Challenges of Rights-Based Law: Implementing the Least Restrictive Environment Mandate By Palley, Eli a!

eth "he least restrictive environment provision of the Individ#als with $isa!ilities Ed#cation %ct &I$E%, '(()* is an e+ample of how %merican laws written to address str#ct#ral !arriers for people with disa!ilities may !e constrained or circ#mvented !y the %merican rights-!ased legal system, "his article provides a !ac-gro#nd on rights-!ased and social relations approaches to policy implementation, reviews the relevant case law, reviews the economic implications of the I$E%, addresses instit#tional str#ct#ral factors and concl#des with policy recommendations, "he %merican legal system is a rights-!ased system em!edded in the !elief that e.#al rights are served thro#gh protecting the civil rights of individ#al citi ens, "o f#rther the goal of e.#ality for all-and /#stified !y historic ine.#ities e+perienced !y minorities and women-the 0#preme Co#rt has held that mem!ers of some gro#ps may receive special protections that are #navaila!le to other citi ens &Brown v, Board of Ed#cation, '(123 Craig v, Boren, '()43 5rontiero v, Richardson, '()63 Reed v, Reed, '()'*, Laws that protect the rights of people with disa!ilities have !een !ased on these civil rights cases &e,g,, section 172 of the Reha!ilitation %ct of '()6, the %mericans with $isa!ilities %ct of '((7, the Individ#als with $isa!ilities Ed#cation %ct of '((7*, %ltho#gh these laws have arg#a!ly !een developed to address str#ct#ral !arriers for people with disa!ilities, they are implemented within a rights!ased legal system, % rights-!ased approach has often !een a first step to ens#re that the rights of some gro#ps of individ#als are protected, 8owever, it may #ltimately !e limiting, %n e+ample of this limitation is disc#ssed later !y reviewing the implementation of the Individ#al with $isa!ilities Ed#cation %ct9s re.#irement to ed#cate children with disa!ilities in the least restrictive environment &LRE*, Bac-gro#nd "he Individ#als with $isa!ilities Ed#cation %ct &I$E%3 '(()* dictates that all children with disa!ilities !e ed#cated in the :least restrictive environment,: "he LRE provision re.#ires that, to the ma+im#m e+tent appropriate, children with disa!ilities incl#ding children in p#!lic and private instit#tions or other care facilities are ed#cated with children who are not disa!led,,, or removal of children with disa!ilities from the reg#lar ed#cation environment occ#rs only when the nat#re and severity of the disa!ility is s#ch that ed#cation in reg#lar classes with the #se of s#pplementary aids and services cannot !e achieved satisfactorily, &I$E%, '(()* In the case of the I$E%, the individ#al rights of partic#lar st#dents are emphasi ed, 8owever, state and local school districts contin#e to e+hi!it a preference toward more or less incl#sion depending on economic and str#ct#ral factors, rather than on the needs of the individ#al child &8asa i, ;ohnston, Liggett, < 0chattman, '((2*, %s a res#lt, in practice the I$E% often fails to address conditions that are f#ndamental to improving !oth the special and the general ed#cation systems for all st#dents,

%ltho#gh the legal system has helped to ens#re that children with disa!ilities receive an ed#cation, its a!ility to ens#re the incl#sion of st#dents with disa!ilities in :the least restrictive environment: has, at times, !een limited !y this rights!ased approach to law, In other words, !eca#se m#ch of the oversight of the I$E% has come from individ#al legal claims, many of the systemic iss#es that m#st !e resolved to !etter incl#de all st#dents with disa!ilities with their nondisa!led peers have not !een well addressed, "he most effective way to ens#re that all children with disa!ilities are appropriately ed#cated in the p#!lic schools in the LRE is not to identify children with disa!ilities as a separate class of citi ens with different rights, !#t rather to e+tend their rights to all children and to consider all children when addressing the needs of children who have disa!ilities, "his approach will re.#ire a re!alancing of rights-!ased law and social relations ass#mptions in the implementation of the I$E% &'(()* and section 172 of the Reha!ilitation %ct &'()6*, 5#rthermore, this change sho#ld not limit the rights of individ#al st#dents with disa!ilities !#t, rather, sho#ld e+tend their legal protections and ed#cational rights to all st#dents as well as help to ens#re that appropriate systemic changes are made to address not only the legal rights of children whose parents have the a!ility to s#e the school system !#t also those of all st#dents with special ed#cational needs, "he I$E% provides a preference for ed#cating children with special needs in the least restrictive ed#cational environment in which they can receive an appropriate ed#cation for several reasons, 5irst, the law s#ggests that incl#sion will help improve !oth the cognitive ed#cation and the social relationships of children with disa!ilities It does not address the needs of children witho#t disa!ilities to learn to relate to people with disa!ilities, "he I$E% has !een interpreted differently in each federal circ#it co#rt !eca#se, as noted earlier, these co#rt decisions are !ased on the individ#al rights of the st#dents for whom claims have !een !ro#ght, "herefore, the e+tent to which I$E% can accomplish its goals of ens#ring the ed#cation of st#dents with disa!ilities in the LRE varies depending on the district in which a child resides, %lso, the act#al implementation of the law depends on who is ma-ing the #ltimate decision regarding an incl#sive or restrictive setting for each disa!led child, "h#s, even within school districts, different administrators may provide different placement options for similarly sit#ated st#dents with special needs &Palley, =776*, >ne of the #nintended conse.#ences of the LRE mandate is that it may teach the peers of children with disa!ilities to live and, #ltimately, to wor- with people who have disa!ilities, In other words, one of the o#tcomes of this law may !e that it helps change the social relations !etween children with disa!ilities and their peers, 8owever, at present, there are stigmas to !eing identified as a child with a disa!ility, and this may limit the potential of some st#dents with disa!ilities, 5#rthermore, parents may resist having their children la!eled as st#dents with disa!ilities, th#s limiting their children9s access to special ed#cation services, ?ltimately, many children may need additional assistance or a speciali ed ed#cational placement to ma-e meaningf#l progress in school &Board of Ed#cation of8endric- 8#dson 0chool $istrict vs, Rowley, '(@=*, "his need does not necessarily re.#ire the #se of la!els, 8owever, there are many instit#tional o!stacles that have made, and may contin#e to ma-e, this idea diffic#lt to implement, "his article e+amines the conflict !etween the concept of LRE, which seems to !e em!edded in social relations theory, and o#r legal systems rights-!ased approach to law, In this conte+t, several factors that infl#ence implementation of this law, incl#ding economics and instit#tional and str#ct#ral factors, are disc#ssed,

% Rights-Based Aers#s 0ocial Relations %pproach: ?nderstanding the Basis of the I$E% "he I$E% is !ased on a melding of rights-!ased legal ass#mptions and social relations concepts, "he rights-!ased approach to law ass#mes that every!ody has legal rights and that :the stat#s .#o m#st !e changed if it denies rights to individ#als: &Minow, '((7, p, '7@*, 0ome feminist critics of this approach to law have arg#ed that it :#pholdBsC the c#rrent str#ct#res of power in society: &0chwart man, '(((, p, =4* and have noted that :law protects 9rights9-!#t mostly it protects the 9rights9 of those who have power: &MacDinnon < $wor-in, '(@@, pp, ')-'@*, Eonetheless, it is the !asis of the ?,0, legal system, and the ass#mption that #ndergirds the need to protect the civil rights of individ#al citi ens, Beca#se of this ass#mption, individ#al cases in several of the federal circ#it co#rts have !een decided !ased on the individ#al rights of the children for whom the cases were !ro#ght, "his method of decision ma-ing does not necessarily lead to the widespread systemic changes that are necessary to ens#re that all children with disa!ilities are ed#cated consistent with the LRE provision, % social relations approach can !e #sed to e+amine the factors that may infl#ence the implementation of the LRE mandate !#t are not considered #sing a rights-!ased approach to law, 0ocial relations theory ass#mes a connectedness !etween people and that people live in relationship to one another, 5#rthermore, according to social relations theory, :the attri!#tion of differences hides the power of those who classify and of instit#tional arrangements that enshrine one type of person as the norm, and then treat classifications of difference as inherent and nat#ral while de!asing those defined as different: &Minow, '((7, p, '''*, %s a res#lt, the very nat#re of rights-!ased law, ass#ming that one gro#p classifies :others,: limits the relationship !etween the two gro#ps and the manner in which the needs of the classified gro#p are #nderstood and can !e addressed, 0ocial relations theory springs o#t of gender and other feminist theories and, as a res#lt, m#ch of the literat#re on social relations is !ased on gender &5oster, '(((3Py-e, '((43 Fa/ice- < Calasanti, '((@*, Gender theory helps #s :#nderstand gender, not to mention other identities s#ch as se+#ality and race, to !e social and historical processes that create m#ltiple meanings in m#ltiple sites, ones that occ#r on many levels of social interaction,: Minow &'((7* e+tended this theoretical s#pposition to help #nderstand the impact of laws, incl#ding laws that affect people with disa!ilities, >thers whose research and writing have foc#sed on people with disa!ilities note that :there is ,,, an important e+tent to which disa!ility and handicap are socially constr#cted, %s a conse.#ence there is a range of possi!le definitions of each and proced#res of categori ation, which are #sed !y different people, in different conte+ts and for different p#rposes: &;en-ins, '((', p, 14'*, 5#rthermore, 8arry and %nderson &'((2* noted that the c#rrent social constr#ction of disa!ility in ed#cation law has led to disproportionate n#m!ers of %frican %merican children in p#!lic schools !eing la!eled and stigmati ed as disa!led, 0chnit &=776* noted that in recent h#man rights literat#re legislation that loo-s at the rights of people with disa!ilities o#tside the conte+t of the rights of nondisa!led people may reinforce paternalistic traditions toward people with disa!ilities, Rio#+ &=776* f#rther noted that the way in which disa!ility laws and disa!ility legislation are constr#ed may either facilitate or inhi!it the integration of people with disa!ilities into the mainstream, In other words, social relations are affected !y the ways in which laws are constr#cted and implemented,

Case Law Every state is re.#ired to ens#re that a st#dent who has disa!ilities receives a free p#!lic ed#cation in the LRE as defined !y the I$E%, "he phrase least restrictive environment has !een interpreted differently !y several of the federal circ#it co#rts, Beca#se the 0#preme Co#rt has neglected to address this iss#e, the re.#irements necessary to ens#re that st#dents with disa!ilities are ed#cated in theLRE remain imprecise and vary from state to state and within states, "he Co#rt of %ppeals for the 0i+th Circ#it was the first federal circ#it co#rt to address this iss#e, In '(@6 the Roncher family challenged the Cincinnati 0chool $istrict !eca#se the district had placed their severely mentally retarded da#ghter in a separate school for children with disa!ilities and the Ronchers !elieved that she wo#ld !enefit from a more mainstream setting, "he case went thro#gh several stages !efore it reached the Co#rt of %ppeals for the 0i+th Circ#it, which fo#nd in favor of the parents, In this case, the 0i+th Circ#it Co#rt of %ppeals developed a test, now called the Roncher porta!ility test, to help co#rts determine when an incl#sive setting is appropriate for a child, "his test is !ased on a pres#mption that, when drafting the I$E%, Congress had a strong preference toward incl#ding children with disa!ilities with their nondisa!led peers &Roncher v, Halter, '(@6*, "he Roncher porta!ility test re.#ires the co#rt to determine :in a case where the segregated facility is considered s#perior ,,, whether the services that ma-e the segregated setting s#perior co#ld !e feasi!ly provided in a non-segregated setting, If they can, the placement in the segregated setting wo#ld !e inappropriate #nder the %ct: &Roncher v, Halter, '(@6, p, '741*, "his standard does not address the potential e+pense of providing services in a less segregated setting nor the instit#tional str#ct#res, s#ch as teacher training and physical space, that may !e necessary to ens#re that the services can !e provided in a less restrictive setting, %ccording to a rights-!ased approach to law, these factors need not !e considered, !eca#se the decision in the case is !ased on the rights of the individ#al st#dent for whom the case was !ro#ght, 8owever, these factors are clearly important when considering ongoing systemic changes that are necessary if all st#dents, even those who are #na!le to !ring s#it, are to !e provided with the same !enefits as the Ronchers9 child, In '(@( the Co#rt of %ppeals for the 5ifth Circ#it developed its own test to determine if the El Paso 0chool $istrict sho#ld !e allowed to remove a mentally retarded 4-year-old st#dent from a mainstream pre-indergarten setting in $aniel R,R, v, 0tate Board of Ed#cation &'(@(*, In contrast to the 0i+th Circ#it interpretation that there was a congressional preference toward incl#sion, the 5ifth Circ#it noted congressional vag#eness and interpreted this vag#eness as a congressional intent to leave iss#es of incl#sion #p to the local ed#cation agency9s discretion, "he 5ifth Circ#it decision stated that when the concepts of a free, appropriate p#!lic ed#cation and of the LRE are in conflict, it is more important to ens#re that the child receives a free, appropriate ed#cation than to ens#re an incl#sive placement &$aniel R,R, v, 0tate Board of Ed#cation, '(@(*, "he 5ifth Circ#its test to determine the appropriateness of an incl#sive setting re.#ires that co#rts e+amine whether the state has ta-en steps to provide s#pplementary aids and services and to modify the reg#lar ed#cation program when they mainstream handicapped children,,,, If the state is providing s#pplemental aids and services and is modifying its reg#lar ed#cation

program, we m#st e+amine whether its efforts are s#fficient, &$aniel R,R, v, 0tate Board of Ed#cation, '(@(, p, '72@* Ee+t, we e+amine whether the child will receive ed#cational !enefit from reg#lar ed#cation ,,,, He also m#st e+amine the child9s overall ed#cational e+perience in the mainstream environment !alancing the !enefits of reg#lar and special ed#cation for each individ#al child, 5inally, we as- what effect the handicapped child9s presence has on the reg#lar ed#cation environment and, th#s, on the ed#cation that the other st#dents are receiving, &$aniel R,R, v, 0tate Board of Ed#cation, '(@(, p, '72(* Last, :if we determine that ed#cation in the reg#lar ed#cation classroom cannot !e satisfactorily achieved, we ne+t as- whether the child has !een mainstreamed to the ma+im#m e+tent appropriate: &$aniel R,R, v, 0tate Board of Ed#cation, '(@(, p, '717*, Based on this test, the co#rt determined that it was accepta!le to place $aniel in a more restrictive setting, %gain, the decision was a rights-!ased decision, !ased #pon $aniel9s rights, and did not address the need for str#ct#ral changes, Beca#se the reason for individ#al cases is to address the individ#al needs of the children for whom the s#it is !ro#ght, this is not s#rprising, In 0acramento City ?nified 0chool $istrict Board of Ed#cation v, Rachel 8olland, &'((2*, the Co#rt of %ppeals for the Einth Circ#it developed another standard for determining the e+tent to which children with disa!ilities need to !e incl#ded with nondisa!led peers, Its test re.#ired school districts to &a* compare the !enefits of a reg#lar ed#cational setting with s#pplemental aids and !enefits to a segregated ed#cational setting, &!* identify the !enefits of nonacademic interactions with nonst#dents with disa!ilities, &c* determine whether the st#dents9 presence interferes with the teacher9s a!ility to teach other st#dents, and &d* determine if the cost is s#fficient to affect the services availa!le to other children, In 0acramento City ?nified 0chool $istrict Board of Ed#cation v, Rachel 8,, the Einth Circ#it Co#rt of %ppeals attempted to !alance the rights of the child with a disa!ility with those of other st#dents, "he decision and the standard that was developed in this case were !ased on the facts of the case that was !ro#ght !efore the co#rt, %s a res#lt of this case, the rights of other st#dents with disa!ilities who might receive great !enefit from !eing ed#cated with nondisa!led peers may have !een limited, Last, in '(() in 8artmann v, Lo#do#n Co#nty Board of Ed#cation, the Co#rt of %ppeals for the 5o#rth Circ#it adopted another test to determine the e+tent to which schools are re.#ired to provide incl#sive services for children with disa!ilities, In this case, an '' -year-old st#dent with a#tism, who was f#lly incl#ded and who had !oth an aide and a special teacher, !ecame disr#ptive to her peers, 8er parents did not want her removed from the reg#lar ed#cation setting, and the school intervened, "he parents challenged the school decision to place her in a more restrictive setting, and the case was appealed to the Co#rt of %ppeals for the 5o#rth Circ#it, "he co#rt noted three circ#mstances in which mainstreaming is not re.#ired: &a* when the st#dent receives no !enefit from a reg#lar ed#cation setting, &!* when the !enefits to a mainstream setting are o#tweighed !y the !enefits to a segregated ed#cation setting, and &c* when a st#dent is disr#ptive to the reg#lar ed#cation setting, %gain, !ased on the facts of this case, the rights of st#dents with disa!ilities to !e incl#ded in a nonrestrictive setting were limited, %s a res#lt of the different standards that are #sed !y federal circ#it co#rts, the e+tent to which co#rts show a preference toward incl#ding children with disa!ilities with their nondisa!led peers varies greatly, M#ch of this variation can !e traced to the facts of the cases that the

circ#it co#rts reviewed, %s a res#lt of the differing standards, the e+tent to which school districts and states have facilitated the incl#sion of st#dents with disa!ilities varies greatly, Moreover, !eca#se none of these cases were class actions, the decisions will not necessarily lead to str#ct#ral changes in the overall system !#t rather to improvements in the rights of individ#al children in a system not necessarily set #p to incl#de them in the LRE, %s a res#lt, other children will li-ely contin#e to !e e+cl#ded and to fall thro#gh the crac-s that remain, "he Economic Implications of the I$E%: % Partially 5#nded Mandate "he I$E% is a partially f#nded federal mandate to the states, %ltho#gh the federal governmenIt does not re.#ire states to implement this law, many of the re.#irements of the I$E% are also re.#ired !y the %mericans with $isa!ilities %ct and !y section 172 of the Reha!ilitation %ct, a law that does not provide federal f#nding to the states, If states choose to implement the I$E%, they can receive additional f#nds, %s a res#lt, all 17 states have chosen to implement the act, Eonetheless, federal money c#rrently pays for only a!o#t ')J of the total cost of f#nding all of the re.#irements associated with implementing the I$E% &Eational Governors %ssociation, =77=*, Prior to '((), these f#nds were distri!#ted !ased solely on the n#m!er of st#dents with disa!ilities in the state, Eow, @1J of the f#nding is !ased on the n#m!er of st#dents enrolled in the p#!lic schools and '1J is !ased on the n#m!er of schoolage children living !elow the poverty line &62 C5R Part 677,)76-677,)7), %ssistance to 0tates for the Ed#cation of Children Hith $isa!ilities, '(((*, "his recent change ens#res that federal f#nding no longer relies on the need for st#dent la!els, "his new f#nding form#la allows states and school districts to allocate money in the manner that they deem to !e the most appropriate rather than force them to identify a certain percentage of st#dents with disa!ilities to receive the most federal assistance that they can, Eonetheless, schools and school districts contin#e to receive most of the f#nds for special ed#cation services from their state governments, 0tates allocate money in different ways, incl#ding per classroom, per teacher, !y the type of classroom in which a st#dent is located, !y a percentage of the act#al e+pendit#res that the local system inc#rs, !y district enrollment of st#dents with special needs, !y the n#m!er of st#dents in separate classes, and !y the n#m!er of st#dents with specific disa!ilities &Parrish < Holman, '(((*, "hese variations in f#nding clearly affect the e+tent to which incl#sive ed#cational settings are provided, 5or e+ample, in $elaware, schools receive money !ased on the amo#nt of time a st#dent with a disa!ility is ed#cated o#tside of a reg#lar ed#cation classroom, %s a res#lt, st#dents with disa!ilities are either segregated or, when incl#ded, are incl#ded with a class that is half st#dents with disa!ilities &Parrish < Holman, '(((*, In other words, they are not really ed#cated in the LRE, %s a res#lt of the limited federal involvement in financing the I$E% mandates &the primary so#rce of federal f#nding for special ed#cation is thro#gh the I$E%*, most of the policy relating to children with disa!ilities in the schools is state-level policy, %s noted, in some states, state !#dgetary decisions may hinder the implementation of the I$E%s LRE mandate, In addition, in most states the f#nding levels for special ed#cation are !ased on cens#s reporting of the n#m!er of children who reside in a partic#lar area, even tho#gh this n#m!er is not necessarily representative of the children who receive special ed#cation services nor the level of severity of the children9s disa!ilities &Cham!ers, '(((*, Conse.#ently, schools and school districts often do not have the financial reso#rces to ens#re the implementation of the provisions that re.#ire all children with disa!ilities to receive an appropriate ed#cation in the LRE, 5#rthermore, f#nding for special ed#cation and other ed#cational services varies greatly

among districts within states, and this variation infl#ences the .#antity and .#ality of services that are availa!le to help facilitate incl#sive services for st#dents with disa!ilities, even within the same state &Parrish, >9Reilly, $#enas, < Holman, '(()*, % rights-!ased approach to law generally does not address the impact of f#nding on the provision of incl#sive ed#cational services, altho#gh this factor is clearly f#ndamental to ens#ring that children with disa!ilities are ed#cated in the LRE, 0ocial relations theory helps e+plain why it is important to consider the economics of the school system and other factors separately from the rights of individ#al st#dents to ens#re that all children with disa!ilities are ed#cated in the LRE, Hhen a decision is made in an individ#al s#it, the f#nding for the overall system is #nli-ely to !e considered, !eca#se it is not directly related to the individ#al st#dent9s rights, 8owever, witho#t this consideration, there is #nli-ely to !e permanent str#ct#ral change, Local c#lt#re also infl#ences the manner in which the LRE is interpreted in different places, In a '((2 s#rvey of school administrators, most contended that it is simply too e+pensive for school districts to maintain !oth a system of special programs and schools for the disa!led as well as mechanisms to integrate st#dents into reg#lar ed#cation classes &8asa i et al,, '((2*, %s a res#lt, some administrators have advocated for, and school districts have !eg#n to implement, f#ll incl#sion as a cost-saving mechanism &Chow, Biais, < 8emingway, '(((3 >s!orne < $imattia, '((2*, >thers have had diffic#lty incl#ding children and have tried to -eep children in more restrictive ed#cational settings, "he I$E% re.#ires all p#!lic schools and school districts to provide a free appropriate p#!lic ed#cational setting for every child who has a disa!ility, "his may !e either a restrictive or an incl#sive setting depending #pon the needs of the individ#al child, ?nfort#nately, school districts and state ed#cational systems have tended toward one e+treme or the other, despite the federal mandate that children !e placed in the least restrictive appropriate ed#cational setting &8asa i et al,, '((2*, %s noted earlier, the economic str#ct#res that infl#ence the implementation of the LRE mandate are f#rther differentiated !y case law in different circ#its, 5or e+ample, in the Einth Circ#it &0acramento v, Rachel 8,, '((2*, the Co#rt of %ppeals specifically allowed for the consideration of cost in determining the least restrictive appropriate environment, In Rancher v, Halter &'(@6*, the Co#rt of %ppeals for the 0i+th Circ#it fo#nd that :cost is a proper factor to consider since e+cessive spending on one handicapped child deprives other handicapped children,: !#t :cost is no defense, however, if the school district has failed to #se its f#nds to provide a proper contin##m of alternative placements for handicapped children: &p, '746*, More recently, in Cedar Rapids Comm#nity 0chool $istrict v, Garret 5, &'(((*, the ?,0, 0#preme Co#rt addressed the possi!le e+cl#sion of some e+pensive s#pportive services as medical services, %ltho#gh the Co#rt recogni ed the possi!le e+pense that some services co#ld re.#ire, it stated that Garret9s related services, which incl#ded catheteri ation and oneto-one n#rsing care, sho#ld not !e e+cl#ded as medical services on the !asis of cost, "his case co#ld !e #sed to s#pport the arg#ment that other related services cannot !e e+cl#ded !ased solely on financial considerations, especially if these services are re.#ired to ens#re that a child is ed#cated in the LRE, 8owever, this iss#e has not !een specifically addressed !y the 0#preme Co#rt, %s a res#lt, economic factors may need to !e addressed o#tside of the individ#al rights of st#dents with disa!ilities, >therwise, st#dents with parents who have the reso#rces to s#e may !e a!le to access services and !e incl#ded in ed#cational settings in which special accommodations are made that are not availa!le to other st#dents,

0tr#ct#ral 5actors: Ed#cation and "raining %ccording to the ?0 $epartment of Ed#cation &=77'*, )1J of all st#dents with disa!ilities spend at least 27J of their school day in reg#lar ed#cation placements, 5#rthermore, (4J of all reg#lar ed#cation teachers are responsi!le for, or have in the past !een responsi!le for, teaching st#dents with special ed#cation needs, 0pecial ed#cation was originally esta!lished as a separate system so that children with special needs co#ld !e ed#cated !y specially trained teachers in smaller classes &8asa i et al,, '((2*, %s a res#lt of this history, general ed#cation and special ed#cation teachers are trained differently, and many general ed#cation teachers are #nprepared for the challenges of teaching children with special needs, 5#rthermore, many of the techni.#es designed for st#dents with special needs are not easily transfera!le to reg#lar classes &Chow et,al,, '(((3 5#chs < 5#chs, '((23 8asa i et al,, '((2*, In addition, many general ed#cation teachers have not !een trained in special ed#cation teaching methods or techni.#es, 0#ch training has only recently !een incorporated into the general ed#cation c#rric#l#m, and a recent >ffice of 0pecial Ed#cation Programs &=77'* st#dy fo#nd that of teachers who were trained in the past 4 years, only a!o#t half were trained to adapt c#rric#l#m and only a!o#t two thirds were ta#ght !ehavior management strategies, 0nyder &'(((* completed a st#dy of general ed#cation teachers in one third of the school districts in 0o#th Carolina, 0he fo#nd that over @7J of the teachers had not ta-en a grad#atelevel co#rse in special ed#cation and that over @7J reported that they were not confident of their a!ility to wor- with children who have disa!ilities, Many reg#lar ed#cation teachers also reported that they had ins#fficient contact with special ed#cation teachers regarding children with disa!ilities who were in their classes, 0ome were not aware of what their st#dents9 disa!ilities were, and, as a res#lt, it is #nli-ely that these teachers were a!le to woreffectively with those st#dents in their classes, %ltho#gh this st#dy #sed a convenience sample that may not have !een representative of all teachers, it s#ggests some alarming possi!ilities a!o#t the ways in which the I$E% is !eing implemented in some places, Beyond the s-ills and training that reg#lar ed#cation teachers need to have to wor- with special ed#cation st#dents, they also need time and reso#rces to address the needs of these st#dents, In aclass with 67 st#dents, even well-intentioned teachers often do not have the time to address the special needs of any individ#al st#dent, let alone a child with a severe disa!ility &Mamlin, '(((3 Hin er, '((@*, 5#rthermore, a recent s#rvey completed !y the Co#ncil for E+ceptional Children &=777* fo#nd that !oth elementary and secondary general ed#cation teachers were dissatisfied with their preservice training for children with disa!ilities, "hese str#ct#ral factors are not considered when #sing a rights- !ased approach to law, 8owever, in reality, as well as according to social relations theory, they are clearly important factors that m#st !e considered in order for incl#sive programs to !e s#ccessf#l, >rgani ational 0tr#ct#re: Hho Is in ControlK %s noted in reference to economic factors, altho#gh the I$E% is a federal law, states have developed mechanisms to implement it "hese mechanisms infl#ence the manner in which states choose to provide or not to provide incl#sive services to children with disa!ilities, 0ome states provide additional protections to children a!ove and !eyond the protections re.#ired !y federal law, 5or e+ample, #ntil ;an#ary =77=, Massach#setts re.#ired that children with disa!ilities receive all special ed#cation services that were necessary to help them reach their potential, "his standard was higher than the federal re.#irement that children receive an

ed#cation that is reasona!ly calc#lated to help children with disa!ilities ma-e :meaningf#l ed#cational progress: &Massach#setts $epartment of Ed#cation, =77'*, In addition, a =77' case from the Hestern $istrict of Misso#ri held that the Misso#ri ed#cational standard re.#ired ma+imi ing st#dent potential rather than complying with the lower federal standard &Misso#ri $epartment of Ed#cation, =77=*, >ther states, s#ch as Eew 8ampshire, have moved toward a total incl#sion approach to special ed#cation, "his approach re.#ires that all st#dents !e placed in reg#lar ed#cation classes regardless of the severity of their disa!ility or the child9s potential a!ility to learn more in a separate environment-that is, the appropriateness of the setting for the child &Hilson, '(((*, In a '((2 st#dy of si+ state special ed#cation programs, 8asa i et al, &'((2* fo#nd that in '= districts, the special ed#cation administrators were largely responsi!le for their entire school districts9 approach to LRE, In the five districts that more fre.#ently #sed separate schools and classes, the administrators were more committed to preserving the stat#s .#o, whereas in the schools that had greater integration, the administrators were philosophically committed to promoting integration, 8asa i et al, f#rther fo#nd that the principals were #ltimately responsi!le for the implementation of LRE within their schools, "hey fo#nd that if the principal was not s#pportive, integration was not li-ely to happen or it was li-ely to !e sa!otaged, 5#rthermore, the principals who were s#pportive of the LRE principle were more li-ely to provide teacher trainings and sched#le changes and ma-e necessary c#rric#l#m revisions, It is not clear from the research to what e+tent case law or lac- of local case law has infl#enced each of these districts, 8owever, what is clear is that these pro!lems will not !e resolved merely !y considering the individ#al rights of st#dents whose parents file s#it against the school system, even if the rights of all st#dents are !etter protected in districts where some parents have filed s#its, In other words, social relations factors m#st !e considered in addition to loo-ing at the individ#al rights of st#dents if organi ational str#ct#res are to !e changed to ens#re that children with disa!ilities are ed#cated in LRE in all p#!lic schools in the ?nited 0tates, "hese factors m#st !e considered in Congress and !y states !eca#se they are not ade.#ately addressed c#rrently, Concl#sion "his analysis of the I$E% demonstrates that laws for people with disa!ilities m#st address more than individ#al rights if these laws are going to !e s#ccessf#l in red#cing stigma and improving the stat#s of people with disa!ilities in society, %dditional social relations concepts s#ch as the stigma associated with la!els as well as the str#ct#ral and economic factors that infl#ence integration m#st !e considered, % federal mandate for LRE cannot !e effectively accomplished witho#t addressing the str#ct#ral and economic environments in which schools operate, Moreover, the ?,0, 0#preme Co#rt sho#ld address the varia!ility in interpretation of the LRE mandate, 5or real systemic change to occ#r, it will !e necessary to increase f#nding for schools and change the nat#re of teacher training, It might also !e #sef#l to e+tend the rights of children with disa!ilities to all children with special needs regardless of whether they are categori ed as children with disa!ilities, %ltho#gh this might increase the n#m!er of laws#its, #ltimately this change co#ld lead to more systemic changes and less stigma toward st#dents with disa!ilities, >ne simply cannot e+pect that a disa!led child, partic#larly one with a severe disa!ility, can !e placed in a reg#lar classroom and receive the same .#ality and .#antity of services that the

child might receive in a segregated class or school witho#t eval#ating the class si e and the general ed#cation teacher s level of ed#cation, "his change wo#ld, of co#rse, re.#ire p#!lic school classes to !e smaller and, perhaps, also re.#ire that reg#lar ed#cation teachers receive additional special ed#cation training, 5#rthermore, the stigma of a disa!ility will never diminish as long as the needs of children with disa!ilities are defined o#tside of the conte+t of the needs of all children, 5inally, legislators and advocates for the disa!led need to wor- together to ens#re that changes are made to the c#rrent I$E% that ena!le the law to address the individ#al needs of children with disa!ilities as well as the social relations !etween children with disa!ilities, their teachers, their peers, and their schools when addressing the LRE mandate, Given the c#rrent political climate, it is li-ely that mandates, especially f#nded mandates that co#ld increase federal control of state enterprises, s#ch as ed#cation, will !e diffic#lt if not impossi!le to legislate, 8owever, a restr#ct#ring of the I$E% as it pertains to incl#sion is necessary to ens#re that states can accomplish the federal LRE mandate, %lternatively, advocates for the disa!led co#ld address this iss#e thro#gh state legislat#res witho#t the !enefit of ade.#ate federal assistance, RE5EREECE0 %ssistance to 0tates for the Ed#cation of Children with $isa!ilities &'((=3 '(((3 =771*, 62 C5R 677-672, Board of Ed#c, of the 8endric- 8#dson 0ch, $ist, v, Rowley, 21@ ?,0, ')4 &'(@=*, Brown v, Board of Ed#c,, 62) ?,0, 2@6 &'(12*, Comment is in error, It is in the te+t, Cedar Rapids Comm#nity 0ch, $ist, v, Garret E, ''( 0, Ct, ((= &'(((*, Cham!ers, ;, G, &'(((*, "he patterns of e+pendit#res on st#dents with disa!ilities: % methodological and empirical analysis, In ", B, Parris, ;, G, Cham!ers, < C, M, G#arino &Eds,*, 5#nding special ed#cation &pp, @(-'=6*, "ho#sand >a-s, C%: Corwin Press, Chow, P,, Biais, L,, < 8emingway, ;, &'(((*, %n >#tsider loo-ing in: "otal incl#sion and the concept of e.#ifinality, Ed#cation, ''(&6*, 21(-242, Clyde D, v, P#yall#p 0ch, $ist,, 61 5,6d '6(4 &(th Cir, '((2*, Co#ncil for E+ceptional Children, &=777*, Bright f#t#res for e+ceptional learners5indings, Retrieved ;#ly '@, =776, from www,cec,sped,orgLspotlightL condL!fMfindings,html Craig v, Boren, 2=( ?,0, '(7 &'()4*, $aniel R,R, v, 0tate Board of Ed#c,, @)2 5,=d '764 &1th Cir, '(@(*, 5oster, ;, &'(((*, %n invitation to dialog#e: Clarifying the position of feminist gender theory in relation to se+#al difference theory, Gender < 0ociety, '6&2*, 26'-214, 5rontiero v, Richardson, 2'' ?,0, 4)) &'()6*,

5#chs, $,, < 5#chs, L 0, &'((2*, 0ometimes separate is !etter &ed#cation for learning disa!led children*, Ed#cational Leadership, 12&2*, ==-=), 5#chs, $,, < 5#chs, L, 0, &'((1*, Hhat9s special a!o#t special ed#cationK Phi $elta Dappan, )4&)*, 1==-167, Greer v, Rome City 0ch, $ist,, (17 5,=d 4@@ &' lth Cir, '(('*, 8arry, B,, < %nderson, M, &'((2*, "he disproportionate placement of %frican %mericans in special ed#cation programs: % criti.#e of the process, "he ;o#rnal of Eegro Ed#cation, 46&2*, 47=-4'(, 8artmann v, Lo#do#n Co#nty Board of Ed#c,, Eo, (4-=@7( &2th Cir, '(()*, Retrieved %pril '2, =772, from www,wrightslaw,comLlawL caselawL caseM8artmann2thCir,html 8asa i, 0, B,, ;ohnston, %, P,, Liggett, %, M,, < 0chattman, R, %, &'((2*, % .#alitative policy st#dy of the least restrictive environment provision of the Individ#als with $isa!ilities Ed#cation %ct, E+ceptional Children, 47&4*, 2('-17@, Individ#als with $isa!ilities Ed#cation %ct of '((7, =7 ?,0,C, '277 et se., &'((7* &amended '((),=772*, ;en-ins, R, &'(('*, $isa!ility and social stratification, British ;o#rnal of 0ociology, 2=&2*, 11)-1@7, Lewis, L,, Parsad, B,, Carey, E,, Bartfai, E,, 5arris, E,, < 0merdon, B, &'(((*, "eacher .#ality: % report on the preparation and .#alification of p#!lic school teachers, Hashington, $C: ?,0, $epartment of Ed#cation, Eational Center for Ed#cational 0tatistics, ECE0 '(((7@7, MacDinnon, C, %,, < $wor-in, %, &'(@@*, Pornography and civil rights: % new day for women9s e.#ality, Minneapolis, ME: >rgani ing %gainst Pornography, Mamlin, E, &'(((*, $espite !est intentions: Hhen incl#sion fails, "he ;o#rnal of 0pecial Ed#cation, 66&'*, 64-2(, Massach#setts $epartment of Ed#cation, &=77'*, %dministrative %dvisory 0PE$ =77=-', Retrieved 0eptem!er '4, =776, from http:LL www,doe,mass,ed#L spedLadvisoriesL7=Ml,html Minow, M, &'((7*, Ma-ing all the difference: Incl#sion, e+cl#sion and %merican law, Ithaca, EN: Cornell ?niversity Press, Misso#ri $epartment of Ed#cation, &=77=*, 0pecial ed#cation compliance ma+imi ing: 5re.#ently as-eId .#estions, Retrieved 0eptem!er '4, =776, from http:LLwww,dese,state,mo,#sLdivspecedL ComplianceLO<%LMa+,htmlP'',2 >!erti v, Board of Ed#c, of the Boro#gh of Clementon 0ch, $ist,, ((1 5,=d '=72 &6rd Cir, '((6*, >ffice of 0pecial Ed#cation Programs, &=77'*, General ed#cation teachers9 role in special ed#cation, Hashington, $C: ?,0, $epartment of Ed#cation, Retrieved %#g#st ),=776, from www,spense,org

>s!orne, %, G,, < $imattia, P, &'((2*, "he I$E%90 least restrictive environment mandate: Legal implications, E+ceptional Children, 4'&'*, 4-'1, Palley, E, &=776*, "he role of the co#rts in the development and implementation of the I$E%, 0ocial 0ervice Review, ))&2*, 471-4'@, Parrish, ", B,, < Holmar, ;, &'(((*, "rends and new eevelopments in special ed#cation f#nding: Hhat the states report, In ", B, Parrish, ;, G, Cham!ers, < C, M, G#arino &Eds,*, 5#nding special ed#cation, "ho#sand >a-s, C%: Corwin Press, Parrish, ", B,, >9Reilly, E, I, E, $#eftas, < ;, Holman, &'(()*, 0tate special ed#cation finance systems, '((2-(1, PaIo %lto, C%: %merican Instit#tes for Research in the Behavioral 0ciences, Center for 0pecial Ed#cation 5inance, Py-e, D, $, &'((4*, Class-!ased masc#linities: "he interdependence of gender, class and interpersonal power, Gender < 0ociety, '7&1*, 1=)-12(, Reed v, Reed, 272 ?,0, )' &'()'*, Rio#+, M, 8, &=776*, >n second tho#ght: Constr#cting -nowledge, law, disa!ility, and ine.#ality, In 0, 0, 8err, L, >, Gostin, < 8, 8, Doh &Eds,*, "he h#man rights of persons with intellect#al disa!ilities &pp, =@)-6'@*, Eew Nor-: >+ford ?niversity Press, Roncher v, Halter, )77 5,=d '71@ &4th Cir, '(@6*, 0acramento City ?nified 0ch, $ist, Board of Ed#c, v, 8olland, '2 5,6d '6(@ &(th Cir, '((2*, 0chnit, $, &=776*, Hhen legislation sho#ld ta-e intellect#al disa!ilities into acco#nt, In 0, 0, 8err, L, >, Gostin, < 8, 8, Doh &Eds,*, "he h#man rights of persons with intellect#al disa!ilities &pp, =6)-=4=*, Eew Nor-: >+ford ?niversity Press, 0chwart man, L, &'(((*, Li!eral rights theory and social ine.#ality: % feminist criti.#e, 8ypatia, '2&=*, =4, 0nyder, R, 5, &'(((*, Incl#sion: % .#alitative st#dy of inservice general ed#cation teachers9 attit#des and concerns, Ed#cation, '=7&'*, ')6-'@=, 0ection 172 of the Reha!ilitation %ct of '()6, =( ?,0,C, )(' et se., ?,0, $epartment of Ed#cation &=77'*, >0ER0 =6rd %nn#al Report to Congress on the Implementation of the I$E%, Retrieved Eovem!er '2, =771 from www,ed,govLa!o#tLreportsLann#alL>0EPL=77' Aestegen,Aerstegen, $, %, &'(((*, Civil rights and disa!ility policy: % historical perspective, In ", B, Parrish, ;, G, Cham!ers, < C, M, G#arino &Eds,*, 5#nding special ed#cation &pp, 6='*, "ho#sand >a-s, C%: Corwin Press, Hilson, B, %, &'(((*, Incl#sion: Empirical g#idelines and #nanswered .#estions, Ed#cation and "raining in Mental Retardation and $evelopmental $isa!ilities, 62&=*, ''(-'66,

Hin er, M, %, &'((@*, "he incl#sion movement and teacher change: Hhere are the limitsK McGiIl ;o#rnal of Ed#cation, 66&6*, ==(-=1', Fa/ice-, %, M,, < Calasanti, ", M, &'((@*, Patriarchical str#ggles and state practices: % feminist, political-economic view, Gender < 0ociety, '=&1*, 171-1=), Eli a!eth Palley, %delphi ?niversity %B>?" "8E %?"8>R ELIF%BE"8 P%LLE", ;$, Ph$, is an assistant professor of law and social policy in the 0chool of 0ocial Hor- at %delphi ?niversity, 8er c#rrent research interests incl#de laws and social welfare policies that affect children and people with disa!ilities, %ddress: Eli a!eth Palley, %delphi ?niversity 0chool of 0ocial Hor-, ' 0o#th %ve,, Garden City, EN ''167, %?"8>R90 E>"E %ltho#gh this article was written prior to =772, no significant changes have !een made to the >$E% or its reg#lations as they relate to the LRE, Copyright PR>-E$ ;o#rnals 0pring =774 0tory from RE$>RBI" EEH0: http:LLwww,redor!it,comLnewsLdisplayLKidQ212766 P#!lished: =774L72L7= 74:77:2= C$" R Red>r!it =771