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Renewing Schools with Old Standards
After more than a decade of criticism, some educators have launched a counterattack by refuting statistical comparisons used to incriminate schools. Kiesling (1994) questions the Educational Testing Service's reports on the bases of faulty sampling procedures and simplistic reporting methodology. Another example is the article by Richard Bagin saying that great schools of the past never existed and that today our schools are better than ever.
But this has been a debate about a model of education that is rapidly passing from view. While there is considerable experimentation with new ways of organizing schools and conducting instruction, almost all of the reform measures imposed on schools have been top-down measures for more accountability, using standards of the past--teacher testing, student testing, tougher textbooks. The trend toward inclusion of children with disabilities is only one facet of the evolution of American education, and some potential innovations in education may actually facilitate the implementation of inclusion practices. In either case, a traditional school or a school attempting the latest innovations, inclusion can be a complicating factor for classroom teachers.
New Standards
Toffler (1980) warned that the world would change dramatically due to new technologies, and he said change would become continual. Virtually every institution in our society and every industrial nation is "restructuring," "down sizing," or being "reinvented." We are in the midst of a general restructuring between the former economy and the new, so the problems of schools are only part of a major transformation from one era to another. It is not yet clear how old standards for the industrial era will be replaced by new ones, although jobs are being eliminated or replaced. While school dropouts and people with minimal literacy skills could once find good jobs at high wages, today even a high school diploma or a college degree provides no assurance of job security. This is a concern for children with disabilities, special educators, and the general education community.
Computers, microelectronics, and other telecommunications are essential for productive work, and to a great extent lie at the root of GOALS 2000 and similar efforts. With "smart" tools at their disposal, workers are provided more decision making authority and are expected to assume more responsibility and engage in team work. Schools are beginning to recognize the new social, political, and work norms defined by technology and the new global interdependence (Cohl, 1996). However, deciding how and when students with disabilities should participate in new curriculum efforts has complicated policy and teaching and raised concerns about long-term planning for children with disabilities when they leave school and attempt to find work.
The Role of Education
The emerging global telecommunications network is reshaping social and political institutions of every nation and creating a new global dynamic, one that schools must join as a way of providing pupils with access to the new work force tools (Ho & Sung, 1994). One implication of the economic change is that schools are being forced to give equal status to the pre-college and vocational curricula, because it is clear that most students do not attend college. Children who have access to computers and technology in their schools have an advantage in learning and in future preparation for career paths. The "computer savvy employee" already earns 15% more than workers with no computer knowledge (Technology in Education, 1995). This fact represents a challenge to schools and raises long-term concerns about at- risk students and students with disabilities, mainly the need to ensure that technology skills are introduced to all students, including those with disabilities, and that preparations are made to develop transitions from school to work. The influence of the "global economy," demands for higher standards in education, and the general school reform movement cause problems for inclusion advocacy.
The New Curriculum
Former ways of designing curricula are competing with new experiments in student centered models that provide greater discretion for the teacher and students. There is a shift from whole class to small-group instruction, from lecture to coaching, and from summative tests to performance assessment, or a shift from passive to active roles in the learning environment (Perelman, 1991).
Safe Schools
The public has not supported school reforms enthusiastically. Believing that higher standards and innovative learning activities are important, and should be apparent to the public, educators have been disappointed to discover that most opinion polls show the public believes discipline and safety are more important (Public Agenda, 1994). Clearly the public does not believe that the typical school meets minimum prerequisites for safety. And while many children and teens are killed each week in violent incidents outside of school and automobile accidents, the number of students killed by guns in schools has attracted widespread media attention and shaped public attitudes about school safety. To secure support for reform, schools must first assure the public that effective discipline and safety standards exist. The public wants schools that are safe and that have high academic achievement, but often the perceptions about how this should be done is to return to a mythical past when schools were thought to be excellent in the "good old days."
The Casey Foundation (1994;2000) warns that nearly 4 million American children are growing up in "severely distressed neighborhoods" with these risk factors: poverty, female-headed families, high school dropouts, unemployment, and reliance on welfare. There has been a decline of critical institutions, according to the report, with weakening of churches, clubs, social organizations, neighborhood networks, and small businesses. One out of every six children lived in overcrowded housing, children of color constituted the majority of kids living in severely distressed neighborhoods, and one in every five children lived below the poverty line. Facts such as these indicate an ominous trend for education and society, putting competing demands on schools and teachers to meet a variety of needs beyond academic preparation of pupils.
Vocational Education
In keeping with trends in the general school curriculum, vocational educators are calling for programming that is embraces critical thinking and that is learner centered, diversified, and emphasizes lifelong learning. Both the changing job market and the higher level of technical skills required in employment have implications for youth with disabilities and school curriculums. For the next two decades, some fear a serious labor shortage. This should be good news for youth with disabilities because job prospects are good.
Special Education
Reynolds (1991), an advocate
of the "Regular Education Initiative," has long argued for a continuum
of services in order to establish integrated programs for persons with
disabilities. Fuchs and Fuchs (1995) also support the continuum, saying
that sometimes separate is better. But courts are taking the position that
any placement or any school related activities of children with disabilities
must be determined in the best interest of the child on a case-by-case
basis (Osborne & Dimattia 1994). Also, because appeals courts issued
rulings in favor of the inclusion of students with severe disabilities,
it seems certain that inclusion is a not just a trend in education. As
explained below, the U.S. Supreme Court decision in Cedar
Rapids Community School District v. Garrett F. [20 U.S.C. §
1401(a)(17)] has supported inclusion of a boy with severe disabilities.
All over the nation students with disabilities will be entering regular
classrooms, at all levels, in unprecedented numbers, with obvious implications
for special education. The following table shows the number and percentage
of students by category of disability in all states.
Source: 22nd Annual Report to Congress. U.S. Department of Education
Education has never been so embattled as it has for the last twenty years. While there have always been criticisms of education, this is the first time in history that the public believes that education is failing, although this is perplexing to some writers. It is also a period in which an increasing number of children entering schools come from poor and immigrant families, those without the clout to affect local levies and board elections. The new literacy, new business demands, and requirements for employment are serious obstacles to many students with disabilities and to many of their peers.
THE ERA OF INCLUSION
The term inclusion does not appear in federal law or regulations, but its use to refer to the concept of integration of students with disabilities has become standard, and many court cases use the term. In the literature, one will encounter "inclusion," "full inclusion," "integration," "full integration," "inclusive schools," "inclusive education," and unified system"--all terms used to describe the philosophy and the practices of the full participation of students with disabilities in regular education classrooms. There seem to be two general approaches to inclusion: inclusion and full inclusion.
Inclusion represents a belief that students with disabilities belong in regular program of the school where special services are available to support the effort (Biklen, 1992). Full inclusion apparently has two variations: (a) the belief that special education should be dismantled, and (b) special education should exist only in the regular classroom. Advocates of full inclusion are sometimes referred to disparagingly as "radical" inclusionists. These approaches form the boundaries of the debate about inclusion.
The goal of inclusion is to assure that all children are educated in the same classrooms as peers without disabilities. Objections to inclusion by many national organizations, as stated in their position papers, do not attack the fact that many students benefit from programs in the regular classroom. Rather, they claim that some children with specific kinds of disabilities or giftedness are better served in a resource room or other kind of placement. Using the language of PL 101-476, the Individuals with Disabilities Education Act (IDEA), they assert that special education students must be educated in the least restrictive environment (LRE), as determined by assessments and the individualized education program (IEP). Advocates of full inclusion believe that all children should be in regular classrooms. Between these positions disputants use arguments to support their positions, with advocates often invoking civil rights principles. (See an overview of the 1997 amendments to IDEA).
The terms "general education" and "regular classroom" are used in the literature and court cases, stemming from the historical separation of special education in the school. In fact, a running debate among special education writers over several years concerning inclusion has been called the "Regular Education Initiative." Today, "general" and "regular" are used interchangeably to refer to that part of the school program that is not special education. Most general education teachers think of themselves in terms of the grades or subjects they teach, such as "fifth-grade teacher" or "science teacher." Special education personnel historically had a different frame of reference, seeing special education as their responsibility, separated from the rest of the school. For purposes of clarity, references to "general education" or "regular classroom" are used in this text to refer to non-special education programs.
Attempts to integrate students with disabilities have, until recently, relied exclusively on the willingness of certain teachers to volunteer to accept students in their classrooms. Adams (1993) put it this way:
Pressure to integrate (include) children with disabilities in general education can be traced to three general sources. One influence has been the published arguments and commentary of professional educators, known as the "Regular Education Initiative" (REI), which actually dates back to the early 1960's. Another source has been the pressure of national organizations, particularly the National Association of State Boards of Education (NASBE). Most important have been the combined effects of legislation and litigation. However, all of these can be traced to the influence of the "normalization" trend that began in Scandinavia in the 1950's and spread throughout most Western nations, impacting the United States and Canada (Wolfensberger). This trend influenced the "deinstitutionalization" movement in the United States of the 1960s (Blatt, 1969). The concepts of normalization, mainstreaming, and inclusion share the same philosophical roots.
THE REGULAR EDUCATION INITIATIVE
The "Regular Education Initiative" (REI) has been a continuing academic debate about the efficacy of special education programs (Will, 1986; Reynolds, Wang, & Walberg, 1987; Jenkins, Pious, & Jewell, 1990; Maheady & Algozzine, 1991; Thousand & Villa, 1991). It was greatly stimulated by discussions opened by staff members in the Reagan administration who were concerned about the increase in the number of students served by schools under PL 94-142. Baker, Wang, and Walberg (1995) have said that the recent inclusion movement emanated from a report of the National Academy of Sciences (Heller, Holtzman, & Messick, 1982), which concluded that the classification and placement of children in special education was ineffective and discriminatory. The report used this terminology in its recommendations, that "children be given noninclusive or extra-class placement for special services only if (a) they can be accurately classified, and only if (b) noninclusion demonstrates superior results" (p. 33).
For a number of years the REI has been an advocacy, mostly by university professors and professionals, about serving students in general education classrooms, reducing the complications and expense caused by assessment and programming needs, and improving academic preparation. Opponents offer reasons why schools should not embrace REI. As a theoretical debate among special education professionals, it has not had much direct impact on inclusion.
NATIONAL ASSOCIATION OF STATE BOARDS OF EDUCATION (NASBE)
A more significant force has been the actions of the National Association of State Boards of Education (NASBE), whose members have direct influence on state regulations in special education matters. NASBE printed a special report about educational services for children with disabilities in 1992, Winners All: A Call for Inclusive Schools, (NASBE, 1992), which was a call for radical reform of special education. This was significant because NASBE represents key decision makers who can affect state legislation and regulations. The report noted the growth of special education as a "vast and separate bureaucracy," and it was highly critical of the segregation of children with disabilities:
LEGISLATION AND LITIGATION
While federal legislation set the stage for the emergence of inclusion, litigation has secured it. Many laws have had indirect and unintended effects leading up to inclusion, even those not directly involved with special education---The National Defense Education Act (NDEA) in 1958, The Elementary and Secondary Education Act (ESEA) in 1965, The Education of Handicapped Children Act (EHA) in 1975, and The Bilingual Education Act (BEA) of 1968. The combined effect of such legislation was to vastly increase the number of professionals working in public schools, many with little or no teaching responsibilities. In turn, this led to a significant financial burden on local school districts. The financial problem is likely to worsen as student enrollment increases, public support for taxation weakens, and such programs as vouchers drain funds from public schools.
The Americans with Disabilities Act (ADA) was signed into law in July of 1990. Simply referred to as ADA, it is a basic civil rights law for persons with disabilities. It extends to people with disabilities the same civil rights enjoyed by others through the Civil Rights Act of 1964, including protection against discrimination on the bases of race, color, sex, national origin, and religion. It provides for protection in employment, public accommodations, telecommunications, and transportation. ADA requires that:
IDEA 97
| If you want a full copy of the
new law, you can find it at:
http://www.ed.gov/offices/OSERS/IDEA on the web site of the Office of Special Education and Rehabilitative Services (OSERS).
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If you want specific information about PL 105-7 aggregated
by topical interests, click on these links:
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MAJOR ISSUES The final regulations accompanying the Individuals with Disabilities Education Act (IDEA) amendments of 1997 appear in the March 12th Federal Register. Here are some of the major issues addressed in this package of regulations: 1) IEPS & GENERAL CURRICULUM: Prior to 1997, the law did not specifically address general curriculum involvement of disabled students. The 1997 Amendments shifted the focus of the IDEA to one of improving teaching and learning, with a specific focus on the Individualized Education Program (IEP) as the primary tool for enhancing the child’s involvement and progress in the general curriculum. The final regulations reflect the new statutory language which requires that the Individualized Education Program for each child with a disability include:
The 1997 amendments specifically require that, as a condition of State eligibility for funding under Part B of IDEA, children with disabilities are included in general State and district-wide assessment programs. The amendments also address timelines and reporting requirements. The final regulations essentially incorporate these statutory provisions on general State and district-wide assessments verbatim. These provisions require that States and LEAs must:
Prior to 1997, the law did not include a regular education teacher as a required member of the Individualized Education Program team. Under the 1997 IDEA amendments, the IEP team for each child with a disability now must include at least one of the child’s regular education teachers, if the child is, or may be, participating in the regular education environment. The new law also indicates that the regular education teacher, to the extent appropriate, participates in the development, review and revision of the IEP of the child. The final regulations package clarifies that:
Neither the old or revised IDEA speaks directly to the issue of students with disabilities graduating with a regular high school diploma. However, the 1997 Amendments placed greater emphasis on involvement of disabled students in the general curriculum and in State and district-wide assessment programs. The final regulations incorporate the Department’s long-standing policy position clarifying that:
Prior to 1997, the statute only specifically addressed the issue of discipline in a provision that allowed personnel to remove a child to an interim alternative educational placement for up to 45 days if the child brought a gun to school or to a school function. The IDEA ‘97 incorporated prior court decisions and Department policy that allows schools to remove a child for up to ten school days at a time for any violation of school rules as long as there is not a pattern, and children with disabilities can not be long-term suspended or expelled from school for behavior that is a manifestation of his or her disability and services must continue for children with disabilities who are suspended or expelled from school. The IDEA ‘97 also expanded the authority of school personnel to remove to an interim alternative educational placement for up to 45 days to apply to all dangerous weapons and to knowing possession of illegal drugs and sale or solicitation of the sale of controlled substances and added a new ability of schools to request a hearing officer to remove a child for up to 45 days if keeping the child in his or her current placement is substantially likely to result in injury to the child or others. The amendments added provisions requiring schools to assess children’s troubling behavior and develop positive behavioral interventions to address that behavior, and defining how to determine whether behavior is a manifestation of a child’s disability. The final regulations incorporate these statutory provisions and provide additional specificity on a number of key issues:
Neither the old nor revised IDEA included Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder as a separate disability category. Relying on the Department’s long-standing policy, the final regulations clarify that:
Prior to the 1997 IDEA amendments, States could define and require Local Education Agencies to use the developmental delay category for children ages 3 through 5. The 1997 IDEA amendments allowed States to define developmental delay for children ages 3 through 9 and authorized LEAs to choose to use the category and, if they do, they are required to use the State’s definition. The final regulations clarify that:
Prior to 1997, the law included only the term “day” that was interpreted by the Department to mean “calendar day.” Now, law uses the terms “day,” “business day,” and “school day.” The final regulations clarify that:
The IDEA Amendments of 1997 contain two specific provisions on public charter schools, including requiring that: (1) in situations in which charter schools are public schools of the LEA, the LEA must serve children with disabilities in those schools in the same manner that it serves children with disabilities in its other schools, and provide Part B funds to those schools in the same manner as it provides Part B funds to its other schools; and (2) An SEA may not require a charter school that is an LEA to jointly establish its eligibility with another LEA unless it is explicitly permitted to do so under the State’s charter school statute. The final regulations clarify that:
Prior to 1997, the law did not extensively address the education of children with disabilities placed in private schools by their parents. These children were served based on the limited provisions of the statutes and on the Education Department’s General Administrative Regulations (EDGAR) and the Department’s long-standing policy interpretation. The 1997 amendments included some of the old language and incorporated the Department’s long-standing policy interpretation. Specifically, the final regulations clarify that:
Find this report at http://www.ed.gov/offices/OSERS/IDEA/whatsnew.html |
The issues identified above are not comprehensive enough to show the many changes that affect many aspects of the law. While there were numerous changes in IDEA 97 dealing with administration and funding formulas, the most important changes for children, teachers, and parents are:
Least Restrictive Environment (LRE)
For much of the time since passage of PL 94-142, concern in schools has been devoted to providing a continuum of services for children with disabilities. The concept of the "least restrictive environment" has meant, operationally, placement in a program that is as close to general education class placement as practicable. Judgments made about placement are based on decisions made by persons who are guided by social considerations, rather than medical or psychological criteria. Culling, Sabornie, and Crossland (1992) describe "social mainstreaming" as an important goal of integration, including peer acceptance, friendships, and participation in group activities. The beliefs, values, orientations, and personal views of decisions makers have determined placement decisions, and this has often been influenced by how individual communities or faculties react to the notion of placing students with disabilities in general education classrooms.
It has become increasingly difficult to argue for self-contained placements. While the LRE concept has implied physical integration of children, this concept also implies social integration. The overriding concern is that children with disabilities will develop more normal social skills if they are integrated in general education, which may outweigh academic needs for some pupils. The LRE provisions in law have become the basis for expansion of inclusion in the last few years.
The concept of the LRE is at the heart of the debate over inclusion of children with disabilities in general education classrooms, and the LRE is the mechanism for justifying general education placement. To the courts, it is becoming increasingly apparent that the LRE for most children is recognized as the regular classroom in the general education program. In IDEA 97 there is considerable attention to the least restrictive environment and particular emphasis on placement in the "general education curriculum" with appropriate services.
Individual Educational Program (IEP)
Schools are required to develop
an individual educational program (IEP) for each student with disabilities.
An IEP includes the following concepts: (1) the program is designed for
a single child, not a group of similar children; (2) it should only include
those elements related to the educational needs of the child, including
related services, and (3) the IEP statement is not a plan from which a
program is developed, but a specific program to be followed. Children
who are privately placed by parents receive a
services plan rather than
an IEP.
Regulations further require that the IEP contain, at a minimum, (1) information on the child's current level of functioning; (2) annual goals, including short-term objectives; (3) special and related services; (4) dates the services will be provided; and (5) criteria for evaluation of the program. In addition to these minimum requirements, local or state education agencies may require additional information. Amendments of PL 101-476 require that the IEP for all students at the age of 16 also include plans for transition to postsecondary programs and services, and these have been amended in PL 105-17 to inform the child at age 14 that transition will be approaching.
While the IEP was once controversial, it is now routine and can even be generated by computer programs or forms that are easily completed. In any event, the use of the IEP, especially as it involves teachers, sets the child with a disability apart from other pupils. It certainly represents "extra" work in the minds of teachers, and it emphasizes that the child is "special." The IEP as "a program to follow" for the individual child also complicates issues pertaining to grading and comparisons made among children in the same classroom.
The U.S. Department of Education (1995) has concluded that the IEP has increasingly become the sole curriculum offered to many students (Pugach & Warger, 1993); it addresses only a narrow range of content with few linkages to the general curriculum (Giangreco, Dennis, Edelman & Cloninger, 1994); about 25% of parents do not participate at all in their child's IEP meeting (Katsiyannis & Ward, 1992); students of low-income levels, and culturally and linguistically diverse backgrounds have even lower levels of parental participation (Harry, 1992; Vincent, 1992; Singer & Butler, 1992). The reasons cited for lack of parent involvement included cultural differences, logistical difficulties, intimidation by IEP team members, (Tucker, Goldstein & Sorenson, 1993). Finally, the IEP is used mainly for legal accountability, lacking connection to system goals or to the general curriculum, to the progress of students with disabilities (Brauen, O'Reilly & Moore, 1994).
Individualized Education Program Requirements of IDEA 97
| §300.347 Content of IEP.
(a) General. The IEP for each child with a disability must include— (1) A statement of the child's present levels of educational performance, including - (i) How the child's disability affects the child's involvement and progress in the general curriculum (i.e., the same curriculum as for nondisabled children); or (ii) For preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; (2) A statement of measurable annual goals, including benchmarks or short-term objectives, related to - (i) Meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum (i.e., the same curriculum as for nondisabled children), or for preschool children, as appropriate, to participate in appropriate activities; and (ii) Meeting each of the child's other educational needs that result from the child's disability; (3) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child— (i) To advance appropriately toward attaining the annual goals; (ii) To be involved and progress in the general curriculum in accordance with paragraph (a)(1) of this section and to participate in extracurricular and other nonacademic activities; and (iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section; (4) An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in paragraph (a)(3) of this section; (5)(i) A statement of any individual modifications in the administration of State or district-wide assessments of student achievement that are needed in order for the child to participate in the assessment; and (ii) If the IEP team determines that the child will not participate in a particular State or district-wide assessment of student achievement (or part of an assessment), a statement of - (A) Why that assessment is not appropriate for the child; and (B) How the child will be assessed; (6) The projected date for the beginning of the services and modifications described in paragraph (a)(3) of this section, and the anticipated frequency, location, and duration of those services and modifications; and (7) A statement of - (i) How the child's progress toward the annual goals described in paragraph (a)(2) of this section will be measured; and (ii) How the child's parents will be regularly informed (through such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of - (A) Their child's progress toward the annual goals; and (B) The extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year. (b) Transition services. The IEP must include— (1) For each student with a disability beginning at age 14 (or younger, if determined appropriate by the IEP team), and updated annually, a statement of the transition service needs of the student under the applicable components of the student's IEP that focuses on the student's courses of study (such as participation in advanced-placement courses or a vocational education program); and (2) For each student beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages. (c) Transfer of rights. In a State that transfers rights at the age majority, beginning at least one year before a student reaches the age of majority under State law, the student's IEP must include a statement that the student has been informed of his or her rights under Part B of the Act, if any, that will transfer to the student on reaching the age of majority, consistent with §300.517. (d) Students with disabilities convicted as adults and incarcerated in adult prisons. Special rules concerning the content of IEPs for students with disabilities convicted as adults and incarcerated in adult prisons are contained in §300.311(b) and (c). (Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii)) |
The IEP form and process
remains unchanged but "present levels of educational performance" must
now include a
statement of how the disability
affects involvement and progress in the general curriculum. It must also
include a statement about special education and related services, as well
as the supplementary aids and services, that the child or youth needs in
order to participate in the general curriculum, extracurricular, and other
nonacademic activities [Section 614(d)(1) (A)(iii)].
| Discipline Procedures
§300.519 Change of placement for disciplinary removals. For purposes of removals of a child with a disability from the child's current educational placement under §§300.520-300.529, a change of placement occurs if— (a) The removal is for more than 10 consecutive school days; or (b) The child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another. (Authority: 20 U.S.C. 1415(k)) §300.520 Authority of school personnel. (a) School personnel may order— (1)(i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child’s current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under §300.519(b)); (ii) After a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under §300.121(d); and (2) A change in placement of a child with a disability to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days, if - (i) The child carries a weapon to school or to a school function under the jurisdiction of a State or a local educational agency; or (ii) The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency. (b)(1) Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under §300.519, including the action described in paragraph (a)(2) of this section— (i) If the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal described in paragraph (a) of this section, the agency shall convene an IEP meeting to develop an assessment plan. (ii) If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and, modify the plan and its implementation as necessary, to address the behavior. (2) As soon as practicable after developing the plan described in paragraph (b)(1)(i) of this section, and completing the assessments required by the plan, the LEA shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions. (c)(1) If subsequently, a child with a disability who
has a behavioral intervention plan and who has been removed from the child’s
current educational placement for more than 10 school days in a school
year is subjected to a removal that does not constitute a change of placement
under §300.519, the IEP team members shall review the behavioral intervention
plan and its
(2) If one or more of the team members believe that modifications are needed, the team shall meet to modify the plan and its implementation, to the extent the team determines necessary. (d) For purposes of this section, the following definitions apply: (1) Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). (2) Illegal drug— (i) Means a controlled substance; but (ii) Does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law. (3) Weapon has the meaning given the term "dangerous weapon" under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code. (Authority: 20 U.S.C. 1415(k)(1), (10)) §300.521 Authority of hearing officer. A hearing officer under section 615 of the Act may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer, in an expedited due process hearing - (a) Determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or to others; (b) Considers the appropriateness of the child's current placement; (c) Considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and (d) Determines that the interim alternative educational setting that is proposed by school personnel who have consulted with the child’s special education teacher, meets the requirements of §300.522(b). (e) As used in this section, the term substantial evidence means beyond a preponderance of the evidence. (Authority: 20 U.S.C. 1415(k)(2), (10)) §300.522 Determination of setting. (a) General. The interim alternative educational setting referred to in §300.520(a)(2) must be determined by the IEP team. (b) Additional requirements. Any interim alternative educational setting in which a child is placed under §§300.520(a)(2) or 300.521 must— (1) Be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; and (2) Include services and modifications to address the behavior described in §§300.520(a)(2) or 300.521, that are designed to prevent the behavior from recurring. (Authority: 20 U.S.C. 1415(k)(3)) §300.523 Manifestation determination review. (a) General. If an action is contemplated regarding behavior described in §§300.520(a)(2) or 300.521, or involving a removal that constitutes a change of placement under §300.519 for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the LEA that applies to all children— (1) Not later than the date on which the decision to take that action is made, the parents must be notified of that decision and provided the procedural safeguards notice described in §300.504; and (2) Immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review must be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action. (b) Individuals to carry out review. A review described in paragraph (a) of this section must be conducted by the IEP team and other qualified personnel in a meeting. (c) Conduct of review. In carrying out a review described in paragraph (a) of this section, the IEP team and other qualified personnel may determine that the behavior of the child was not a manifestation of the child's disability only if the IEP team and other qualified personnel - (1) First consider, in terms of the behavior subject to
disciplinary action, all relevant information,
(i) Evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the child; (ii) Observations of the child; and (iii) The child's IEP and placement; and (2) Then determine that - (i) In relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement; (ii) The child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and (iii) The child's disability did not impair the ability of the child to control the behavior subject to disciplinary action. (d) Decision. If the IEP team and other qualified personnel determine that any of the standards in paragraph (c)(2) of this section were not met, the behavior must be considered a manifestation of the child's disability. (e) Meeting. The review described in paragraph (a) of this section may be conducted at the same IEP meeting that is convened under §300.520(b). (f) Deficiencies in IEP or placement. If, in the review in paragraphs (b) and (c) of this section, a public agency identifies deficiencies in the child's IEP or placement or in their implementation, it must take immediate steps to remedy those deficiencies. (Authority: 20 U.S.C. 1415(k)(4)) §300.524 Determination that behavior was not manifestation of disability. (a) General. If the result of the review described in §300.523 is a determination, consistent with §300.523(d), that the behavior of the child with a disability was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided in §300.121(d). (b) Additional requirement. If the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action. (c) Child's status during due process proceedings. Except as provided in §300.526, §300.514 applies if a parent requests a hearing to challenge a determination, made through the review described in §300.523, that the behavior of the child was not a manifestation of the child's disability. (Authority: 20 U.S.C. 1415(k)(5)) §300.525 Parent appeal. (a) General. (1) If the child's parent disagrees with a determination that the child's behavior was not a manifestation of the child's disability or with any decision regarding placement under §§300.520-300.528, the parent may request a hearing. (2) The State or local educational agency shall arrange for an expedited hearing in any case described in paragraph (a)(1) of this section if a hearing is requested by a parent. (b) Review of decision. (1) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child's behavior was not a manifestation of the child's disability consistent with the requirements of §300.523(d). (2) In reviewing a decision under §300.520(a)(2) to place the child in an interim alternative educational setting, the hearing officer shall apply the standards in §300.521. (Authority: 20 U.S.C. 1415(k)(6)) §300.526 Placement during appeals. (a) General. If a parent requests a hearing or an appeal
regarding a disciplinary action described in §300.520(a)(2) or 300.521
to challenge the interim alternative educational setting or the manifestation
determination, the child must remain in the interim alternative educational
setting pending the decision of the hearing officer or until the expiration
of the time period provided for in §300.520(a)(2) or 300.521, whichever
occurs first, unless the parent and the State agency or local
(b) Current placement. If a child is placed in an interim
alternative educational setting pursuant to §300.520(a)(2) or 300.521
and school personnel propose to change the child's placement after expiration
of the interim alternative placement, during the pendency of any proceeding
to challenge the proposed change in placement the child must remain in
the current placement (the child's placement prior to the interim alternative
educational setting), except as provided in paragraph (c) of
(c) Expedited hearing. (1) If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceedings, the LEA may request an expedited due process hearing. (2) In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards in §300.521. (3) A placement ordered pursuant to paragraph (c)(2) of this section may not be longer than 45 days. (4) The procedure in paragraph (c) of this section may be repeated, as necessary. (Authority: 20 U.S.C. 1415(k)(7)) §300.527 Protections for children not yet eligible for special education and related services. (a) General. A child who has not been determined to be
eligible for special education and related services under this part and
who has engaged in behavior that violated any rule or code of conduct of
the local educational agency, including any behavior described in §§300.520
or 300.521, may assert any of the protections provided for in this part
if the LEA had knowledge (as determined in accordance with paragraph (b)
of this section) that the child was a child with a disability before the
(b) Basis of knowledge. An LEA must be deemed to have knowledge that a child is a child with a disability if - (1) The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special education and related services; (2) The behavior or performance of the child demonstrates the need for these services, in accordance with §300.7; (3) The parent of the child has requested an evaluation of the child pursuant to §§300.530-300.536; or (4) The teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency's established child find or special education referral system. (c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph, the agency— (1) Either— (i) Conducted an evaluation under §§300.530-300.536, and determined that the child was not a child with a disability under this part; or (ii) Determined that an evaluation was not necessary; and (2) Provided notice to the child's parents of its determination under paragraph (c)(1) of this section, consistent with §300.503. (d) Conditions that apply if no basis of knowledge. (1) General. If an LEA does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with paragraph (d)(2) of this section. (2) Limitations. (i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under §300.520 or 300.521, the evaluation must be conducted in an expedited manner. (ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services. (iii) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, including the requirements of §§300.520-300.529 and section 612(a)(1)(A) of the Act. (Authority: 20 U.S.C. 1415(k)(8)) §300.528 Expedited due process hearings. (a) Expedited due process hearings under §§300.521-300.526 must— (1) Meet the requirements of §300.509, except that a State may provide that the time periods identified in §§300.509(a)(3) and §300.509(b) for purposes of expedited due process hearings under §§300.521-300.526 are not less than two business days; and (2) Be conducted by a due process hearing officer who satisfies the requirements of §300.508. (b)(1) Each State shall establish a timeline for expedited due process hearings that results in a written decision being mailed to the parties within 45 days of the public agency’s receipt of the request for the hearing, without exceptions or extensions. (2) The timeline established under paragraph (b)(1) of this section must be the same for hearings requested by parents or public agencies. (c) A State may establish different procedural rules for expedited hearings under §§300.521-300.526 than it has established for due process hearings under §300.507. (d) The decisions on expedited due process hearings are appealable consistent with §300.510. (Authority: 20 U.S.C. 1415(k)(2), (6), (7)) §300.529 Referral to and action by law enforcement and judicial authorities. (a) Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability. (b)(1) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime. (2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act. (Authority: 20 U.S.C. 1415(k)(9)) |
Definition of Disabled
In PL 94-142, children with disabilities were defined as "handicapped" within the categories of mentally retarded, hard of hearing, deaf, speech impaired, visually impaired, seriously emotionally disturbed, orthopedic ally impaired, other health impaired, deaf-blind, multiple disabilities, or as having specific learning disabilities, who because of these impairments need special education and related services (Section 121a.5). This definition did not include those who might be considered mildly or moderately emotionally disturbed. The amendments of PL 101-476 expanded the categories to include autism and traumatic brain injury, and also provided that the U.S. Department of Education would study the issue of providing special education to students with attention deficit disorders. The term disabled was used instead of handicapped. IDEA 97 retains "serious" emotional disturbance as a category but refers to it as simply emotional disturbance.
The term developmental delay may be used as a category for children, ages 3 to 9, and refers to physical development, cognitive development, communication development, social or emotional development, or adaptive development; which may result in the need for special education and related services.
As will be described elsewhere in this text, the greatest problems for schools concern the determination of learning disabilities and the mounting problems associated with diagnosing and serving children with limited English proficiency.
Assessment/Nondiscriminatory Assessment
Evaluation for a Disability
The IDEA 97 amends the way
in which children with disabilities are evaluated
initially
to determine whether or not they have a disability, and reevaluated every
three years to determine whether or not they continue to have a disability.
Of particular importance is parental participation:
| §300.345 Parent participation.
(a) Public agency responsibility—general. Each public agency shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including— (1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and (2) Scheduling the meeting at a mutually agreed on time and place. (b) Information provided to parents. (1) The notice required under paragraph (a)(1) of this section must— (i) Indicate the purpose, time, and location of the meeting and who will be in attendance; and (ii) Inform the parents of the provisions in §300.344(a)(6) and (c) (relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child). (2) For a student with a disability beginning at age 14, or younger, if appropriate, the notice must also— (i) Indicate that a purpose of the meeting will be the development of a statement of the transition services needs of the student required in §300.347(b)(1); and (ii) Indicate that the agency will invite the student. (3) For a student with a disability beginning at age 16, or younger, if appropriate, the notice must— (i) Indicate that a purpose of the meeting is the consideration of needed transition services for the student required in §300.347(b)(2); (ii) Indicate that the agency will invite the student; and (iii) Identify any other agency that will be invited to send a representative. (c) Other methods to ensure parent participation. If neither parent can attend, the public agency shall use other methods to ensure parent participation, including individual or conference telephone calls. (d) Conducting an IEP meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place, such as - (1) Detailed records of telephone calls made or attempted and the results of those calls; (2) Copies of correspondence sent to the parents and any responses received; and (3) Detailed records of visits made to the parent's home or place of employment and the results of those visits. (e) Use of interpreters or other action, as appropriate. The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at the IEP meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English. (f) Parent copy of child's IEP. The public agency shall give the parent a copy of the child's IEP at no cost to the parent. (Authority: 20 U.S.C. 1414(d)(1)(B)(i)) |
Initial evaluations. Prior to the first special education placement, a full and individual initial evaluation of the child must be conducted to determine if the child has a disability defined by IDEA 97 in Section 602(3) and the educational needs. The new process requires a review by the IEP team of existing evaluation data, including evaluations and information provided by the parents, current classroom-based assessments and observations, and observations of teachers and related services providers. After the review, with parental input, the team determines if additional data are needed to determine if the child has a specific category of disability in Section 602(3). This process prevents the routine use of expensive and unnecessary tests and evaluations, which may hasten evaluation to a conclusion as well as holding down costs. Parental involvement at the point of eligibility determination is a new requirement, and parents must be provided with a copy of the report.
As in previous requirements the team must determine the present levels of education performance and needs of the child, whether the child needs special education and related services, and if any additions or modification to special education and related services are needed to meet measurable annual IEP goals and participate, as appropriate, in the general curriculum. If the team identifies additional data that are needed, the school must provide testing and other evaluations necessary to meet the requests of the team.
While IDEA 97 requirements for appropriate, nondiscriminatory evaluation practices and other evaluation procedures remain in effect, there is a new requirement that the school must use a variety of assessment tools and strategies to gather relevant functional and developmental information. This information is to address the determination of a disability, to aid team members in assessing the extent of educational needs, and to provide assessment for determination of needs for participation in the general curriculum. While there has been concern about nondiscriminatory evaluation, dating back many decades in special education, IDEA97 has a new requirement called the "Special Rule for Eligibility Determination," which requires that a child not be labeled if the cause of problems are related to a lack of instruction in reading or math or limited English proficiency [Section 614(b)(5)].
Additional procedural
safeguards. "Procedures to ensure that testing and evaluation
materials and procedures utilized for the purposes of evaluation and placement
of children with disabilities will be selected and administered so as not
to be racially or culturally discriminatory. Such materials or procedures
shall be provided and administered in the child's native language or mode
of communication, unless it clearly is not feasible to do so, and no single
procedure shall be the sole criterion for
determining an appropriate
educational program for a child." [Section 612 (a)(6)(B)]
Reevaluations. The amendment states that a reevaluation must be conducted if conditions are warranted or the parent or teacher request an evaluation if "conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years" [Section 614(a)(2)(A)]. Parents participate in the IEP Team. However, parents must provide informed consent before reevaluation, identical to initial evaluation, and this constitutes a new requirement. As in the case of the initial evaluation, if parents do not provide consent the school may proceed with evaluation after taking steps to secure parental consent. With or without parental consent and participation, the team may determine that reevaluation is not necessary, if there is sufficient evidence to determine that the child continue to have a disability. In this case, an evaluation is not necessary, unless the parents insist. Otherwise, all matters pertaining to parental notification, rights of parents, and copies of the evaluation report must be provided to parents.
Due to a checkered history of misdiagnosis of minority children, assessment procedures must not discriminate racially or culturally. At a minimum, tests and other evaluation materials must be administered in the child's native language, or other mode of communication, by trained personnel, and validated for the purpose for which they are used. Tests and evaluation materials should assess areas of academic need, not solely provide a single intelligence quotient (IQ). Tests administered to children with various sensory, motor, or speaking skills should reflect the child's aptitude, not the child's deficits in these skills. No single procedure is to be used as the sole criterion for determining an appropriate program. A multidisciplinary team must be involved in the assessment. The child should be assessed in all areas of suspected disability. The paradox is that the more tests that are administered, the more likely something will be found wrong with the child's performance.
Assessment is complicated for children who are minorities, immigrants, or who have limited English proficiency. There are few valid tests or ways to measure children from several hundred different linguistic and cultural backgrounds. Distinguishing among children who have problems in schools is difficult if it cannot be determined that the problems are caused by a disability or by cultural and linguistic differences. The school has a dilemma, needing to serve those with disabilities but also needing to avoid misdiagnosis and erroneous placement.
Participation in State/District Assessments. A number of districts and states have excluded children with disabilities from major testing programs in an effort to keep their district averages high. There are also concerns about what types of accommodations to provide students taking tests. IDEA 97 explicitly mandates that States shall include children with disabilities, with accommodations when necessary, in State and districtwide assessment programs. If children cannot participate in regular assessments, some form of alternative assessment must be developed to meet the need by the year 2000.
Parental Involvement
Legislation requires that parents be involved in all aspects of a child's educational program from the initial referral to the ultimate placement decision. In order to ensure this involvement, schools must inform parents of meetings, arrange them at times and locations convenient to the parents, and allow parents to actively participate in the meetings. All notifications must be far enough in advance to ensure parents the opportunity to attend, and notices must be in the native language of the home. States must develop plans for dealing with parents who choose not to participate. Regardless of these plans, schools must document all efforts in attempting to gain parent participation. The term "parents" is now defined by IDEA 97 to include legal guardians and surrogate parents. [Section 602(19)]. As noted above, IDEA 97 adds specific
Due Process Procedures
Due process includes the
right to examine the records, obtain an independent evaluation, receive
prior notice before a change in an IEP or program, and a right to disagree
with and appeal a decision made by the school. This provides parents the
option of requesting a due process hearing, conducted by an impartial hearing
officer, in which both parties to the disagreement present their side of
the conflict.
|
"....No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." US Constitution Amendment XIV
|
Numerous references to due process can be found in the tables above relating to IDEA 97 regulations. Due process is considered in several places, and is especially important in new law pertaining to criminal behavior. IDEA 97 delineates the States' obligations for establishing a mediation system for the voluntary participation of parents and children:
Not only are schools responsible for the special education of students with disabilities but also to provide "related services" including:
IDEA 97 defines supplementary aids and services as "...aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section 612(a)(5)" [requirements concerning least restrictive environment]. [Section 602(29)].
Case Law and Inclusion
The fourth Circuit U.S. Court of Appeals (1991) upheld a lower court's decision awarding (Florence County School District v. Carter) $37,500 to the family for reimbursement of the costs of educating their daughter who had been diagnosed with learning disabilities. The child, at the age of 16, was said to be several years behind her peers and was provided with an IEP to allow her individual tutoring for about three hours each week. The parents objected to the IEP, the hearing officer agreed with the school, the parents withdrew her from the school and placed her in a private school in a different city. The family brought suit against the school to recover the expenses of the private education. The public school resisted, and the matter went through the court system. The U.S. Supreme Court held in favor of the parents, mainly because the parents were able to show that their daughter had not only made significant achievement gains in a period of three years, she also obtained a high school diploma because of the private school education. The court agreed that the private education was appropriate because of the achievement gains, and reimbursement was necessary to assure that the education was free.
The court indicated in the ruling that parents may not remove their children to private schools unless they can prove that the education in the public school is inappropriate, in which case reimbursement may be paid. The court also indicated that public education authorities who want to avoid reimbursing parents for the private education can either give the child a free, appropriate public education in a public setting or place the child in an appropriate private setting of the state's choice.
Case law leading to the concept of inclusion has been developing for many years, beginning with the PARC case (Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania,) and Mills v. Board of Education. In PARC the court findings included the statement that "placement in a regular public school class is preferable" to a "special public school class." The court found in Mills that "placement in a regular public school class" is "preferable."
These cases did much to promote
the concept of mainstreaming as something preferable and achievable for
some children. Just a few years ago, the courts held out "mainstreaming"
as something to strive for. In Mills the District of Columbia
addressed the concluded that the school system used a variety of methods
to exclude children with disabilities from the classroom, including
coercion, delays in assessment,
and even intentional suspensions. The District Court held that no child
with a disability could be excluded from a regular public school assignment
unless the child was provided adequate alternative educational services.
More recently courts have turned the logic around leading to the concept
of inclusion, as described above.
To some courts, inclusion is a right, not a privilege (Oberti v. Clementon Board of Education, 1992). The Circuit Court of Appeals commented on the LRE in federal law: "The Act's strong presumption in favor of mainstreaming would be turned on its head if a parent had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the children from the general education classroom." In a similar vein, the first federal District Court remarked on the concept of inclusion, in regard to Board of Education of Sacramento Unified School District. v. Holland, "As to full inclusion the court accepts the definition . . .that the handicapped child is a full member of a regular education class... Under full inclusion, the child's primary placement is in the regular education class, and the child has no additional assignment to any special class for handicapped children." The curriculum, the child's activities during class assignments, and the responsibility of the school and teacher were addressed by the courts. Courts have recently taken the position that there must be justification for exclusion, but they are reluctant to accept the argument that children with disabilities cannot keep pace in a regular classroom.
Courts are also taking the position that any placement or any school related activities of the child in a general education classroom, or outside the general education classroom, must be determined in the best interest of the child on a case-by-case basis. As Osborne and Dimattia (1994) put it, "days where judges will defer to the expertise of school officials regarding what constitutes the least restrictive enforcement may be over" (p. 12). The most important decision in the trend was Cedar Rapids Community School District v. Garrett F. [20 U.S.C. § 1401(a)(17)], in which the Supreme Court ruled that the school must provide all-day nursing care to a quadriplegic boy, including related medical services. Specifically, the school must provide a ventilator-dependent student with nursing services during school hours for ventilator dependency, urinary bladder catheterization, suctioning of a tracheotomy tube, accommodations for meals, assistance with the ventilator, and someone trained to provide emergency procedures in the of autonomic hyperreflexia.
According to IDEA 97, a proportionate
amount of IDEA funds must be spent on children with disabilities placed
in private schools by their parents. [Section 612(a)(10)(A)].
Parents are now required to provide notice that they intend to transfer
their child to a private
school. If parents do not provide notice, reimbursement for this private
school placement may be reduced or denied [Section 612(a)(10)(C)].
EFFICACY OF SPECIAL EDUCATION
The efficacy of special education programs has long been questioned. Studies by Baller (1936), Charles (1953), and Kennedy (1962) were cited by Johnson (1963) to indicate that special education did not improve the chances of students in securing adult employment. Professional calls for mainstreaming date back to the 1960's when research indicated that students in segregated special classes did not perform better than counterparts in general education, bringing into question the efficacy of special education programs. For example, Johnson (1962) found it paradoxical that children in special classes--- with specially trained teachers, more funding, and smaller classes---could not accomplish the objectives of education at the same rate and levels as similar students who had remained in general education classes. Goldstein, Jordan and Moss (1965) conducted a study in which students were randomly assigned to special education or general education classes, and they compared their performance on academic achievement and tests of social knowledge, finding no differences.
Reynolds and Birch (1977) and Wang, Reynolds, and Walberg (1994 and 1995) have argued that the only important characteristics are those related to instruction. With more than half of all students in categorical special education programs called learning disabled, there is no separate knowledge base for teaching them. If what happens to children when they are in the classroom is not substantially different from those with other labels, then the label is of no particular value to the teacher. With the spread of "resource rooms" to serve children with disabilities, the pattern of segregation began to break down. Resource rooms were used for children with many different labels.
As more teacher training institutions offered generic degrees and states began offering generic certification or multiple- certification for personnel to staff resource rooms, the trend toward generic special education was hastened. Whereas a teacher might have been certified for self-contained categorical rooms, such as mental retardation or learning disabilities, teachers began to be certified to teach both categories. Many universities now have degrees such as "Mild Learning and Behavioral Disorders" which prepares teachers to provide special education to children with the traditional labels of mental retardation, learning disabilities, and behavior or emotional disorders.
Wang, Reynolds, and Walberg (1986) and Reynolds, Wang, and Walberg (1987) maintain there is a need for restructuring of "special and regular education" because special education creates more problems than it solves---for the system and for students--- especially children with mild disabilities. They indicate that more than 80% of students could be classified with learning disabilities by one or more definitions now used. They suggest, among other recommendations, that general education classroom teachers be fully prepared to educate such students, which would reduce or eliminate many special teachers, many of the problems, and expense. Opponents to this view, such as Liberman (1990), believe that learning disabilities is not necessarily a mild condition, as indicated in his statement that ". . .one ought to think twice and maybe a hundred times before fully integrating a child with the full-blown symtomology (sic) of Strauss' syndrome" (p. 562).
Clearly, the greatest problem is the inordinate number of students who may be classified as learning disabled. In 1989 the learning disabled represented about 45% of special education students (Cartwright, Cartwright, & Ward, 1989). As of the 1991- 1992 school year, 48.5% of children in special education were said to have learning disabilities (Lewis, 1991). Currently, 50.1% of all students with disabilities are classified as having learning disabilities, and this represents and 37.8% increase in the last decade. In some local schools it is a major concern because some schools districts report an incidence as high as 65% (Lewis, 1991). Slavin (1989) concluded that special education assumed a substantial burden in attempts to meet the needs of students at risk of school failure, in the fact of facts that research comparing students with mild academic handicaps in special education to those in regular classrooms found few benefits.
Another important factor is that there is significant overlap between what "regular" teachers and "special" teachers do or think they should do with children with disabilities. For the three largest categories of special education---mental retardation, learning disabilities, and emotional disturbance---the methods, materials, and management techniques employed by special educators are virtually identical. Cannon (1992) and colleagues conducted a study of teachers and determined that teachers in general and special education agreed on 82% of essential teaching practices for effective instruction of children with disabilities. If what both special and general education teachers do for children with disabilities is essentially identical, many conclude that it is illogical to support segregated programming, especially if there are no significant differences in achievement.
Baker, Wang, and Walberg (1995) reported on three meta-analyses studies of inclusion, looking for a common measure they called an effect size (effect on learning as measured by achievement and social adjustment). They concluded that the average effect size, interpreted in terms of standard units, ranged form .08 to .44, all positive, meaning that special education students educated in regular classes do somewhat better academically and socially than comparable students in segregated settings. The average for inclusion effects was only 0.195.
More qualitative studies have also shown the effectiveness of inclusion, as well as some problems. Stainback and Stainback (1991) reported the following:
EXCLUSION, MAINSTREAMING AND INCLUSION
In the span of about a quarter century, federal legislation and societal trends and case law have significantly changed treatment of children with disabilities in schools. The majority of children and youth with disabilities now receive special education and related services in general education settings. Forty states have moved aggressively toward the adoption of inclusion as an educational policy, and appeals courts with jurisdiction over 18 states have issued rulings in favor of inclusion of children with severe disabilities (Osborne & Dimattia, 1994).
Although PL 94-142 did not specifically mention or deal with facilities, the basic intent was to ensure that every child with a disability would be afforded a free and appropriate education in the least restrictive setting, which inherently requires accessibility to programs. Section 504 of the Rehabilitation Act of 1973, was explicit, stating that "no otherwise qualified handicapped individual in the United States, as defined in Section 7(6), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance" (PL 92-112, 1973). The regulations implementing Section 504 of the Rehabilitation Act of 1977 are also explicit (Federal Register, 1977, Sec. 504, Sec. C, 84.21), meaning that school buildings as well as instruction must be accessible.
Section 504 regulations require the specific educational programs that are appropriate for students must be accessible, and under inclusion this means the general education classroom. Section 504 protects qualified individuals from discrimination based solely on a disability. The nondiscrimination requirements of the law apply to employers and organizations, which receive financial assistance from any Federal department or agency. Section 504 forbids excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in and have access to program benefits and services. The law also covers discrimination in employment matters. For purposes of employment, qualified individuals with disabilities are persons who, with reasonable accommodation, can perform the essential functions of the job for which they have applied or have been hired to perform. Reasonable accommodation means an employer is required to take reasonable steps to accommodate the disability unless it would cause the employer unnecessary hardship.
Section 504 prohibits individuals with disabilities from being denied the opportunity to participate in or benefit from federally funded recipients' programs, services, or other benefits; access to programs, services, benefits or opportunities to participate as a result of physical barriers; and employment opportunities, including hiring, promotion, training, and fringe be for which they are otherwise entitled or qualified.
There are different standards of compliance in Section 504. A reasonable accommodation limitation is contained in Subpart B covering employment, Subpart E covering postsecondary and vocational education, but there is no limitation in Subpart D pertaining to elementary and secondary education. Thus, the regulation requires schools to meet the individual needs of all students, disabled and nondisabled, to the same extent, although not necessarily identical programs and services. Thus, any "reasonable accommodations limitation" of Title II may not be construed to mean that existing Section 504 standards are undetermined. The relevance of ADA to school buildings and classrooms may be more significant than simple accessibility issues. Title I of the Act addresses reasonable accommodations and essential functions. Title III addresses "readily achievable" accommodations, reasonable modifications, and provision of auxiliary aids and services. If children are denied access to the curriculum and instruction of the general education classroom by placement in special classrooms, the only way they can gain access is to be placed in the general education classroom. This interpretation of the law confronts the "continuum of services" concept directly.
On the other hand, the law does not require that the program be the best or most appropriate, just appropriate. The difficulty is in the determination of appropriateness, a concept that is elusive, ambiguous and open to disagreement. However, schools are supposed to provide programs based on each child's individual needs, as indicated in the IEP, and this could be interpreted to mean that instruction, seating in the general education classroom, acoustics, ability to see the board, and other factors, including health needs of the child, could be factors in determining needs, and therefore subject to evaluation for appropriateness. Thus, it might be reasoned that classroom instructional techniques of the teacher, furnishings, acoustics, or almost any aspect must be improved or altered so that instruction is "accessible" to children with disabilities in the classroom. The impetus for inclusion is based on the facts that (a) students in special education do not make achievement scores higher than peers in mainstream classes, (b) special education does not give an advantage for employment after school, (c) teachers in special and general classes use the same methodologies, and (d) the costs of special education are much higher for essentially the same kind of results. Thus, the complications and added expense of special education seem illogical to many, especially in a time of fiscal limits.
According to one point of
view, inclusion is a way to serve students with disabilities in general
education classrooms, reduce the complications and expense caused by assessment
and programming needs, and maintain or improve academics and social adjustment
of students with disabilities. The other point of view, shared by the American
Federation of Teachers and the Learning Disabilities Association, opposes
inclusion in the belief that a full continuum of services provides better
choices for children. If inclusion becomes widespread, as now seems inevitable,
it will have a major impact on teacher certification, the number of special
teachers needed, funding of special education, and on practices of general
education teachers. The underlying theme behind inclusion is that "special
education must become part of a unified educational system to better accommodate
today's diverse student needs" (Ayres & Meyer, 1992, p. 31).
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The National Education Association (NEA) (1996) has issued a policy statement about inclusion that expressed a commitment to equal educational opportunity and "appropriate inclusion." Appropriate inclusion is characterized by a full continuum of placement options and services within each option; appropriate professional development, as part of normal work activity, of all educators and support staff associated with such programs; appropriate training provided for administrators, parents, and other stakeholders; adequate time, as part of the normal school day, to engage in coordinated and collaborative planning on behalf of all students; class sizes that are "responsive" to student needs; and staff and technical assistance appropriate for specific student and teacher needs.
The National Association of the Deaf (1997) is opposed to "full" inclusion, both groups seeing a need for a continuum of services. Attacks upon inclusion are important to professionals in deaf education (Johnson & Cohen, 1994).
INTERACTIONS OF THE SCHOOL REFORM MOVEMENT AND INCLUSION
Schools that have adopted inclusion are also involved in the broader issues of school reform (Schattman, 1992; Irmsher, 1995). Arceneaux (1994) questions whether genuine adoption of the inclusive education philosophy can occur within a school setting before unless it is part of whole school reform. The combination of school reform and inclusion have created a volatile mixture for policy makers, parents, administrators, and teachers, and problems for the courts. Some of the most popular school reform issues create a background for also understanding the inclusion in the emerging school.
With inclusion, both school reform and the needs of children with disabilities are brought to the foreground, if for no other reason than low achieving students included in district wide tests will lower district averages. This intensifies the controversy about inclusion. Specific aspects of the reform movement have implications for inclusion and students with disabilities:
There are a few studies that
purport to have examined the long-term
effects of inclusion, but many of these are related to mainstreaming.
There are relatively few research-based publications of any kind about
inclusion, at least ones that compare achievement outcomes, although there
are attitudinal and
survey studies. Support and opposition to inclusion often rests on a slim
foundation. Baker, Wang, and Walberg (1995) argue that research shows the
segregated classroom has negative effects for academic performance and
social adjustment, and claim students with disabilities perform better
on average in regular classrooms (see also Hunt, Farron-Davis, Staub, Beckstead,
Curtis, Karasoff, & Sailor, 1992; Staub & Peck (1995)). Kauffman
(1989) argues that students are entitled to "...access to a differentiated
education designed specifically to accommodate their special characteristics,
even if accommodation requires separation" (p. 262).
James McLeskey and Nancy L. Waldron have the answers |
The best known advocates of full inclusion are probably Stainback and Stainback, and the primary research base they use to support their views is improvement in social skills made by students (Stainback & Stainback, 1991), rather than academic gains of students with disabilities or the effects of inclusion on children without disabilities. Stainback and Stainback, along with many other advocates, primarily use ethical and moral justification for inclusion, and some writers link inclusion to parallels in the civil rights movement.
Galis and Tanner (1995) reported on a study of inclusion in elementary schools of Georgia during the 1990's. They found that individualizing instructional methods, adapting the instructional environment, and lowering maximum class size emerged as significant issues. In general, they found that (1) regular education teachers have difficulty with the idea of inclusion, (2) younger, less experienced educators have difficulty coping with the complex demands of change, and (3) legal aspects dealing inclusion need clarification, especially for regular education teachers. Tanner, Linscott, and Galis (1996) report a "perceived lack of information" about inclusion among middle school principals and teachers.
A study frequently referenced to support inclusion is the National Longitudinal Study, which resulted in several reports about different segments of the population of students studied (Wagner, 1991; Newman 1992; Newman & Cameto, 1993; Hebbeler, 1994). This study considered outcomes for older students, who had been mainstreamed, but it did not address inclusion or various methods of inclusion or best practices.
For students with mild disabilities, inclusion results in higher academic achievement scores and gains in socioemotional growth. Students with more severe disabilities demonstrate better social development, a greater frequency of social interactions, fewer health problems, and improved skill development. In summary, there is not sufficient evidence in the literature to prove the benefits of inclusion for all children, nor dispute them. A study by the Virginia Department of Education revealed differences of opinion among different groups but a slight difference in achievement for some students in large classes.
Opponents of inclusion, especially advocates in the fields of learning disabilities, gifted and talented, deafness, visually impaired, and autism, argue for a full continuum of services and believe that "full" inclusion poses problems for such children. The argument is also advanced that inclusion can have negative consequences for nondisabled students. The effects of inclusion or nondisabled students in inclusion classes has been found to be not statistically significant by Staub and Peck, (1995). Clearly, much more research is necessary to answer many questions about inclusion.
CONCLUSIONS
Over the last two or three decades, in what some have called the postmodern era, many persons in various fields of the social sciences have questioned rationalistic, linear explanations of phenomena and adopted multiple perspectives as an alternative. In education this is noticeable in the popularity of constructivism, qualitative research, performance-based assessment, realistic learning environments, and assessments integrated with learning tasks. There is general acceptance that almost any problem is complex, defying theoretical development with no easy solutions. Questioning labels, special education programming, and the organization of schools all seem to coincide with this trend.
Contemporary views of learning regard knowledge as self creation, a personal interpretation, constructed from experience, an active process that must occur in a natural, authentic context. Children with disabilities, segregated in special schools or classrooms, are limited to an unnatural learning context. In order for students to construct meaning about the real world, they must be in the real world, so to speak.
Many people believe that special education and "mainstreaming" are unacceptable remnants of a bygone era. Not only do they believe that students have a right to be in the regular classroom, they are convinced that any presumed social benefits or academic value attached to a special classroom are out of synch with the times. Regardless of conflicting beliefs, the most important factors promoting inclusion is what courts believe.
In Oberti v. Board of Education of the Borough of Clementon School District, the federal judge wrote, "Inclusion is a right, not a special privilege for a select few." This opinion was based on the least restrictive definition of IDEA, and on Section 504 of the Rehabilitation Act, which guarantees access to services provided by any entity that receives federal funding. With comparisons to cases based on racial desegregation, inclusion became a civil rights issue. Using court rulings, IDEA language pertaining to the least restrictive environment, and supported the 1990 Americans with Disabilities Act, which forbids discrimination against those with disabilities, advocates of inclusion have been equipped with weapons to wage their campaign on behalf of children with disabilities.
Inclusion is the outcome of a progression of changes spanning several decades. There is little evidence that special programs have been effective in meeting the needs of children, but special programs have insulated general education from dealing with the needs of children with disabilities. If tracking and special education programs are eliminated or significantly curtailed, as required by inclusion, the burden falls on the general education classroom teacher to meet the needs of large numbers of diverse children.
Tracking has been a common approach to school organization. In elementary school, children are grouped according to reading levels to facilitate instruction. In secondary schools, tracks put high achieving, average, and slow students through different curricula. To some federal courts, this practice is recognized as a form of de facto segregation, because mostly minority students end up on the lower tracks.
The question of sorting students for instruction and different kinds of curricula is a problem for many reasons and a concern to many people. Opponents of tracking, which includes the inclusionists, think that tracking is injurious to children because tracks steer children into substandard educational opportunities. It is clear that inclusion interacts with many political and philosophical issues in education.
The problem confronting American education is how to provide a strong academic curriculum in a democracy which does not also exclude large numbers of apparently less capable students, such as many poor, disadvantaged, and children with disabilities (Podemski, Marsh, Smith, & Price, 1995). Clearly the emphasis in education today is on higher achievement and meeting world standards because of the transition to a global, information economy. A common curriculum would satisfy many critics of education but it would also increase the likelihood that more students will fail and dropout along the way unless new methodologies are employed in schools. Some would argue that high school should not prepare children for work but provide a general education, believing that the best work preparation is a general curriculum. Nonetheless, most states have increased standards for high school graduation and have required more mathematics, science, English, and foreign language. Many states have also implemented minimum performance examinations to check skills of students at intermediate points in the curriculum. Higher graduation standards, more rigorous courses, and competency examinations make it increasingly difficult for academically marginal students and many children with disabilities to achieve a high school diploma. Inclusion increases the difficulties for classroom teachers who must now deal with greater diversity in the classroom than ever before.