Least Restrictive Environment

1. Least Restrictive Environment Sherrie Brown Special Education and the Law Winter Quarter 2008

2. Least Restrictive Environment (LRE) • Constitutional basis for LRE • Statutory requirements—IDEA and Section 504 • Judicial interpretations • Policy reasons behind “rebuttable presumption” concept

3. Constitutional & Legislative Basis for LRE • Legal doctrine that even if legislative purpose of government action is legitimate—e.g., promoting public health and safety—purpose may not be accomplished by means that broadly limit personal liberties if can be accomplished in less oppressive or restrictive manner. • State is forbidden from using a bazooka to kill a fly on a citizen’s back if a fly swatter would accomplish the task. • Historical treatment of disabled individuals in this country?

4. IDEA mandates LRE • Unlike FAPE and related services, LRE is not defined anywhere in the statute. • Supremes have not ruled on LRE and the lower courts differ on what standard to apply. • IDEA regulations include guidelines. • However, how are mainstreaming, inclusion, LRE different…or are they?

5. How do you define these terms? • Mainstreaming: not in the IDEA but has come to mean placement in a regular education setting. In some or all of school activities. • Inclusion or integrated education: child in the regular classroom but with adaptive curriculum. • Both are examples of the LEAST RESTRICTIVE ENVIRONMENT CONTINUUM. • From Colker and Milani (2006) Everyday Law for Individuals with Disabilities.

6. LRE Statutory Guidance… • Children with disabilities to be educated in their neighborhood schools, in the same setting as their non-disabled peers to the maximum extent appropriate. • Therefore, it is not an absolute requirement that all children be served in neighborhood and/or “regular” setting.

7. Federal Regulations… • [T]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are non-disabled, and • That special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and servicescannot be achieved satisfactorily. 34 C.F.R. 300.550(b) • Continuum of Alternative Placements must be available. 34 C.F.R. 300.551

8. Washington State Regulations: • If placement is not the general educational environment, school must demonstrate that the nature or severity of the student’s disability is such that his or her education in general classes with the use of supplementary aids and services cannot be achieved satisfactorily. WAC 392-172-172. • The appropriate placement must be based on -- among other things -- “a consideration of any potential harmful effect on the student or on the quality of services which he or she needs.” WAC 392-172-180(2-5)

9. So is it really so easy? • FAPE vs. LRE • What role does “cost” play? • How many supplementary aids/services are required? • Burden of proof? • Rebuttable presumption concept • What would you establish as standards? • Trial Placements?

10. Final thoughts on the LRE issue… • Comments to IDEA: Appendix A to Part C of 34 CFR • See handout… • Courts likely to support regular education classroom placement UNLESS • Child harmed medically, emotionally or psychologically by the regular placement. • Courts willing to remove a child from regular education when severely disruptive or dangerous--unless they are elementary children and then tough.