Legal Right to an Inclusive Education in California

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December 31, 2018
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January 16, 2019

Legal Right to an Inclusive Education in California

If district members of your child’s IEP team are attempting to force your child out of the general education setting, there are ways to fight such a change.  Below is a brief discussion of the law relating to your child’s right to be educated in the Least Restrictive Environment within which they can make progress.  The attorneys at N.A.V. are experienced in fighting against school district’s who seek to place students with disabilities in segregated settings.  To receive advice on your individual case, please fill out our intake form and we will be in contact shortly.

The IDEA requires states receiving federal assistance for the education of students with disabilities to establish procedures assuring that special education students are educated in the least restrictive environment (“LRE”) and that “[t]o the maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when 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.” 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.114-120. Section 1412(a)(5)(A) is also referred to as the IDEA’s “mainstreaming” requirement. Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H. ex rel. Holland [Rachel H.], 14 F.3d 1398, 1403 (9th Cir. 1994). This requirement “sets forth Congress’s preference for educating children with disabilities in regular classrooms with their peers.” Id. While the IDEA states a strong preference for mainstreaming, it is not an absolute requirement. Poolaw v. Bishop, 67 F.3d 830, 836 (9th Cir. 1995).  To determine whether a placement provides mainstreaming “to the maximum extent appropriate,” The Ninth Circuit employs a four factor analysis adopted in Rachel H. The four factors identified in Rachel H. are: “(1) the educational benefits of placement full-time in a regular class; (2) the non-academic benefits of such placement; (3) the effect [the student has] on the teacher and children in the regular class; and (4) the costs of mainstreaming [the student].” Id. at 1404.

If it is determined that a child cannot be educated in a general education environment, then the least restrictive environment analysis requires determining whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. (Daniel R.R. v. State Board of Ed. (5th Cir. 1989) 874 F.2d 1036, 1050.) The IDEA expresses a clear policy preference for inclusion to the maximum extent appropriate as an aspiration for all children with special needs. (See 20 U.S.C. §1412(a)(5)(A); Ed. Code, § 56031; 34 C.F.R. §§ 300.114 & 300.116.) School districts are required to provide each special education student with a program in the least restrictive environment, with removal from the regular education environment occurring only when the nature or severity of the student’s disabilities is such that education in regular classes with the use of supplementary aids and services could not be achieved satisfactorily. (20 U.S.C. §1412(a)(5)(A); Ed. Code, § 56031.)

The Supreme Court recently elaborated on the substantive standard which the IDEA requires Districts to provide to students whose disability-related deficits prevent them from working at grade level.  In Endrew F. ex. rel. Joseph F. v. Douglas County Sch. Dist. RE-1, (2017) 137, S.Ct. 988, 999, the Court held that schools “must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” California school districts were unaffected by the Endrew F. decision insofar as the “de minimus” educational benefit standard had not been adopted by the Ninth Circuit.  Rather, the Ninth Circuit had been applying a more rigorous understanding of Rowley which required educational benefit in the same sense as meaningful educational benefit standard articulated in Endrew. J.L. v. Mercer Island School District, 592 F.3d 938 (9th Cir. 2010) (clarifying that “educational benefit,” “some educational benefit,” and “meaningful educational benefit” all refer to the same standard from Rowley.); see also M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 852 (9th Cir. 2014) (referring to the district’s obligation to provide meaningful benefit under Rowley.)  The substantive standard in the Ninth Circuit under which appropriate progress is determined has not, therefore, been altered by Endrew and earlier precedent regarding the level of progress sufficient to sustain parents’ request to place their children in general education remains unaffected.

School Discipline and Students with Disabilities: Short-Term Suspensions
Inclusion Outside the Classroom