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• OBERTI • Mills • Daniel R. • PARC Consent • Rowley • SACRAMENTO v. RACHEL H. • ADA - Americans with Disabilities fact sheet • ADA - Americans with Disabilities webite links • Inclusion BEC •
with disabilities are
first and foremost children,
worthy of equal respect, opportunities,
treatment, status and place.
Children with disabilities are first and foremost children. They will
benefit from the same experiences that are desirable for all children for
the same reasons. They will also benefit from avoidance of the same
undesirable experiences for the same reasons. Inclusion provides
opportunities for socialization and friendships to develop. It provides a
sense of belonging and appropriate modeling of social, behavioral, and
Separate is not equal. If something is offered to all children it must be
accessible to all children. Access should not be denied based on disability
or any characteristic alone. Children with disabilities have a right to go
to the same schools and classes as their friends, neighbors, brothers and
sisters. They have a right to be afforded equal opportunities.
Parents have a right, as experts on their own children, to pursue the least
restrictive environment with supports and services for their children to
successfully achieve their individual goals. They will always have far
longer and greater responsibility, and vested interest in their child's
future, than any system or paid professional. They are equal partners of the
IEP (Individual Education Program) Team.
Giving every child a sense of belonging, value and worth enhances their
overall quality of life. Including children with disabilities in general
education classes models acceptance of diversity. It teaches children how to
function together with others of different abilities.
The Individual's with
Disabilities Education Act (IDEA)
Passed in 1975 (as PL 94-142) amended 1997 and again in 2004. Children with disabilities are
to be educated to the maximum extent with children who do not have
disabilities. Beginning in July of 1998, Congress requires that IEP's
include a statement describing how the child's disability affects his/her
involvement and progress in the general curriculum and a statement of goals
and objectives that is related to enabling the child to be involved and
progress in the general curriculum. [20 U.S.C. Sec. 1414(d)(1)(A)(i)&(ii).]
The statement of services in the IEP must also include a statement of the
supplemental aids and services that will be provided for the child and a
statement of the program modifications and supports for school personnel
that will be provided for the child to be involved and progress in the
general curriculum and to participate in extracurricular and nonacademic
activities beginning in July of 1998. [20 U.S.C. Sec. 1414(d)(1)(A)(iii).]
Disabilities Act (ADA)
Passed in 1990. Extended civil rights similar to those of the Civil Rights
Act of 1964 to people with disabilities. "Prohibits discrimination on the
basis of disability in: private sector employment; services rendered by
state and local governments; places of public accommodations;
transportation; telecommunications relay systems." Integration is
fundamental to the purpose of the ADA. Regulations state that "a public
entity may not deny a qualified individual with a disability the opportunity
to participate in services, programs, or activities that are not separate or
different, despite the existence of permissibly separate or different
programs or activities." Click here for a list of ADA links
Rehabilitation Act 504
Passed in 1973 - No otherwise qualified individual with disabilities in the
United States.... shall solely by reason of his disabilities, "be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any program, or activity receiving Federal financial
Civil Rights Act
Passed in 1964 - Protects the rights of all "minority groups"
Supreme Court - Brown v. Board of Education 1954
On May 17, 1954, the Supreme Court unanimously declared that "separate
educational facilities are inherently unequal" and, as such, violate the
14th Amendment to the United States Constitution, which guarantees all
citizens "equal protection of the laws." Justices concluded that exclusion
"generates a feeling of inferiority as to their status in the community that
may affect their hearts and minds in a way unlikely to ever be undone."Chief
Justice Earl Warren stated "a sense of inferiority affects the motivation of
the child to learn".
[Click here - The
National Center for Public Policy Research website- Full text of Brown v.
Board of Education]
United States Constitution 14th Amendment
Section 1 "... nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor to deny to any person within its
jurisdiction the equal protection of the laws."
(Click here to link to the National Archives and Records Administration
Declaration of Independence -
Thomas Jefferson stated "We hold these truths to be self-evident: that all
men are created equal; that they are endowed by their creator with certain
unalienable rights; that among these are life; liberty and the pursuit of
Federal Court Cases:
Roncker v. Walter, 700 F2d. 1058
(6th Circuit Court 1993)
addressed the issue of "bringing educational services to the child" versus
"bringing the child to the services". The case was resolved in favor of
integrated versus segregated placement and established a principle of
portability; that is, " if a desirable service currently provided in a
segregated setting can feasiblely be delivered in an integrated setting, it
would be inappropriate under PL 94-142 to provide the service in a
segregated environment" Questions used to determine whether mainstreaming
can be accomplished.
1) What is it in the segregated program
that makes it better than a mainstreaming program?
2) Can these things (modified
curriculum, teacher) be provided in the regular school environment?
"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
non-segregated setting (i.e. regular class). If they can, the placement
in the segregated school would be inappropriate under the act
(I.D.E.A.)." (Roncker v. Walter, 700 F.2d 1058 (6th Cir.) at 1063, cert.
denied, 464 U.S. 864 (1983))
The Roncker Court found that placement decisions must be individually
made. School districts that automatically place children in a predetermined
type of school solely on the basis of their disability (e.g., mentally
retardation) rather than on the basis of the IEP, violate federal laws.
Board of Education of the Borough of Clementon School District
(3rd Circuit Court, 1993)
upheld the right of Rafeal Oberti, a boy with Down syndrome, to receive his
education in his neighborhood regular school with adequate and necessary
supports, placing the burden of proof for compliance with IDEA's
mainstreaming requirements on the school district and the state rather than
on the family. The federal judge who decided the case endorsed full
inclusion, he wrote "Inclusion is a right, not a special privilege for a
The Oberti Court stated ...
"that education law requires school systems to supplement and realign
their resources to move beyond those systems, structures and practices
which tend to result in unnecessary segregation of children with
"We emphasize that the Act does not require states to offer
the same educational experience to a child with disabilities as is
generally provided for nondisabled children.... To the contrary, states
must address the unique needs of a disabled child, recognizing that that
child may benefit differently from education in the regular classroom
than other students. .... In short, the fact that a child with
disabilities will learn differently from his or her education within a
regular classroom does not justify exclusion from that environment."
"Indeed the Act's strong presumption in favor of mainstreaming...would
be turned on its head if parents had to prove that their child was
worthy of being included, rather than the school district having to
justify a decision to exclude the child from the regular classroom."
City Unified School District vs. Holland (9th Circuit Court, 1994)
upheld the district court decision in which Judge David S. Levi
indicated that when school districts place students with disabilities, the
presumption and starting point is the mainstream. The parents
challenged the district's decision to place their daughter half-time in a
special education classroom and half-time in a regular education classroom,
they wanted their daughter in the regular classroom full-time. Rachel
Holland an 11 year old with mental retardation, and was tested with an I.Q.
of 44. The District contended Rachel was too "severely disabled" to benefit
from full-time placement in a regular class. The court found in favor of
including the child. The 9th Circuit Court established a four-part balancing
test to determine whether a school district is complying with IDEA.
1) the educational benefits of placing
the child in a full-time regular education program;
2) the non-academic benefits of such a
placement. (The court noted social and communications skills as well as
her self-confidence from placement in a regular class)
3) the effect the child would have on
the teacher and other students in the regular classroom;
4) and the costs of supplementary aids
and services associated with this placement
(The court said cost is only a factor if it would " adversely affect
services available to other children.)
The Clinton administration, via the Office of Special Education Programs,
filed a "friend of the court" brief with the Court of Appeals in Support of
Rachel Holland's placement in general education.
Greer vs. Rome City School District (11th Circuit Court, 1992)
Court stated "Before the school district may conclude that a handicapped
child should be educated outside of the regular classroom it must consider
whether supplemental aids and services would permit satisfactory education
in the regular classroom." Parents said the school determined the child's
"severe impairment" justified placement in a self- contained special
education classroom. The district argued that the costs of providing
services in the classroom would be too high The court sided with the parents
and said the school had made no effort to modify the kindergarten curriculum
to accommodate the child in the regular classroom.. The court said that the
district cannot refuse to serve a child because of added cost. The Court
also said school officials must share placement considerations with the
child's parents at the IEP meeting before a placement is determined.
Daniel R.R. v
State Board of Education , 874 F.2d
1036 (5th Circuit Court 1989)
found that regular education placement is appropriate if a child with a
disability can receive a satisfactory education, even if it is not the best
academic setting for the child. Non-academic benefits must also be
considered. The Court stated that "academic achievement is not the only
purpose of mainstreaming. Integrating a handicapped child into a
nonhandicapped environment may be beneficial in and of itself...even if the
child cannot flourish academically." The Circuit Court developed a
two-pronged test to determine if the district's actions were in compliance
with the Individuals with Disabilities Education Act (IDEA):
1) Can education in the regular
classroom with the use of supplemental aids and services be achieved
2) If it cannot, has the school
mainstreamed the child to the maximum extent appropriate?
(Note - The Court stated that "In this case, the trial
court correctly concluded that the needs of the handicapped child and the
needs of the nonhandicapped students in the Pre-kindergarten class tip the
balance in favor of placing Daniel in special education".)
Education v. Rowley, 458 U.S. 176 (2nd Circuit Court 1982)
Supreme Court found that individualized decisions based on the unique
needs of each child were essential under federal law. Schools who let one
criterion, such as a specific disability, automatically determine the
placement are likely to be held in violation of federal law.
Board of Education The court adopted "a presumption that among
the alternative programs of education, placement in a regular public school
class with appropriate ancillary services is preferable to placement in a
special school class."(See hearing proceedures 13a)
Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971)
Pennsylvania case providing the rights to a free public education for
children with mental retardation.
Dept. of Educ.,State of Hawaii v. Katherine D.
In California, the federal appeals court has stated that the: "Congressional
preference for educating handicapped children in classrooms with their peers
is made unmistakably clear."
- Irving Independent School District v. Tatro, 468 U.S. 883, 893
And if specially trained personnel, for example physical, occupational, and
speech therapists are required to assist a student with a disability to
participate in an inclusive program, those personnel must be hired.
Tokarcik v. Forest Hills School District
Denying access to a regular public school classroom without a compelling
education justification constitutes discrimination.
Mavis v. Sobol.
"The District has not justified, to the satisfaction of this reviewing
court, its decision to exclude [the student] from a regular classroom."
Hartman v. Loudon County Board of Education (E.D.Va 1996)
A school district was required to place an 11 year old student with
autism in a regular education classroom with a one to one instructional aide
and an appropriately adapted curriculum. The student had shown benefit from
such placement in a previous school district.
The National Anthem "land of the free"
The Pledge of Allegiance states "with liberty and justice
Written by Colleen F. Tomko
Material Copyrighted 1996 Kids Together, Inc.
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