Rights to Regular Ed


Rights to Regular Education

“Children with disabilities are
first and foremost children,
worthy of equal respect, opportunities,
treatment, status, and place.”

Moral Right

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 academic skills.

Civil Right

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.

Parental Right

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.

Ethical Right

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.

Legal Right

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).]

Americans with 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 assistance…”

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 Website)

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 happiness.”


Federal Court Cases:

Roncker v. Walter, 700 F2d. 1058 (6th Circuit Court 1993)

The case 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 feasibly 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.

Oberti vs. Board of Education of the Borough of Clementon School District
(3rd Circuit Court, 1993)

The court 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 select few”.

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 disabilities.

“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.”

Sacramento City Unified School District vs. Holland (9th Circuit Court, 1994)

Federal Court 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)

The 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)

The court 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 satisfactorily?

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”.)

Board of 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.

Other Cases

Mills v. 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 procedures 13a)

P.A.R.C v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971) Consent Agreement.

Pennsylvania case providing the rights to 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 (1984).

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.

Misc.

The National Anthem “land of the free”
The Pledge of Allegiance states “with liberty and justice for “all”.


Dan Stewart: Education Rights

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