).

[22] Greer, 950 F.2d at 696. The Greer analysis seems to most closely adhere to the IDEA which requires a child to be paced in a separate classroom or facility only if the fully mainstreamed placement “cannot be achieved satisfactorily…” Accord Daniel R.R., 874 F.2d at 1048.

[23] Greer, 950 F.2d at 696. This includes financial considerations. The court noted that if the financial outlays necessary to allow the disabled child to attend his home school are so great as to impact the education of all others in the school or district, then full mainstreaming may be improper. Id.

[24] Despite the apparent balancing, one district court has held that a nine-year-old with an I.Q. of 44 should be placed in a full-time regular education setting in light of a vague finding of educational progress in which the child demonstrated increased self-esteem and “full participation in all activities.” Most significantly, the court found that despite one instance in which the child was unaware that she was “reading,” her Hebrew textbook upside-down, she nevertheless received benefit from positive interaction with a non-disabled peer who pointed out to the child that her book was upside-down. Board of Education v Holand, 786 F.Supp. 874, 881 (E.D.Cal. 1992). The court’s description of the witnesses clearly indicates that the parents’ experts were inclusionists. Id.

[25] See e.g., Carnine and Kameenui, The General Education Initiative and Children with Special Needs: A False Dilemma in the Face of True Problems, Journal of Learning Disabilities, March 1990, at 141, 142, Pearson at 181.

[26] Pearson, at 181.

[27] See, e.g. 20 U.S.C.S. §1412 (1988 & Supp. 1992) which sets forth timelines for the implementation of a state’s programs and what those programs must contain. Note that these provisions are mandatory goals, rather than mandatory methods for achieving those goals.

[28] Rowley, 102 S.Ct. at 3051.

[29] Id.

[30] Briggs v Board of Education, 883 F.2d 688, 693 (2d Cir. 1989).

[31] Straube v Florida Union Free School District, 801 F.Supp. 1164, 1176 (S.D.N.Y. 1992).

[32]Board of Education of Community Consolidated School District 21 v Illinois State Board of Education (Brozer), 938 F.2d 712, 717 (7th Cir. 1991).

[33] For example in Brozer, the court found that the IEP could not confer benefits as it failed to consider the hostility of the parents to the proposed placement. Brozer, 938 F.2d at 718. In Straube, the district court found that the IEP in question was also not calculated to confer benefits in that it was identical to a program which had already been recognized as inappropriate in a prior due process hearing. Straube, 801 F.Supp. at 1179.

[34] Lachman, 852 F.2d at 296.

[35] Id.

[36] Unless of course the group is advocating in the Eastern District of California. See Holland, supra, note 25