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 requirementsIDEA 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 legitimatee.g.,
  promoting public health and safetypurpose 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 citizens 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
  differentor 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

• To 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 services
  cannot 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 students 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.