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"Our School Doesn't Offer Inclusion"
and Other Legal Blunders
Paula Kluth, Richard A. Villa and Jacqueline S.
Thousand
Common misunderstandings about schools' legal responsibilities under the
Individuals with Disabilities Education Act have slowed implementation
of the law. School authorities who understand the law can provide a
better education for all students.
In 1975, Congress passed the Education for All Handicapped Children Act
(Public Law 94-142), guaranteeing for the first time that all students
with disabilities would receive a public education. The law, whose name
changed in subsequent reauthorizations in 1990 and 1997 to the
Individuals with Disabilities Education Act (Public Law 101-476; Public
Law 105-17), set the stage for inclusive schooling, ruling that every
child is eligible to receive a free and appropriate public education and
to learn in the least restrictive environment possible. Specifically,
the law ensures
that to the maximum extent appropriate, children
with disabilities, including children in public or private
institutions and other care facilities, are educated with children
who are not disabled. (Individuals with Disabilities Education Act,
20 U.S.C. § 1412 [a][5])
In 1994, the U.S. Department of Education's Office of
Special Education Programs issued policy guidelines stating that school
districts cannot use the lack of adequate personnel or resources as an
excuse for failing to make a free and appropriate education available,
in the least restrictive environment, to students with disabilities.
Schools have taken much time to implement the law. Although many schools
and districts have been educating students with disabilities in
inclusive settings for years, families often still have to fight to get
their children into general education classrooms and inclusive
environments.
An analysis of U.S. Department of Education reports found that in the
dozen years between 1977 and 1990, placements of students with
disabilities changed little. By 1990, for example, only 1.2 percent more
students with disabilities were in general education classes and
resource room environments: 69.2 percent in 1990 compared with 68
percent in 1977. Placements of students with disabilities in separate
classes declined by only 0.5 percent: 24.8 percent in 1990 compared with
25.3 percent in 1977. And, students with disabilities educated in
separate public schools or other separate facilities declined by only
1.3 percent: 5.4 percent of students with disabilities in 1990 compared
with 6.7 percent of students with disabilities in 1977 (Karagiannis,
Stainback, & Stainback, 1996).
More recently, the National Council on Disability (2000) released
similar findings. Investigators discovered that every state was out of
compliance with the requirements of the Individuals with Disabilities
Education Act and that U.S. officials are not enforcing compliance. Even
today, schools sometimes place a student in a self-contained classroom
as soon as they see that the student is labeled as having a disability.
Some students enter self-contained classrooms as soon as they begin
kindergarten and never have an opportunity to experience regular
education. When families of students with disabilities move to a
different district, the new school sometimes moves the student out of
general education environments and into segregated classrooms.
In some cases, districts may be moving slowly toward inclusive
education, trying to make a smooth transition by gradually introducing
teachers and students to change—but moving slowly cannot be an excuse
for stalling when a learner with a disability comes to school requiring
an inclusive placement.
Clearly, more than 25 years after the law came into effect, many
educators and administrators still do not understand the law or how to
implement it. Three common misunderstandings still determine decisions
about students with disabilities in U.S. schools.
"Our School Doesn't Offer Inclusion"
We often hear teachers and families talking about inclusion as if it
were a policy that schools can choose to adopt or reject. For example,
we recently met a teacher who told us that her school "did inclusion,
but it didn't work," so the school "went back to the old way."
Similarly, a parent explained that she wanted her child to have an
inclusive education, but her neighborhood school doesn't "have
inclusion."
Special education is not a program or a place, and inclusive schooling
is not a policy that schools can dismiss outright. Since 1975, federal
courts have clarified the intent of the law in favor of the inclusion of
students with disabilities in general education (Osborne, 1996; Villa &
Thousand, 2000a, 2000b). A student with a disability should be educated
in the school he or she would attend if not identified as having a
disability. The school must devise an individualized education program
that provides the learner with the supports and services that the
student needs to receive an education in the least restrictive
environment possible.
The standard for denying a student access to inclusion is high. The law
clearly states that students with disabilities may be removed from the
regular education environment only
when the nature or severity of the disability is
such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily. (Individuals
with Disabilities Education Act, 20 U.S.C. § 1412 [a][5])
If schools can successfully educate a student with
disabilities in general education settings with peers who do not have
disabilities, then the student's school must provide that experience.
"She Is Too Disabled to Be Educated
in a Regular Classroom
A special education teacher recently told us that she
was interested in inclusive schooling and that she decided to "try" it
with one of her students. Patricia, a young student with Down's
syndrome, began 1st grade in Sept-ember, but the school moved her back
to a special education classroom by November. The teacher told us how
difficult the decision had been and explained why educators had changed
Patricia's placement: "The kids really liked her and she loved 1st
grade, but she just wasn't catching on with the reading. She couldn't
keep up with the other kids."
Many families and teachers have the common misperception that students
with disabilities cannot receive an inclusive education because their
skills are not "close" enough to those of students without disabilities.
Students with disabilities, however, do not need to keep up with
students without disabilities to be educated in inclusive classrooms;
they do not need to engage in the curriculum in the same way that
students without disabilities do; and they do not need to practice the
same skills that students without disabilities practice. Learners need
not fulfill any prerequisites to participate in inclusive education.
For instance, a middle-school social studies class is involved in a
lesson on the U.S. Constitution. During the unit, the class writes its
own constitution and bill of rights and reenacts the Constitutional
Convention. Malcolm, a student with significant disabilities,
participates in all these activities even though he cannot speak and is
just beginning to read. During the lesson, Malcolm works with a peer and
a speech and language therapist to contribute one line to the class bill
of rights; the pair uses Malcolm's augmentative communication device to
write the sentence. Malcolm also participates in the dramatic
interpretation of the Constitutional Convention. At the Convention,
students acting as different Convention participants drift around the
classroom introducing themselves to others. Because he cannot speak,
Malcolm—acting as George Mason—shares a little bit about himself by
handing out his "business card" to other members of the delegation.
Other students are expected to submit three-page reports at the end of
the unit, but Malcolm will submit a shorter report, a few sentences,
which he will write using his communication device. His teacher will
assess Malcolm's grade on the basis of his report and participation in
the class activities, his demonstration of new skills related to
programming his communication device, and his social interactions with
others during the Constitutional Convention exercise.
The Constitutional Convention example illustrates how students with
disabilities can participate in general education without engaging in
the same ways or having the same skills and abilities that others in the
class may have. In addition, this example highlights ways in which
students with disabilities can work on individual skills and goals
within the context of general education lessons. Most important, his
teachers designed and put in place the supports and adaptations that
Malcolm needed for success. Malcolm did not have to display all the
skills and abilities of other students to participate. Instead,
Malcolm's teachers created a context in which Malcolm could demonstrate
competence.
For Malcolm to be successful in his classroom, his teachers need to
provide him with a range of "supplemental supports, aids, and services,"
one of the law's requirements (Individuals with Disabilities Education
Act, 20 U.S.C. § 1412 [a][5]). Supports, aids, and services might
include a piece of assistive technology, use of an education consultant,
instruction from a therapist, support from a paraprofessional, peer
tutors, different seating or environmental supports, modified
assignments, adapted materials (such as large-print books, graphic
organizers, or color-coded assignment books), curriculum that is
differentiated to meet the needs of the learner, time for teachers'
collaborative planning, coteaching, training for school personnel, or
any number of other strategies, methods, and approaches. Schools do not
need to provide every support available, but they must provide those
required by the student with disabilities.
Families do not have to prove to the school that a student with
disabilities can function in the general classroom. In Oberti v. Board
of Education of the Borough of Clementon School District (1993), for
example, a U.S. circuit court determined that the neighborhood school of
Raphael Oberti, a student with Down's syndrome, had not supplied him
with the supports and resources he needed to be successful in an
inclusive classroom. The judge also ruled that the school had failed to
provide appropriate training for his educators and support staff. The
court placed the burden of proof for compliance with the law's inclusion
requirements squarely on the school district and the state instead of on
the family. In other words, the school had to show why this student
could not be educated in general education with aids and services, and
his family did not have to prove why he could. The federal judge who
decided the case stated, "Inclusion is a right, not a special privilege
for a select few."
"We Offer Special Programs Instead of Inclusion
A few years ago, one of us went to a neighborhood
school to vote. To get to the ballot machines, voters had to walk down a
long hallway to a classroom marked Autistic Center. Knowing that the
district had been providing inclusive education to many students with
disabilities, we were surprised to learn that although students with
mild disabilities were in general education classrooms, others were
still in "special programs." The teacher in the Autistic Center was
responsible for educating all the district's students who were diagnosed
with autism—eight learners, ages 6 to 14.
Across the United States, many school districts still operate programs
for discrete groups of students. Separate programs and classrooms exist
for students identified with certain labels—emotional disabilities, for
example—and for students with perceived levels of need, such as severe
or profound disabilities. In many cases, students enter these
self-contained settings without an opportunity to receive an education
in a general classroom with the appropriate aids and services.
In 1983, the Roncker v. Walter case challenged the assignment of
students to disability-specific programs and schools. The ruling favored
inclusive, not segregated, placement and established a principle of
portability. The judge in the case stated,
It is not enough for a district to simply claim
that a segregated program is superior. In a case where the
segregated facility is considered superior, the court should
determine whether the services which make the placement superior
could be feasibly provided in a nonsegregated setting (i.e., regular
class). If they can, the placement in the segregated school would be
inappropriate under the act (IDEA). (Roncker v. Walter, 1983, at
1063)
The Roncker court found that placement decisions must
be determined on an individual basis. School districts that
automatically place students in a pre-determined type of school solely
on the basis of their disability or perceived level of functioning
rather than on the basis of their education needs clearly violate
federal laws.
Benefits of Understanding the Law
Implementation of the law is still in its infancy,
and educators are still learning about how the law affects students in
their classrooms. Reviewing the intent and language of the Individuals
with Disabilities Education Act will help administrators shape
districtwide or school-based policies and procedures; evaluate the ways
in which programs are labeled and implemented; and make more informed
decisions about student assessment, placement, and service delivery.
Administrators should also consider the following questions:
-
Are all students in the least restrictive
environment?
-
Are we providing students with disabilities
with the necessary supplemental supports, aids, and services?
-
Do teachers and administrators understand
their responsibilities under the Individuals with Disabilities
Education Act?
-
Do teachers and administrators talk about
inclusive education as if it were a choice that can be made by a
school or by a teacher?
-
Do school personnel require additional
training?
School district leaders and school principals who
understand the federal law can avoid lawsuits, enhance education
experiences for students with and without disabilities, and move toward
the development of school communities that are egalitarian, just, and
democratic for all.
References
Education for All Handicapped Children Act of 1975, Public Law 94-142
(1975).
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.
(1997).
Karagiannis, A., Stainback, S., & Stainback, W. (1996). Historical
overview of inclusion. In S. Stainback & W. Stainback (Eds.), Inclusion:
A guide for educators (pp. 17–28). Baltimore: Brookes.
National Council on Disability. (2000, January 25). Back to school on
civil rights. (NCD #00-283). Washington, DC: Author.
Oberti v. Board of Education of the Borough of Clementon School
District, 995 F.2d 1204 (3rd Cir. 1993).
Osborne, A. G. (1996). Legal issues in special education. Needham
Heights, MA: Allyn & Bacon.
Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983), cert. denied, 464 U.S.
864 (1983).
Villa, R., & Thousand, J. (Eds.). (2000a). Restructuring for caring and
effective education. Baltimore: Brookes.
Villa, R. & Thousand, J. (2000b). Setting the context: History of and
rationales for inclusive schooling. In R. Villa & J. Thousand (Eds.),
Restructuring for caring and effective education: Piecing the puzzle
together (pp. 7–37). Baltimore: Brookes.
--------------------------------------------------------------------------------
Paula Kluth (pkluth@syr.edu) is an assistant professor in the Department
of Teaching and Leadership, Syracuse University, 150 Huntington Hall,
Syracuse, NY 13244. Richard A. Villa (ravillabayridge@cs.com) is
President, Bayridge Consortium, 767 Pebble Beach Dr., San Marcos, CA
92069. Jacqueline S. Thousand (jthousand@csusm.edu) is a professor in
the College of Education, California State University–San Marcos, San
Marcos, CA 92096.
Copyright © 2001 by Association for Supervision and Curriculum
Development Volume 59 Number 4 December 2001/January 2002 http://www.ascd.org/
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