Providing the Least Restrictive Environment in Special Education: It's Easy to Say, not Always Easy to Apply

The issue of providing special education services in the least restrictive environment, also known as mainstreaming, is an area of law in which the basic legal principles may be easily stated, much like the elements of torts. But in practice, it can be difficult to apply and raises not only legal concerns, but also philosophical and educational concerns.

The mainstreaming requirement provides that children with disabilities should, to "the maximum extent appropriate," be "educated with children who are not disabled." See 20 U.S.C.A. § 1412(a)(5)(A). While there may be disagreement about whether this mandate has been met in a particular case, Pennsylvania school districts have met this legal requirement overall.

Mainstreaming can be a complex issue over which parents of students with disabilities often disagree. Its application to particular cases tends to be fact-specific and is an issue that courts, hearing officers, parents and school districts have sometimes struggled with. As the U.S. District Court for the Eastern District of Pennsylvania noted in Greenwood v. Wissahickon Sch. Dist. , there is "inherent tension between the [IDEA's] goal of mainstreaming a disabled student and its requirement to provide an individualized educational program meeting the student's special needs."

In addition, the U.S. District Court for the Western District of Pennsylvania, in Leighty v. Laurel Sch. Dist., emphasized that the focus is on providing the student's education in an "appropriate educational environment."

A review of several recent cases in this area reveals that parents of students with special education needs take diverging views, with some demanding more restrictive placements than those offered by the local school district and others saying districts have not done enough to mainstream their children. These cases illustrate the complexity of the issues faced by school districts in attempting to meet this mandate.

One series of cases demonstrates that parents of students sometimes seek a placement that is more restrictive than that suggested by the school district, primarily in the form of a private placement. For example, in the case of Leighty , the parents of a disabled student sought to have the district pay for a private placement recommended by their expert, a notion that was rejected by the court, which found that the district had educated the student with inclusion into regular education and that approving the private placement at district expense would be inconsistent with the mainstreaming requirements.

In the Eastern District case of Daniel S. v. Council Rock Sch. Dist. , the parents of a student with a specific learning disability placed the student at a private school and then sought tuition reimbursement, contending it was an appropriate special education placement for the student. The court rejected the request for reimbursement, finding that the school district had offered the student a special education placement that included inclusion in the regular education setting and in which the student had previously made educational progress. Accordingly, the court found that the more restrictive environment chosen by the parents was not appropriate.

Finally, in the Eastern District case of Sinan L. v. Sch. Dist. of Philadelphia , the parents of a disabled student sought tuition reimbursement for placement at an out-of-state residential placement, when the district had offered a placement at a private day school. In applying the mainstreaming requirement, the court explained that a residential placement is inappropriate when a less structured environment, such as a day school, will meet the student's needs.

A second series of cases outlines the view that some parents hold of the need for more inclusion than provided by a school district. In the case of Lauren P. v. Haverford Sch. Dist. , the Eastern District was faced with a case in which the school district offered an autistic student a part-time placement in regular education and part-time placement in learning support, or a special education placement, while the parents sought full-time placement in a regular education placement with supports. In upholding the school district's offered placement as appropriate, the court noted that the school district had fully considered the possibility suggested by the parents and considered a "continuum of alternative placements" as part of the process in reaching its conclusion, including fully considering the possibility of accommodating the student full-time in the general education environment. The court further explained that in considering these various options, the school district found that the student would not make progress in math and language arts if placed in the regular education classroom, but would in the learning support classroom, and that outweighed the benefits of mainstreaming the student.

In Greenwood v. Wissahickon Sch. Dist., the parents of a student who was diagnosed with severe mental retardation and static non-progression encephalopathy sought to have the student put in regular education classes with supports. The court found that the school district had made significant efforts to provide the student with a meaningful benefit from inclusion in the regular education classroom, but that the student received little, if any, educational benefit from the inclusion. The court upheld the placement provided by the district, finding that any further inclusion would hinder the student's own educational progress.

Thus, in order to comply with the requirements of mainstreaming, school districts should consider all possible placements for a student — including placement in a regular education classroom — make an effort to make mainstreaming work as much as possible and, most importantly, ensure that the placement provided offers the student an opportunity to learn. School districts do not have an obligation to mainstream students when doing so would impede their ability to learn.

Overall, the statistics show that school districts in Pennsylvania are well aware of the mandate to provide special education in the least restrictive environment. Nationally, the trend shows that in 1999 about 6.5 percent of special education students were placed outside of the public school setting and that number was down to just over 4 percent by 2005. Pennsylvania is near the national average, according to the Pennsylvania Department of Education, which found just over 4 percent of special education students statewide were placed outside of the public school in 2007 and 2008. Looking to the amount of time that special education students spend outside of the regular education classroom, nationally, close to 25 percent of special education students spent more than 60 percent of their time in a school outside of the regular education classroom in 1989, while that number was down to just under 17 percent in 2005. In Pennsylvania, that number was lower than the national average at close to 11 percent in 2007 and 2008. It is clear that Pennsylvania school districts are not only aware of their mandate to provide special education in the least restrictive environment, they make a diligent effort to meet that mandate and have had success.

While parents of special education students and school districts may agree to disagree over how to meet the mandate of providing special education in the least restrictive environment or whether that mandate has been meet in a particular case, in this area of the law, not only are Pennsylvania's school districts aware of the requirement, they have clearly made a diligent effort to meet it.

This blog posting originally appeared in the December 29, 2009 edition of The Legal Intelligencer and is posted here with permission.  

Ability grouping: issues and concerns?

Recently, a reader wrote with a question and a situation.   

“I was looking at your website, and I was unable to find the answer to this question.  Is ability grouping allowed under Pennsylvania law?  In other words, a school has four classes for each grade level, and the students are grouped into four ability levels, from high achieving to low.  I've heard conflicting answers would like your insights.”

As readers know, I cannot give specific legal advice through this Blog.  But I can give my thoughts, generally (and welcome to hear yours), about this situation, so here goes. 

I am not aware of any specific legal prohibitions on ability grouping as a general matter; however, certain circumstances might present problems for a school. But first, what we do know is that gifted and special education both support the notion of, at least, narrow ability grouping. 

At the higher end (whether gifted, disabled, or neither), many schools offer Advanced Placement and honors courses, which by their nature, are groupings by ability to achieve in that subject. Many schools also use a “pull-out” style of program to offer enrichment to gifted children, especially at the elementary level (I am not addressing this further, today).

On the opposite side, special education laws have always presented tension between the opposite forces of placement in the least restrictive environment (“LRE”), known as “inclusion” or “mainstreaming” versus grouping by common needs for more intensive instruction.  

This tension can, I believe, carry over where ability grouping and the individual LRE right meet each other. Ability grouping is a broader application of common grouping for intensive, level-appropriate instruction. This does seem to make sense. But, depending on the make-up of the various ability levels, a student or group of students might argue the grouping violates the LRE right. That is, a particular level might have a statistically too high number of special education students thereby rendering the apparent LRE placement illusory.

In such a case, that would essentially be a segregated setting, which brings up a final concern: discrimination. If minority or protected class students make up a disproportionate number of students in a particular track, the school could be open to charges of improper segregation and discrimination.

The lesson is that a school using ability grouping is probably doing so for legitimate pedagogical reasons. But the school must be aware of how the student population is grouped as factors other than just ability can have serious consequences.