Disability and the public schools: The case against "inclusion"

Washington Law Review

Volumn 72, Issue 3, 1997, Pages 775-857

  Dupre, Anne Proffitt ^a  

^a UNIVERSITY OF GEORGIA   (United States)

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EID: 0347108794     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (499)

1. Pub. L. No. 94-142, 89 Stat. 773 (1975) (codified at 20 U.S.C. §§ 1401-1461 (1976)).
2. National Sch. Pub. Relations Ass'n, Educating All the Handicapped 61 (1977) (quoting Careth Ellingson, educator, and referring to Brown v. Board of Educ., 347 U.S. 483, 493 (1954)).
3. When President Ford signed EAHCA into law he stated, "Unfortunately, this bill promises more than the federal government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains." Id. at 6. But see Mark C. Weber, The Transformation of the Education of the Handicapped Act: A Study in the Interpretation of Radical Statutes, 24 U.C. Davis L. Rev. 349, 435-36 n.400 (1990) (claiming that although EAHCA is "radical" statute that called for major shift in resources, it does not threaten balance of economic power as did Wagner Act, nor does it threaten balance of economic and electoral power as did Reconstruction Civil Rights Acts).
4. Pub. L. 101-476, 104 Stat. 1103 (1990) (codified as amended at 20 U.S.C. §§ 1400-1491 (1994)). Many cases discussed herein were decided under EAHCA. Nevertheless, EAHCA "remains the foundation for IDEA," and those cases are still guiding precedent for interpretations of issues in IDEA. Heldman v. Sobol, 962 F.2d 148, 150 n.1 (2d Cir. 1992). In this Article, the statute is referred to as IDEA or the Act Congress recently amended IDEA. See Individuals with Disabilities Education Act Amendments of 1997, Pub. L. 105-17, 111 Stat. 37 (to be codified at 20 U.S.C. § 1400 et seq.). Because the amendments were passed after the completion of this Article, they are not discussed herein.
5. 20 U.S.C. § 1400(b)(3) (finding that "more than half of the children with disabilities in the United States do not receive appropriate educational services . . .").
6. 20 U.S.C. § 1412(1).
7. See, e.g., Richard Whitmire, Special Ed: Is the Price Too High?, USA Today, June 17, 1996, at 6D (revealing soaring cost of special education). The federal government was to have paid 40% of the special education budget, but pays only six percent. Id.
8. 20 U.S.C. § 1400(c).
9. Whitmire, supra note 6 (reporting study of Council for Educational Development). In 1993, per-pupil costs for special education were 2.3 times the cost of regular education. Stephen Chaikind et al., What Do We Know About the Cost of Special Education? A Selected Review, 26 J. Special Educ. 344, 345 (1993).
10. Whitmire, supra note 6 (referring to Dayton, Ohio); see also Sam Dillon, Special Education Absorbs School Resources, N.Y. Times, Apr. 7, 1994, at BS (explaining that in New York City, average annual cost per special education child is $19,208, whereas average annual cost per child is $6394).
11. Drew P. v. Clarke County Sch. Dist., 877 F.2d 927 (11th Cir. 1989). The "autistic and severely mentally retarded" boy sued the school district through his parents and next friends and was awarded "$42,637.00, representing tuition, school fees and uniform fees paid [by his parents] for [his] placement in the residential facilities in Tokyo and Boston." Id. at 928-29. The average per-pupil expenditures on public school students in Georgia in 1992-93 was $4686. See U.S. Dep't of Educ., Digest of Educ. Statistics 1, 174 tbl.164 (1995).
12. The average per-pupil expenditure in the United States in the same time period was $5594. Id. See generally Clevenger v. Oak Ridge Sch. Bd., 744 F.2d 514 (6th Cir. 1984) (determining $88,000 per year program was only program appropriate for child); T.G. v. Board of Educ., 576 F. Supp. 420 (D.N.J. 1983) (requiring school district to pay for psychotherapy services for one child totaling over $25,000); 60 Minutes: Special Education - Moneys Spent on Special Education Students Funds Are Decreased (CBS television broadcast, June 9, 1996) (recounting that severely disabled boy was sent to special private school at cost of $100,000 per year).
13. Sam Allis, The Struggle to Pay for Special Ed, Time, Nov. 4, 1996, at 82 (discussing how annual cost to school district of sending autistic South Dakota boy to private school in Connecticut - including eight trips per year for his family to visit him - reached $125,000 per year; one quarter of 80% increase in school budget accounted for boy's special education needs, causing 55% increase in property taxes).
14. Thomas F. Guernsey & Kathe Klare, Special Education Law 138-39 (1993) (noting that courts are split as to whether obligation exists to provide alternative educational programming during disciplinary suspension). But see Virginia v. Riley, 106 F.3d 559, 561 (4th Cir. 1997). The court stated: [IDEA does not] condition the receipt of IDEA funding on the continued provision of educational services to disabled students who are expelled or suspended long-term due to serious misconduct wholly unrelated to their disabilities, and the United States Department of Education was without authority to condition the Commonwealth of Virginia's receipt of IDEA funding on the continued provision of free education to such students. Id.
15. A study of trends in education law reveals that lawsuits charging discrimination against special education students are on the rise. See generally Robert Hanley, A Test Case for Special Education Rights, N.Y. Times, Feb. 18, 1996, at A18. Moreover, at least one court has held that, in addition to the attorneys fees allowed by the statute, see 20 U.S.C. § 1415(e)(4)(B) (1994), a school district that violates the rights of students with disabilities may be liable for compensatory damages. See W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995); see also Hanley, supra (describing case where court awarded $15,000 in damages against teacher of disabled child who gave child written test although child was entitled to oral test).
16. 20 U.S.C. § 1412(5)(B) (1994). See Dixie S. Huefner, The Mainstreaming Cases: Tensions and Trends for School Administrators, 30 Educ. Admin. Q. 27 (1994) (stating that of all legal issues arising out of IDEA, "none is thornier" than issue of when disabled child must be placed in regular education classroom);
17. Daniel H. Melvin, The Desegregation of Children with Disabilities, 44 DePaul L. Rev. 599, 601 (1995) (noting "intense national debate" about inclusion);
18. cf. Michael A. Rebell & Robert L. Hughes, Special Education Inclusion and the Courts: A Proposal for a New Remedial Approach, 25 J.L. & Educ. 523, 549 (1996) (calling inclusion "the most unsettled and unsettling [legal] issue")
19. (quoting Elena M Gallagos, Beyond Board of Educ. v. Rowley: Educational Benefit for the Handicapped?, 97 Am. J. Educ. 258, 283 (1989));
20. Albert Shanker, Inclusion and Ideology, 24 Exceptional Parent, Sept. 1994, at 39 (stating that "rush towards full inclusion" is likely to have "most profound - and most destructive - effect" on American education).
21. Board of Educ. v. Holland, 786 F. Supp. 874, 878 n.6 (E.D. Cal. 1992), aff'd sub nom. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994).
22. Although some courts continue to use the term "mainstreaming"," this term is not generally favored by educators and has been virtually replaced by the term "inclusion." See, e.g., Mavis v. Sobol, 839 F. Supp. 968, 971 n.7 (N.D.N.Y. 1993) (noting preference in some educational circles for use of term "inclusion" instead of "mainstreaming"); see also Rebell & Hughes, supra note 14, at 525 (noting evolution of full inclusion). For consistency's sake, this Article uses the term "inclusion."
23. Carol A. Kochar & Lynda L. West, Handbook for Successful Inclusion 4 (1996) (pointing out that although inclusion is defined in many ways by many organizations and individuals, it generally refers to "maximum integration of students with disabilities into general classrooms or the increase in numbers and proportions of students who receive special services while attending general education classes") (citations omitted).
24. James McLeskey & Nancy Waldron, Responses to Questions Teachers and Administrators Frequently Ask About Inclusive School Programs, 78 Phi Delta Kappan 150, 152 (1996);
25. see Claudine Sherrill, Least Restrictive Environment and Total Inclusion Philosophies: Critical Analysis, Palaestra, Spring 1994, at 25, 28 (noting that meaning of inclusion has broadened from early usage as specific placement or option to "independent status as a separate philosophy");
26. see also Janice M. Baker & Naomi Zigmond, The Meaning and Practice of Inclusion for Students with Learning Disabilities: Themes from the Five Cases, 29 J. Special Educ. 163 (1995) (noting that focus for students with learning disabilities has "shifted from an emphasis on what and how to teach to an emphasis on where to teach");
27. Betty A. Hallenbeck & James Kauffman, How Does Observational Learning Affect the Behavior of Students with Emotional or Behavior Disorders?, 29 J. Special Educ. 45 (1995) ("Special education reformers suggest that all students with disabilities - including those with emotional or behavioral disorders - should be placed in their neighborhood schools and in regular classes."). Not all advocates for the disabled support the full inclusion movement See, e.g., Huefner, supra note 14, at 48-49 (noting that ARC (formerly Association for Retarded Citizens) has "been outspoken in support of full inclusion," but that Learning Disabilities Association of America and some educators of the deaf do not support full inclusion movement).
28. See, e.g., Huefner, supra note 14, at 49 (citing language modeling and social interaction as primary reasons for inclusion).
29. See, e.g., Daniel D. Sage & Leonard C. Burrello, Policy and Management in Special Education 39 (1986) (asserting that principles established in Brown v. Board of Educ., 347 U.S. 483 (1954), are applicable to "other discriminatory classifications," including classification of disabled); Weber, supra note 2, at 393 (noting "powerful analogy" to race cases).
30. See infra Part II.B.
31. See infra notes 67-73 and accompanying text.
32. See infra Part II.D for an examination of the tests that have been developed by the circuit courts.
33. See infra Part II.D.1.
34. Anne P. Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public Schools, 65 Geo. Wash. L. Rev. 49, 98 (1996) (defining "serious education"); see also infra notes 206-13, 396 and accompanying text
35. See, e.g., Board of Educ. v. Pico, 457 U.S. 853, 876 (1982) (Blackmun, J., concurring in part and concurring in the judgment) ("Indeed, the Constitution presupposes the existence of an informed citizenry prepared to participate in governmental affairs . . . ."); J. Tussman, Government and the Mind 54 (1977) (describing "teaching power" as inherent constitutional authority of state to establish and direct teaching activity and institutions needed to ensure continuity and further legitimate, general, and special purposes).
36. "[I]f free speech is to be meaningful, a citizen must have something worth saying, together with the maturity and the skill needed to say it." Dupre, supra note 25, at 97 (quoting Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 Ohio St. L.J. 663, 666 (1987)); see also Plyler v. Doe, 457 U.S. 202, 221 (1982) (noting "pivotal role of education in sustaining our political and cultural heritage"); Ambach v. Norwick, 441 U.S. 68, 77 (1979) (recognizing role of public schools in "inculcating fundamental values necessary to the maintenance of a democratic political system").
37. Brown v. Board of Educ., 347 U.S. 483, 493 (1954). As Professor Suzanna Sherry has stated, "[A] republican citizen needs an education that will enable her to exercise both the rights and responsibilities of citizenship." Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. Chi. L. Rev. 131, 132 (1995).
38. See Dupre, supra note 25, at 97-98 (writing that without serious education, citizen is left without necessary tools to challenge both government tyranny and tyranny of demagogues); see also Sherry, supra note 28, at 132 ("[E]ducation is necessary to the thoughtful or responsible exercise of citizenship rights."); cf. John Dayton & Carl Glickman, American Constitutional Democracy: Implications for Public School Curriculum Development, 69 Peabody J. Educ. 62, 63 (1994) (pointing out irony that public schools are facing challenges to their very existence at time when cohesive bond of school - "[the] vital public institution necessary to the perpetuation of a free and democratic nation" - is most needed).
39. See Hilary Putnam, A Reconsideration of Deweyan Democracy, 63 S. Cal. L. Rev. 1671, 1697 (1990) ("The extent to which we take the commitment to democracy seriously is measured by the extent to which we take the commitment to education seriously.").
40. Dupre, supra note 25, at 98.
41. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 278 (1988) (Brennen, J., dissenting).
42. See infra notes 242-45 and accompanying text.
43. My focus here is on the political and social claim by some scholars that the civil rights movement failed to improve the status of African Americans in significant measure.
44. See supra notes 179-205 and accompanying text
45. See generally Philip T.K. Daniel & Karen B. Coriell, Traversing the Sisyphean Trails of the Education for All Handicapped Children Act: An Overview, 18 Ohio N.U. L. Rev. 571, 571-74 (1992) (describing history of special education).
46. See generally Richard C. Handel, The Role of the Advocate in Securing the Handicapped Child's Right to an Effective Minimal Education, 36 Ohio St. L.J. 349, 351 (1975) (discussing statutes);
47. Martin A. Kotler, The Individuals with Disabilities Education Act: A Parent's Perspective and Proposal For Change, 27 U. Mich. J.L. Reform 331, 343 n.40 (1994) (citing statutes).
48. Act of May 18, 1965, ch. 584, 1965 N.C. Sess. Laws 641 (amending N.C. Gen. Stat. §§ 115-165 (1963)); see also Karen Sindelar, How and Why the Law Has Failed: An Historical Analysis of Services for the Retarded in North Carolina and a Prescription for Change, 48 Law & Contemp. Probs., Spring 1985, at 125. The courts were no more sympathetic. Examples of court indifference include one early decision that upheld the expulsion of a child who was disruptive "either voluntarily or by reason of imbecility." Watson v. City of Cambridge, 32 N.E. 864, 865 (Mass. 1893). Another court determined that laws requiring compulsory education and setting up programs for "handicapped children" did not mandate the public education of a child who was mentally impaired. Department of Pub. Welfare v. Haas, 154 N.E.2d 265 (Ill. 1958).
49. Carole Murray-Seegert, Nasty Girls, Thugs, and Humans Like Us 17 (1989).
50. Id.
51. Id.
52. Id.
53. Id. at 21.
54. 343 F. Supp. 279 (E.D. Pa. 1972).
55. 348 F. Supp. 866 (D.D.C. 1972).
56. Mark G. Yudof et al., Educational Policy and the Law 718 (1992).
57. Pennsylvania Ass'n for Retarded Children v. Commonwealth, 334 F. Supp. 1257, 1260 (E.D. Pa. 1971).
58. Mills, 348 F. Supp. at 875.
59. Id. at 878.
60. Yudof et al., supra note 46, at 719.
61. 29 U.S.C. § 794 (1994).
62. 20 U.S.C. §§ 1401-1461 (1976).
63. Pub. L. 101-476, 104 Sta.t 1103 (1990) (codified as amended at 20 U.S.C. §§ 1400-1491 (1994)).
64. "No otherwise qualified handicapped individual . . . 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 . . . ." 29 U.S.C. § 794.
65. 20 U.S.C. § 1412(5)(B). Although section 504 does not have statutory language like that of IDEA, section 504 regulations require recipients of federal funds to educate children with disabilities with children without disabilities "to the maximum extent possible." 34 C.F.R. § 104.34 (1996). The IDEA regulations are found at 34 C.F.R. §§ 300.550-.556 (1996).
66. 20 U.S.C. § 1412(1) (emphasis added); see also Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1043 (5th Cir. 1989) ("The cornerstone of [IDEA] is the 'free appropriate public education.'").
67. 20 U.S.C. § 1412(2)(A).
68. 20 U.S.C. § 1401(a)(20). The IEP is defined as a written statement developed annually for each child with a disability. It is developed in a meeting that must include the teacher, a representative of the public agency who is qualified to supervise or provide special education, the child's parents, and - whenever appropriate - the child. 20 U.S.C. § 1401(a)(20). The requirements for the IEP are specific and result in a detailed and lengthy document that must include the following: (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the educational instructional services to be provided to such child and the extent to which such child will be able to participate in regular educational programs, (D) a statement of the needed transition services for students beginning no later than age 16 and annually thereafter (and, when determined appropriate for the individual, beginning at age 14 or younger), including, when appropriate, a statement of the interagency responsibilities or linkages (or both) before the student leaves the school setting, (E) the projected date for initiation and anticipated duration of such services, and (F) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. In the case where a participating agency, other than the educational agency, fails to provide agreed upon services, the educational agency shall reconvene the IEP team to identify alternative strategies to meet the transition objectives. 20 U.S.C. § 1401(a)(20).
69. See Timothy W. v. Rochester Sch. Dist., 875 F.2d 954, 960 (1st Cir. 1989). The child in this case suffered from spastic quadriplegia, cerebral palsy, seizure disorder, and cortical blindness. Id. at 956. The school district proposed to offer no education because it claimed the child could not benefit from one. Id. One physician noted that the boy responded to sounds and recommended physical therapy and stimulation; another physician stated that the child had no educational potential. Id. The court determined that IDEA was intended to ensure that all children with disabilities receive a free appropriate education regardless of the severity of the disability. Id. at 960. The First Circuit remanded the case for the development of an appropriate individual education plan and for a determination of damages. Id. at 973.
70. 20 U.S.C. § 1401(a)(18).
71. 20 U.S.C. § 1401(a)(17). The services that a public school would be required to provide a disabled child include "speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only." 20 U.S.C. § 1401(a)(17). See, e.g., Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 178 (3d Cir. 1988) (stating that school must provide fourteen-year-old, who was suffering from effects of encephalopathy and had mental and physical capacities of toddler, with services of licensed physical therapist).
72. 20 U.S.C. § 1412(2)(B).
73. 34 C.F.R. § 300.343 note (1996).
74. 34 C.F.R. § 300.504(a)(1). Changes in placement also are subject to the IEP requirements. Id.
75. See Cordrey v. Euckert, 917 F.2d 1460, 1470 (6th Cir. 1990) (quoting Rettig v. Kent City Sch. Dist., 539 F. Supp. 768, 778 (N.D. Ohio 1981) (noting potential of providing extended school year if necessary to permit child to benefit from instruction)); see also Battle v. Pennsylvania, 629 F.2d 269, 280 (3d Cir. 1980) (stating that state administrative policy setting a limit of 180 days of instruction per year for all children was incompatible with IDEA requirement of free appropriate education).
76. See McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C. Cir. 1985); Kruelle v. New Castle County Sch. Dist., 642 F.2d 687 (3d Cir. 1981). Schools may not be required to pay for medical treatment that is not considered a "related service," see Field v. Haddonfield Bd. of Educ., 769 F. Supp. 1313, 1329 (D.N.J. 1991) (drug treatment program not related service), but schools are required to pay for transportation to residential placements, see Taylor v. Board of Educ., 649 F. Supp. 1253, 1259 (N.D.N.Y. 1986), and may be required to provide transportation to an after-school caretaker, even if the after-school caretaker is outside the school district, see Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
77. For an examination of the struggle to define the roles of parent and educator under IDEA, see David M. Engel, Essay, Law, Culture, and Children with Disabilities: Educational Rights and the Construction of Difference, 1991 Duke L.J. 166, 169. Professor Engel concludes that IDEA'S "goal of creating a partnership has clashed repeatedly with community-level norms and expectations." Id. at 169. This trend toward procedural rights coincided with the general trend during the same period that IDEA was enacted toward the use of procedural guarantees as a constraint on government agencies.
78. See Richard J. Pierce Jr., The Due Process Counterrevolution of the 1990s?, 96 Colum. L. Rev. 1973, 1974-84 (1997).
79. 20 U.S.C. § 1415(b)(1)(C) (1994). Some states have established procedures parallel to those of IDEA to ensure that its requirements are met. Compare 20 U.S.C. §§ 1400-1415 (1994) with, e.g., 105 Ill. Comp. Stat. 5/14-1.02, 5/14-8.02 (West 1993 & Supp. 1996). This Article addresses only the requirements of the federal statute.
80. 20 U.S.C. § 1415(b)(1)(E).
81. 20 U.S.C. § 1415(b)(2). Parents must receive an opportunity "to examine all relevant records with respect to the identification, evaluation, and educational placement of the child" and "to obtain an independent educational evaluation of the child." 20 U.S.C. § 1415(b)(1)(A). At the hearing, parents have the right to counsel; the right to present evidence; the right to confront, cross-examine, and compel attendance of witnesses; the right to a written or electronic record of the proceedings; and the right to written findings of fact and decisions. 20 U.S.C. § 1415(d).
82. 20 U.S.C. § 1415(c).
83. 20 U.S.C. § 1415(e)(2). The statute provides that the court shall "receive the records of the administrative proceeding, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).
84. 20 U.S.C. § 1415(e)(4)(B); see also David Neal & David Kirp, The Allure of Legalization Reconsidered: The Case of Special Education, in School Days, Rule Days: The Legalization and Regulation of Education 343, 358-59 (David Kirp & Donald Jensen eds., 1986) (examining costs of placing parents and schools in conflict and suggesting use of alternative dispute resolution techniques).
85. Students With Disabilities and Special Education 16 (Data Research, Inc. ed., 1993). "The majority of due process hearings have dealt with parent requests for more restrictive (usually private) placements than those proposed by school personnel." Sage & Burello, supra note 20, at 56; see, e.g., Board of Educ. v. Illinois Bd. of Educ., 41 F.3d 1162, 1165 (7th Cir. 1994) (parents claiming that modeling nondisabled students was less important than child's language skills and objecting to school's determination that child should be placed in integrated environment); G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1st Cir. 1991) (parents arguing for more restrictive placement); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 989 (1st Cir. 1990) (parents demanding that child be placed in residential program, rather than self-contained classroom for learning disabled in public school); Mather v. Hartford Sch. Dist., 928 F. Supp. 437, 439 (D. Vt. 1996) (parents arguing for residential placement for child and challenging IEP that provided that child would receive most of his education in mainstream classes supplemented by individual attention in resource room); Gladys J. v. Pearland Indep. Sch. Dist., 520 F. Supp. 869, 879 (S.D. Tex. 1981) (parent claiming that school district's placement in less restrictive self-contained day program inappropriate, and court ordering residential placement).
86. See Board of Educ. v. Rowley, 458 U.S. 176, 198 (1982). In this case, the parents of a deaf eight-year-old disputed a part of their daughter's IEP. Amy, an excellent lipreader, was placed in a regular kindergarten program, a placement with which the parents agreed, and she was provided with a hearing aid that amplified words spoken into a wireless receiver. Though Amy successfully completed her kindergarten year, her parents insisted that she be provided with a sign-language interpreter in all of her academic classes in the first grade. The school district and an interpreter who had been assigned to Amy for two weeks during the kindergarten year both agreed that Amy did not need the services of an interpreter at that time. The parents demanded and received a due process hearing when their request for an interpreter was denied, and the case eventually was heard by the United States Supreme Court
87. Id at 192 ("The intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.").
88. Id. at 200.
89. Id. at 203.
90. 20 U.S.C. § 1412(5)(B) (1994). The regulations promulgated pursuant to IDEA refer to this provision as requiring the "least restrictive environment" 34 C.F.R. § 300.552 note (1996). Courts and commentators also refer to the "least restrictive environment" See, e.g., County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458, 1468 (9th Cir. 1996) (noting that every effort must be made to place handicapped child in "least restrictive environment").
91. 20 U.S.C. § 1412(5)(B).
92. 20 U.S.C. § 1412(1).
93. 20 U.S.C. § 1412(5)(B).
94. William H. Clune & Mark H. Van Pelt, A Political Method of Evaluating the Education for All Handicapped Children Act of 1975 and the Several Gaps of Gap Analysis, 48 Law & Contemp. Probs., Winter 1985, at 7, 52 ("[T]he most obvious and shocking problem with which the legislation was concerned - the complete exclusion of handicapped children from schools - was the most completely solved.").
95. Sherrill, supra note 18, at 28.
96. Id. (citing U.S. Dep't of Educ., Fourteenth Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act 22 (1992)).
97. 20 U.S.C. § 1401(a)(16)(A) (1994).
98. Murray-Seegert, supra note 39, at 23.
99. See S. Rep. No. 94-168, at 6 (1975), reprinted in 1975 US.C.C.A.N. 1425, 1430; see also Yudof et al., supra note 46, at 719-20; Stephen R. Goldstein et al., Law and Public Education: Cases and Materials 977 (3d ed. 1995) ("As a direct response to these cases," Congress passed several federal statutes, including the EAHCA, which later was renamed IDEA).
100. See Note, Enforcing the Right to an "Appropriate Education": The Education for All Handicapped Children Act of 1975, 93 Harv. L. Rev. 1103, 1120 (1979) (noting that concept of mainstreaming gained legal significance following consent decree in PARC).
101. Pennsylvania Ass'n for Retarded Children v. Commonwealth, 334 F. Supp. 1257, 1260 (E.D. Pa. 1971).
102. See Martha M. McCarthy, Inclusion of Children with Disabilities: Is It Required?, 95 Educ. L. Rep. 823, 824 (1995).
103. See James M. Kauffman & Daniel P. Hallahan, Full Inclusion in Historical Context, in The Illusion of Full Inclusion: A Comprehensive Critique of a Current Special Education Bandwagon 3 (James M. Kauffman & Daniel P. Hallahan eds., 1995).
104. See Melvin, supra note 14, at 601-02 n.10 (referring to Madeleine C. Will, Educating Children With Learning Problems: A Shared Responsibility, 52 Exceptional Children 411 (1986)).
105. Some scholars assert that "two articles that were particularly influential in shaping advocacy for mainstreaming . . . and setting the course toward full inclusion" were written by Lloyd Dunn and Evelyn Deno. Kauffman & Hallahan, Full Inclusion in Historical Context, in The Illusion of Full Inclusion, supra note 92, at 4
106. (citing Lloyd Dunn, Special Education for the Mildly Retarded - Is Much of it Justifiable?, 35 Exceptional Children 5 (1968)
107. and Evelyn Deno, Special Education As Developmental Capital, 37 Exceptional Children 229 (1970));
108. see also Murray-Seegert, supra note 39, at 22 (citing Dunn's article); Note, Enforcing the Right, supra note 89, at 1119 (same).
109. See Dunn, supra note 94, at 8-9. Another argument is that special classes were a way of maintaining racial segregation. Id. at 6-7.
110. See Deno, supra note 94, at 234-36 (describing "cascade of services" needed in special education).
111. See Sherrill, supra note 18, at 31 (citing U.S. Dep't of Educ., Fourteenth Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act 25 (1992)). A resource classroom is defined as a model where the student is outside the regular class for 21% to 60% of the day, but included in the regular class at other times. See id. at 27.
112. See supra note 18 and accompanying text.
113. Ann M. Hocutt et al., Historical and Legal Context of Mainstreaming, in The Regular Education Initiative: Alternative Perspectives on Concepts, Issues, and Models 17 (John Wills Lloyd et al. eds., 1990).
114. James F. Kauffinan & Daniel P. Hallahan, From Mainstreaming to Collaborative Consultation, in The Illusion of Full Inclusion, supra note 92, at 6.
115. Hallenbeck & Kauffman, supra note 18, at 46 (citing S. Stainback & W. Stainback, Educating Children with Severe Maladaptive Behaviors 62 (1980)).
116. Donald L. MacMillan et al., The Social Context of Dunn: Then and Now, 27 J. Special Educ. 466, 477 (1994).
117. 20 U.S.C. § 1412(5)(B) (1994).
118. See McCarthy, supra note 91, at 826.
119. 20 U.S.C. § 1412(1) ("The state [must have] in effect a policy that assures all children with disabilities the right to a free appropriate public education.").
120. 20 U.S.C. § 1412(5)(B).
121. See Oberti v. Board of Educ., 995 F.2d 1204, 1214 (3d Cir. 1993) (noting tension embodied in IDEA); Greer v. Rome City Sch. Dist., 950 F.2d 688, 695 (11th Cir. 1991) (noting "tension within the Act between two goals: mainstreaming and meeting each child's unique needs"); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5th Cir. 1989) (stating that "Congress . . . created a tension between two provisions of the Act"). Professor Martha Minow has examined the tension that exists when attempting to address the needs of persons with disabilities. See generally Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 35-39 (1990) [hereinafter Minow, Making All the Difference] (explaining that educators have problems trying to address differences among students without stigmatizing those who are different);
122. Martha Minow, Learning to Live with the Dilemma of Difference: Bilingual and Special Education, 48 Law & Contemp. Probs., Spring 1985, at 157 (pointing out tension between need for special services and problems that occur with labeling and segregation).
123. See supra note 74 and accompanying text.
124. See, e.g., Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1400 (9th Cir. 1994); Oberti, 995 F.2d at 1207-10; Greer, 950 F.2d at 690-92; Briggs v. Board of Educ., 882 F.2d 688, 689-91 (2d Cir. 1989); Daniel R.R., 874 F.2d at 1039; Roncker v. Walter, 700 F.2d 1058, 1060-61 (6th Cir. 1983).
125. See, e.g., J. Michael Coleman & Ann Minnett, Learning Disabilities and Social Ecological Perspective, 59 Exceptional Children 234, 234 (1992) (noting that justification for mainstreaming has always been based less on possible academic gains and more on potential social benefits); Huefner, supra note 14, at 49 (citing language modeling and social interaction as primary reasons for inclusion); Shanker, supra note 14, at 39 ("[T]hose demanding full inclusion are interested in only one thing - socialization.").
126. See infra Part II.D.2.
127. See, e.g., Howard P. Blackman, Surmounting the Disability of Isolation, 49 Sch. Administrator 28, 29 (1992) (asserting that focus in special education should be on location where support is provided to disabled students because being removed from regular classroom results in stigma and isolation).
128. The Fourth, Sixth and Eighth Circuits have applied a test that focuses on the "feasibility" of transporting special services to the general education classroom. See infra notes 120-33 and accompanying text. The Third, Fifth and Eleventh circuits use a four-factor balancing test to determine if education in the regular classroom with the use of supplemental aids and services can be achieved satisfactorily. See infra notes 134-56 and accompanying text. The Ninth Circuit declined to follow either line of cases, and developed a test that includes some factors from each. See infra notes 157-61 and accompanying text In contrast, the Second Circuit took a totally different course and deferred to the judgment of the educators making the placement decision and the hearing officer that upheld it See infra Part II.D.2.
129. In addition to the division in the circuits regarding the substantive standard for the least restrictive environment, there are other conflicts in the circuit courts regarding the interpretation of IDEA. First, the circuits are split with regard to which party has the burden of proof in the district court. Some circuits have held that the burden rests with the party that is challenging the administrative agency decision. See, e.g., Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir. 1990) (stating that burden rests with complaining party); Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988) (stating that party challenging administrative determination has burden of persuading court that hearing officer was wrong). But the Third Circuit expressly rejected these cases and held that the school district maintains the burden of proof throughout. Oberti, 995 F.2d at 1218-19. Second, the standard for judicial review has presented a knotty problem. Parents may challenge a school district placement decision at two administrative levels: through the due process hearing before an impartial hearing officer and, where provided by the state, through subsequent appeal to the state administrative level. See supra notes 70-73 and accompanying text Parents can then farther appeal to the district courts, but the courts have disagreed concerning the proper standard of judicial review. IDEA requires a district court reviewing a challenge under IDEA to "receive the records of the administrative proceedings, . . . hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence," grant any appropriate relief. 20 U.S.C. § 1415(e)(2) (1994). Thus, "judicial review in IDEA cases differs substantially from judicial review of other agency actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993). Nonetheless, "[t]he fact that § 1415(e) requires that the reviewing court 'receive the records of the [state] administrative proceedings' carries with it the implied requirement that due weight shall be given to these proceedings." Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Not surprisingly, the courts have had great difficulty agreeing on a standard of judicial review, and the standards set forth by the courts of appeal range across a wide spectrum. Some courts describe the district court's review as "virtually de novo." See, e.g., Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). Other courts give "deference to the findings of the original administrative factfinder" and "even greater deference" when the original hearing officer and the state review officers agree. See Combs v. School Bd., 15 F.3d 357, 361 (4th Cir. 1994); see also Doe v. Board of Educ., 9 F.3d 455, 458 (6th Cir. 1993) (modified de novo review); Roland M., 910 F.2d at 990 ("involved oversight"). Third, circuits disagree regarding IDEA's prescription that the district court "shall hear additional evidence at the request of a party." 20 U.S.C. § 1415(e)(2). The First and Ninth Circuits have taken a restrictive approach to the term "additional," interpreting it to mean "supplemental." See Town of Burlington v. Department of Educ., 736 F.2d 773, 790 (1st Cir. 1984). The Sixth Circuit disagreed, stating that "the limitation on what can be joined inherent in the term 'supplement' is not present in the term 'add.'" Metropolitan Gov't v. Cook, 915 F.2d 232, 234 (6th Cir. 1990). With this much conflict in the circuits over so many issues relating to inclusion and placement, there can be little doubt that different jurisdictions are likely to spawn different outcomes for litigants.
130. 20 U.S.C. § 1412(5)(B) (1994).
131. See Note, Enforcing the Right, supra note 89, at 1119 (noting lack of guidelines for determining when education in regular classroom becomes unsatisfactory).
132. 34 C.F.R. §§ 300.550, .552(d) (1996).
133. See supra Part II.C for a discussion of the evolution of mainstreaming to inclusion.
134. See infra Part ILD.1. Some courts are more explicit than others in weighing cost against benefit, and the courts have not always agreed in describing the cost and benefit. See infra notes 137-39, 157-61. For instance, although the court in Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983), did not expressly state it was doing so, the "feasibility" test is a shorthand method for weighing cost against benefit. See also A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 163 (8th Cir. 1987) (noting that Roncker allowed courts to consider cost to local school district and benefit to child).
135. The child, Neill, was classified as Trainable Mentally Retarded, a category of children with an IQ below 50. Roncker, 700 F.2d at 1060.
136. Id. at 1061 (discussing district court determination).
137. Id. (describing procedural history of case). After evaluation, the school district decided to place Neill in a county school for mentally retarded children. His parents refused to accept the placement and sought the first level of administrative hearing provided for by IDEA, the due process hearing. The hearing officer found that the school district had not satisfied its burden of showing that the placement would afford Neill the maximum appropriate contact with nondisabled children. The school district appealed and the second level of administrative hearings was held before the State Board of Education. Id. at 1060-61. For a description of the levels of hearings provided for in IDEA, see supra notes 70-73 and accompanying text The State Board determined that Neill should be placed in the county school, but that he should receive contact with nondisabled students during lunch, recess, and transportation to and from school. Neill's mother filed an action in district court Roncker, 700 F.2d at 1061.
138. Roncker, 700 F.2d at 1064 (Kennedy, J., dissenting).
139. Id. at 1063. The standard had also been called the "portability" standard. See Huefner, supra note 14, at 31. Determining whether services could be provided feasibly may be problematic, "depending upon which definition of the word 'feasible' the panel intends, i.e., (1) capable of being done; (2) capable of being dealt with successfully, suitable; or (3) reasonable." Roncker, 700 F.2d at 1066 (Kennedy, J., dissenting).
140. Roncker, 700 F.2d at 1063.
141. Weber, supra note 2, at 391.
142. Roncker, 700 F.2d at 1063 (emphasis added); see also Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) ("Mainstreaming may not be ignored, even to fulfill substantive educational criteria.").
143. Roncker, 700 F.2d at 1063.
144. Id. (discussing the "possibility that some handicapped children simply must be educated in segregated facilities . . . because 'the handicapped child would not benefit' from mainstreaming"); see also id. at 1065 (Kennedy, J., dissenting) (noting parent's argument for regular school setting unless child could learn "zero" in such environment); cf. DeVries v. Fairfax County Sch. Bd., 882 F.2d 876, 879 (4th Cir. 1989) (stating that inclusion is not appropriate where disabled student 'would simply be monitoring classes"); A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 161, 164 (8th Cir. 1987) (upholding separate class where district court found that only possible benefit was opportunity to observe nondisabled children); Liscio v. Woodland Hills Sch. Dist., 734 F. Supp. 689, 701 (W.D. Pa. 1989) (stating placement inappropriate where student received little or no educational benefit).
145. Roncker, 700 F.2d at 1061 (describing district court's decision).
146. Id. at 1063.
147. The court of appeals cited nothing in the record that would lead to the conclusion that the expert actually had a "basic disagreement with the mainstreaming concept." Id. at 1063. Nor did the court hint at how a future court could tell if such a disagreement was indeed the driving force behind the school's determination. According to the Roncker court then, the assertion that a segregated classroom is academically superior is to be given little or no weight. Any time it is claimed that a segregated classroom is academically superior, that statement may be disregarded as based on an improper motive, and the court can then substitute its own judgment.
148. See Sacramento City Unified Sch. Dist v. Rachel H., 14 F.3d 1398, 1403 (9th Cir. 1994) (explaining disagreement among the circuits).
149. 874 F.2d 1036, 1046 (5th Cir. 1989).
150. Id. at 1039.
151. Id. at 1040.
152. Id. at 1046.
153. Id. at 1048.
154. Id. at 1048-49. After applying its new test, the court determined that the school had integrated Daniel with nondisabled students to the maximum extent appropriate by including him with other students at lunch and recess. Id. at 1050-51.
155. Id. at 1047 n.8.
156. Id. at 1049; see also Mavis v. Sobol, 839 F. Supp. 968, 990 (N.D.N.Y. 1994) (noting that placement in regular classroom is beneficial in terms of social development).
157. Daniel R.R., 874 F.2d at 1049 (emphasis added) (citing Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983)).
158. See Oberti v. Board of Educ., 995 F.2d 1204, 1215 (3d Cir. 1993); Greer v. Rome City Sch. Dist., 950 F.2d 688, 696 (11th Cir. 1991).
159. Melvin, supra note 14, at 665-66.
160. 950 F.2d 688 (11th Cir. 1991).
161. Id. at 698.
162. 995 F.2d 1204 (3d Cir. 1993).
163. Id. at 1207-08.
164. Id.
165. Id. at 1209.
166. Id. at 1223.
167. Id. at 1216 (emphasis added) (quoting Greer v. Rome City Sch. Dist., 950 F.2d 688, 696 (11th Cir. 1991)); see also Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983) (explaining that placement in segregated classroom is inappropriate if services which make that placement superior could feasibly be provided in a non-segregated setting).
168. Oberti, 995 F.2d at 1216.
169. Id. at 1217. The Third Circuit thus would appear to require more aids and services than the Fifth Circuit requires. See Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989) ("States need not provide every conceivable supplementary aid or service" to accommodate the child in the regular classroom.).
170. Greer, 950 F.2d at 697 (emphasis added).
171. Oberti, 995 F.2d at 1216 (emphasis added). The Third Circuit has also noted the "unique benefits the child may obtain from integration" like social and communication skills and improved self-esteem. Id.
172. See Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994) (affirming district court's decision that appropriate placement for child was in regular second grade classroom).
173. Id. The four factors are: (1) educational benefits of placement full time in a regular classroom; (2) nonacademic benefits of such placement; (3) effect on the teacher and children in the regular class; and (4) cost. Id.
174. Board of Educ. v. Holland, 786 F. Supp. 874, 879 (E.D. Cal. 1992) (emphasis added), aff'd sub nom. Sacramento City Unified Sch. Dist v. Rachel H., 14 F.3d 1398 (9th Cir. 1994). The Rachel H. decision is in contrast to an earlier Ninth Circuit opinion where the court deferred to the judgment of the educators seeking to transfer a child to a segregated classroom. In Wilson v. Marana Unified School District, 735 F.2d 1178, 1182-83 (9th Cir. 1984), the court determined that if a student with disabilities is not making satisfactory progress in the current placement, the school may transfer the child to a school where she can receive assistance from a teacher especially qualified regarding that disability.
175. Holland, 786 F. Supp. at 878 (emphasis added). Given the court's use of the term "may," rather than "will," inclusion apparently could be appropriate - according to this court - even in some instances where the disabled child receives little or no academic benefit from placement in the regular education class.
176. Id. at 879.
177. Briggs v. Board of Educ., 882 F.2d 688, 693 (2d Cir. 1989).
178. Id.
179. Id. at 690-91.
180. Briggs v. Board of Educ., 707 F. Supp. 623, 626 (D. Conn. 1988), rev'd, 882 F.2d 688 (2d Cir. 1989).
181. Id. at 626-27.
182. Briggs, 882 F.2d at 693.
183. Id.
184. Id. at 692-93.
185. Id. But see Mavis v. Sobol, 839 F. Supp. 968, 987 (N.D.N.Y. 1994) (applying Daniel R.R. test to determine "compliance with IDEA'S mainstreaming requirement"). The Seventh Circuit showed a similar deference to the educational policy judgments made by local and state officials, at least when the inclusion issue is intertwined with issues of educational methodology. In Lachman v. Illinois Board of Education, 852 F.2d 290 (7th Cir. 1988), the school proposed placing the child in a self-contained classroom for the hearing impaired for all or part of the day where the child would be taught based on the "total communication" approach to educating the hearing impaired. Id. at 291-92. The parents disagreed with the placement and claimed that the child could best be taught in a regular classroom with the assistance of a full-time cued speech instructor. The court determined that the inclusion issue was subsumed by the parties' disagreement over educational methodology - "cued speech" versus "total communication." Id. at 294. Because courts must give "substantial deference" to policy judgments regarding educational methodology made by local and state education officials, the court held that the placement proposed by the school was appropriate. Id. at 297. The court stated that the integration inquiry cannot be evaluated in the abstract. "Rather, that laudable policy must be weighed in tandem with the Act's principal goal of ensuring that the public schools provide handicapped children with a free appropriate education." Id. at 296. But cf. Board of Educ. v. Illinois Bd. of Educ., 938 F.2d 712, 718 (7th Cir. 1991) (determining that parents' hostility to proposed IEP can be considered in determining if IEP will benefit child).
186. Briggs, 882 F.2d at 692; see also Board of Educ. v. Illinois Bd. of Educ., 41 F.3d 1162, 1168 (7th Cir. 1994) ("[T]he mainstreaming requirement was developed in response to school districts which were reluctant to integrate mentally impaired children and their nondisabled peers. It was not developed to promote integration with nondisabled peers at the expense of other IDEA requirements and is applicable only if the IEP meets IDEA minimums.").
187. See supra Part II.D.1.
188. See, e.g., Nancy Webb, Special Education: With New Court Decisions Backing Them, Advocates See Inclusion as a Question of Values, Harv. Educ. Letter, July-Aug. 1994, at 1, 1. Some claim that IDEA has been interpreted by courts as a "mandate for inclusion, 'if educating the child in the regular classroom, with supplementary aids and support services, can be achieved satisfactorily.'" Id.; see also Melvin, supra note 14, at 667 ("IDEA contemplates that . . . most disabled children . . . can now be successfully educated in the regular education classroom.").
189. Oberti v. Board of Educ., 801 F. Supp. 1392, 1404 (D.N.J. 1992), aff'd, 995 F.2d 1204 (3d Cir. 1993); see also Rebell & Hughes, supra note 14, at 560-61 (noting "marked shift in the outcome of federal litigation" toward upholding parental requests to place children in general education program, and observing that judges "have become more knowledgeable about, and more sympathetic to, inclusion").
190. Inclusion Can Mean Exclusion to Deaf Students, 2 Inclusive Educ. Programs, Dec. 1995, at 1, 1; see also McCarthy, supra note 91, at 826 (noting "judicial shift toward inclusion"). As a result of recent court opinions, some school districts in California feel the proper course of action is full inclusion: "place all handicapped children in regular education classes, regardless of their mental, physical or emotional disabilities."
191. See Theresa Bryant, Drowning in the Mainstream: Integration of Children With Disabilities After Oberti v. Clementon School District, 22 Ohio N.U. L. Rev. 83, 116 (1995)
192. (citing Sarah Lubman, More Schools Embrace "Full Inclusion" of the Disabled, Wall St. J., Apr. 13, 1994, at B1).
193. See James M. Kauffman & Patricia L. Pullen, Eight Myths About Special Education, Focus on Exceptional Children, Jan. 1996, at 1, 6.
194. See Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1049 (5th Cir. 1989).
195. See Board of Educ. v. Holland, 786 F. Supp. 874, 878-79 (E.D. Cal. 1992), aff'd sub nom. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994); cf. Kauffman & Pullen, supra note 176, at 6 (writing that placing all children in general education classroom has negative consequences for some students where neither disabled student nor their classmates can be well served).
196. 2A Norman J. Singer, Sutherland Statutory Construction § 46.05, at 103 (5th ed. 1992).
197. Id.
198. Id.
199. 20 U.S.C. § 1412(1) (1994).
200. 20 U.S.C. § 1401(a)(16) (1994).
201. 20 U.S.C. § 1400(b)(2) (1994) (emphasis added).
202. 20 U.S.C. § 1401(a)(16)(A) (emphasis added).
203. Board of Educ. v. Rowley, 458 U.S. 176, 181 n.4 (1982) (emphasis added). Of course, those who advocate full inclusion ignore this statement by the Court See, e.g., Melvin, supra note 14, at 667 ("IDEA contemplates that . . . most disabled children . . . can now be successfully educated in the regular education classroom.") (emphasis added). In addition, the Court's decision in Florence County School District Four v. Carter, 510 U.S. 7 (1993), in which the Court stated that parents were not barred from reimbursement for the cost of private school placement in a resident school that specialized in educating students with disabilities, "runs counter to the inclusionary movement under the IDEA that is currently being embraced by the courts and the Clinton Administration." Perry A. Zirkel, A Somewhat Ironic Decision, 75 Phi Delta Kappan 497, 498 (1994). To the extent that the Court has provided a "financial incentive or reward for parents to put their child in a segregated setting - here to the point of choosing a residential placement - it conflicts with the emphasis on educating students with disabilities as much as possible in regular classrooms." Id.
204. 20 U.S.C. § 1401(a)(16)(A). Kauffman and Hallahan comment: IDEA prescribes, first, the determination of appropriate education and related services and, only subsequently, that the least restrictive environment for delivery of those services be determined - in all instances, on a case-by-case basis. Contrary to IDEA, advocates of full inclusion call for a uniform placement decision first, followed by consideration of what might constitute an appropriate education and related services that could be delivered in that placement. Kauffman & Hallahan, Full Inclusion in Historical Context, in The Illusion of Full Inclusion, supra note 92, at 3.
205. 20 U.S.C. § 1401(a)(20)(B).
206. See Daniel R.R. v. State Bd. of Educ, 874 F.2d 1036, 1049 (5th Cir. 1989).
207. See Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).
208. See Greer v. Rome City Sch. Dist., 950 F.2d 688, 692 (11th Cir. 1991). The IDEA regulations regarding "educational placement" also emphasize that the purpose of the statute is "to ensure that each child with a disability receives an education which is appropriate to his or her individual needs." 34 C.F.R. § 300.552 note (1996) (emphasis added). To this end, the school must provide for "alternative placements." 300 C.F.R. § 300.551(a) (1996) ("Each public agency shall ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services."). In short, the "overriding rule . . . is that placement decisions must be made on an individual basis." 300 C.F.R. § 300.552 note.
209. A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 163 (8th Cir. 1987) (emphasis in original) (quoting 20 U.S.C. § 1412(5) (1982)).
210. 20 U.S.C. § 1412(5)(B) (1994).
211. 20 U.S.C. § 1412(5)(B); see also A.W., 813 F.2d at 163.
212. 300 C.F.R. § 300.551(b)(1).
213. Board of Educ. v. Illinois Bd of Educ., 41 F.3d 1162, 1168 (7th Cir. 1994); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 444-45 (1985) (stating that IDEA "requires an 'appropriate' education, not one that is equal in all respects to the education of nonretarded children; clearly, admission to a class that exceeded the abilities of a retarded child would not be appropriate").
214. See generally Bank One Chicago v. Midwest Bank and Trust Co., 116 S. Ct. 637, 645-46 (1996) (Scalia, J., concurring) ("Our opinions using legislative history are often curiously casual . . . . Perhaps that is because legislative history is in any event a make-weight; the Court really makes up its mind on the basis of other factors.").
215. S. Conf. Rep. No. 94-455, at 29 (1975), reprinted in 1975 U.S.C.C.A.N. 1480, 1482.
216. S. Rep. No. 94-168, at 6 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1430 (quoting Brown v. Board of Educ., 347 U.S. 483, 493 (1954)).
217. 348 F. Supp. 866 (D.D.C. 1972). For a description of Mills and its influence on the passage of IDEA, see supra notes 45-50 and accompanying text.
218. S. Rep. No. 94-168, at 13-14 (quoting Mills, 348 F. Supp. at 872).
219. Id. at 18.
220. Plyler v. Doe, 457 U.S. 202, 223 (1982) (discussing denial of education to illegal alien children).
221. See Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, 1049 (5th Cir. 1989).
222. See Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).
223. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 278 (1988) (Brennan, J., dissenting); see also Plyler, 457 U.S. at 221 (pointing out "pivotal role of education in sustaining our political and cultural heritage"); Ambach v. Norwick, 441 U.S. 68, 77 (1979) (recognizing role of public schools in "inculcating fundamental values necessary to the maintenance of a democratic political system").
224. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 681 (1986) (quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968)); see also id. at 683 (noting that inculcation of values necessary to maintenance of democratic political system is "work of the schools") (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969)); Board of Educ. v. Pico, 457 U.S. 853, 864 (1982) (emphasizing importance of public schools in preparing individuals for citizenship); Plyler, 457 U.S. at 222 n.20 (noting that "public schools are an important socializing institution"); Ambach, 441 U.S. at 76-79 (discussing importance of public schools in preparing individuals for participation as citizens); Murray-Seegert, supra note 39, at 36 (explaining that society depends on schools to transmit formal culture, such as history, politics, and literature, and less formal elements, such as values and social behaviors);
225. Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1, 14 (1992) [hereinafter Brown, De Jure Segregation] (stating that schools perform "important academic role" of disseminating information, teaching basic academic skills, providing vocational skills and assisting in cognitive development of children).
226. For a discussion of the Supreme Court's recognition of the function of values inculcation, see Kevin Brown, Termination of Public School Desegregation. Determination of Unitary Status Based on the Elimination of Invidious Value Inculcation, 58 Geo. Wash. L. Rev. 1105, 1117-20 (1990).
227. Robert Maynard Hutchins, A Conversation on Education 1 (1963) (An "ideal education is not an ad hoc education . . . . [I]t is an education calculated to develop the mind.").
228. Dupre, supra note 25, at 97; see also Hilary Putnam, A Reconsideration of Deweyan Democracy, 63 S. Cal. L. Rev. 1671, 1697 (1990) ("The extent to which we take the commitment to democracy seriously is measured by the extent we take the commitment to education seriously.").
229. See Dupre, supra note 25, at 98. "'[I]f free speech is to be meaningful, a citizen must have something worth saying, together with the maturity and the skill needed to say it.'" Id. at 97 (quoting Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 Ohio St. L.J. 663, 685-86 (1987) (citation omitted)); see also Sherry, supra note 28, at 132 (discussing claim that "education is necessary to the thoughtful or responsible exercise of citizenship rights").
230. Richard Weissbourd, The Feel-Good Trap, New Republic, Aug. 19 & 26, 1996, at 12.
231. Cf. Brown, De Jure Segregation, supra note 207, at 13 (stating that two most important functions of public schools are value inculcation and academic training).
232. See Dayton & Glickman, supra note 29, at 63.
233. See supra Part II.D.1.
234. 458 U.S. 176 (1982).
235. See McCarthy, supra note 91, at 826-27.
236. Rowley, 458 U.S. at 198.
237. Id. at 201.
238. Id. at 207.
239. Id. at 176-78.
240. See Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 178 (3d Cir. 1988) ("However desirable the goal of maximizing each child's potential may be in terms of individuals . . . achieving such a goal would be beyond the fiscal capacity of state and local governments.").
241. See 20 U.S.C. § 1401(a)(20) (1994).
242. 20 U.S.C. § 1412(1) (1994).
243. 20 U.S.C. § 1412(5)(B).
244. Although courts addressing the inclusion issue attempt to distinguish the Rowley inquiry from inclusion, the essence of Rowley seems to creep back into the opinions. For example, in Roncker v. Walter, 700 F.2d 1058, 1062 (6th Cir. 1983), the court stated that whether a disabled child's education is "appropriate" is different from the inclusion issue. However, the court later explained that the factor that makes a general classroom "feasible" is whether the disabled child would "benefit" from mainstreaming. Id. at 1063.
245. Board of Educ. v. Rowley, 458 U.S. 176, 184 (1982).
246. See, e.g., Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1045 (5th Cir. 1989) (noting that Rowley test is limited and does not advance court's inquiry regarding inclusion); Roncker, 700 F.2d at 1062 (noting that "case differs from Rowley in two significant ways").
247. See, e.g., Roncker, 700 F.2d at 1063 ("Some handicapped children simply must be educated in segregated facilities . . . because the handicapped child would not benefit from mainstreaming . . . .").
248. See, e.g., Oberti v. Board of Educ. 995 F.2d 1204, 1216 (3d Cir. 1993) (describing importance of "unique benefits" obtained from inclusion like "the development of social and communication skills from interaction with nondisabled peers"); Greer v. Rome City Sch. Dist., 950 F.2d 688, 697 (11th Cir. 1991) (claiming that language and role modeling from association with nondisabled peers are essential benefits of inclusion); Daniel R.R., 874 F.2d at 1048-49 (stating that "the language and behavior models available from nonhandicapped children may be essential or helpful to the handicapped child's development"); Board of Educ. v. Holland, 786 F. Supp. 874, 882 (E.D. Cal. 1992) (noting benefits of social and communication skills and increased self-esteem), aff'd sub nom. Sacramento City Unified Sch. Dist v. Rachel H., 14 F.3d 1398 (9th Cir. 1994); cf. Roncker, 700 F.2d at 1065 (Kennedy, J., dissenting) (noting argument that disabled boy must be provided program within regular school environment "even if the only benefit from such placement is to avoid the stigma of attending special school").
249. Rowley, 458 U.S. at 201.
250. Roncker, 700 F.2d at 1063.
251. Daniel R.R., 874 F.2d at 1048-50.
252. Rachel H., 14 F.3d at 1404.
253. Rowley, 458 U.S. at 200. Some courts have interpreted free appropriate education after Rowley to mean that a disabled child must obtain more than mere de minimis educational benefit. See, e.g., Doe v. Alabama Dep't of Educ., 915 F.2d 651, 665 (11th Cir. 1990) (noting that program offered to disabled student provided more than de minimis educational benefits); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988) (requiring meaningful benefit). Yet these same courts have set standards for inclusion that would allow a child to be placed in a general education classroom even if, the child would achieve more academically under a special program. See supra Part II.D.1.
254. Rowley, 458 U.S. at 184, 209-10.
255. Polk, 853 F.2d. at 178-79.
256. See Wilson v. Marana Unified Sch. Dist. No. 6, 735 F.2d 1178, 1182 (9th Cir. 1984) (deciding that although IDEA does not require states to provide disabled children with best education possible, this does not mean that states do not have power to provide disabled children with education which they consider more appropriate than that proposed by parents). But see Johnson v. Lancaster-Lebanon Intermediate Unit 13, 757 F. Supp. 606, 619 (E.D. Pa. 1991) ("[U]nder Rowley mainstreaming is one indication of whether a handicapped child is receiving adequate benefits from his or her education.").
257. Rowley, 458 U.S. at 208 (citing San Antonio Indep. Sch. Dist v. Rodriguez, 411 U.S. 1, 42 (1973)).
258. See id. at 205 n.23 (noting Congress's concern for self-sufficiency).
259. Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1049 (5th Cir. 1989).
260. See infra Part V.
261. See, e.g., Kotler, supra note 37, at 358 n.102 ("Just as a sick child is given medical attention and then sent back to school to join his or her classmates, whenever possible the disabled child should receive highly intensive intervention and then join (or rejoin) the group.").
262. See Hocutt et al., supra note 99, at 23 (noting issue of stigma associated with students separated from their peers); Kauffman & Pullen, supra note 176, at 7 (noting belief that all special classes represent unethical treatment because separation from mainstream is always demeaning, whereas being with majority is always self-enhancing); Kotler, supra note 37, at 366 (describing goal of IDEA as integration to promote dignity of child).
263. See Board of Educ. v. Holland, 786 F. Supp. 874, 879 (ED. Cal. 1992) (stating that "child may be better able to learn academic subjects because of improved self-esteem and increased motivation due to placement in regular education"), aff'd sub nom. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994). Although the Holland court accepted this proposition explicitly, it is also implied in other opinions. See, e.g., Roncker v. Walter, 700 F.2d 1058, 1065 (6th Cir. 1983) (Kennedy, J., dissenting) (noting argument that special education program must be provided within regular school environment "even if the only benefit . . . is to avoid the stigma of attending a special school").
264. See Holland, 786 F. Supp. at 879.
265. See, e.g., Greer v. Rome City Sch. Dist., 950 F.2d 688, 692 (11th Cir. 1991) (noting concern of psychologist hired by parents that disabled child will not have peer models to imitate in self-contained special education class); id. at 697 (stating that even if disabled child makes academic progress more quickly in self-contained special education class, such progress might not justify placement in that environment "if the child would receive considerable nonacademic benefit, such as language and role modeling, from association with his or her nonhandicapped peers"); see also Kauffman & Pullen, supra note 176, at 8 (pointing out that modeling is "common argument" of inclusion advocates).
266. See Thomas Toch et al., Schools That Work, U.S. News & World Rep., May 27, 1991, at 58; cf. Huefner, supra note 14, at 49 (noting that Learning Disabilities Association of America and some educators of the deaf do not support full inclusion).
267. See Seth Coleman, Paralympic Games, Atlanta Const., Aug. 25, 1996, at 13E.
268. A Team USA member described the bronze medal game crowd as "the loudest crowd I've ever played in front of - even louder than in Barcelona. They made the difference tonight . . . . They reacted to everything we did, and the whole team fed off that." Id.; see also Richard Hoffer, Ready, Willing and Able; They Don't Want Pity or Teary Tributes, Sports Ill., Aug. 14, 1995, at 67 ("Disabled athletes hope that what they do will be revealed as sport: the kind of rigorous and cut-throat activity that fans pay to watch, and kids want to try."); id. at 69 (describing ESPN program Break Away, which features sports for disabled, and magazines like Sports 'n Spokes and Palaestra that "treat disabled athletes as authentic sports figures").
269. See Kauffman & Pullen, supra note 176, at 11 ("The real issues are the meanings we attach to disabilities, not the fact that we label them."); cf. Brown, De Jure Segregation, supra note 207, at 14 ("Establishing invidious intent is tantamount to proving that the meaning attached to the separation of blacks and whites in schools was a belief in the inferiority of African-Americans.").
270. See Brown, De Jure Segregation, supra note 207, at 11 (stating that not all racial separation in schools should be attributed to "invidious value" of racial inferiority).
271. Id. at 14 n.45; cf. Minow, Making All the Difference, supra note 107, at 108-10, 137-39, 144-45 (claiming that rights analysis as applied to disabled contains contradictions when one strand emphasizes "sameness" between disabled and nondisabled and one strand emphasizes "difference" - that certain entitlements are required because of special needs of disabled).
272. See supra Part II.A.
273. United States v. Fordice, 505 U.S. 717, 731 (1992). In Fordice, the Court addressed whether the State of Mississippi had taken the requisite affirmative steps to dismantle its prior de jure segregated system in light of its policies regarding historically black and historically white institutions of higher learning. The Court stated that if a State perpetuates policies that continue to have a segregative effect and if "such policies are without sound educational justification and can be practically eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system." Id. (emphasis added).
274. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 526 (1969) (Harlan, J., dissenting). The Court determined that absent "substantial disruption" or "material interference" with the education process, the school cannot restrain student expression. Id. at 514. Justice Harlan would have allowed school officials "the widest authority in maintaining discipline and good order in their institutions." Id. at 526 (Harlan, J., dissenting). "[H]e assumed that the teacher - who is trained and experienced in the pedagogical needs of students - would act in the best or 'legitimate' interests of the students unless the student could show otherwise." Dupre, supra note 25, at 102; see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (stating that school principal has power to control student speech in school-sponsored newspaper if restraint is "reasonably related to legitimate pedagogical concerns"). For an argument that a new definition of school power lies within Justice Harlan's dissent in Tinker, see Dupre, supra note 25, at 102-03.
275. Although de jure segregation by race clearly was designed to perpetuate the assumption of inferiority, courts determined that the meaning behind de facto segregation - separation that occurs in fact, but is not pursuant to statute - could be ascertained only by focusing on the intent of the school officials. See Brown, De Jure Segregation, supra note 207, at 13.
276. Baker & Zigmond, supra note 18, at 178.
277. Id.; see also James M. Kauffman, How We Might Achieve the Radical Reform of Special Education, 60 Exceptional Children 6, 8 (1993) (citing recent empirical studies that indicate that we do not "currently have effective and reliable strategies for improving and sustaining outcomes for all students in regular classrooms").
278. See infra Part V.A-B.
279. Cf. Minow, Making All the Difference, supra note 107, at 37-39 (stating that better educational opportunity may be available for some students in specialized setting rather than in general education classroom).
280. See Kauffman & Pullen, supra note 176, at 6 (stating that disabled student must be placed in environment where student can meet objective of IEP "without endangering self or others, and this environment almost certainly will not be the general education classroom for all students").
281. Marilyn V. Yarbrough, Still Separate and Still Unequal, 36 Wm. & Mary L. Rev. 685, 689 n.24 (1995)
282. (citing Paul Gewirtz, Choice in the Transition: School Desegregation and the Corrective Ideal, 86 Colum. L. Rev. 728, 746 (1986)).
283. See infra Part V.A-B.
284. See James M. Kauffman, The Regular Education Initiative as Reagan-Bush Education Policy: A Trickle-Down Theory of Education of the Hard-To-Teach, 23 J. Special Educ. 256, 262 (1989) ("[S]eparateness may be required for equality of opportunity when separation is based on criteria directly related to teaching and learning . . . .").
285. Cf. Kauffman, supra note 257, at 8 (pointing out that "studies of the social status of children with disabilities do not show that the stigma and isolation they feel is necessarily a result of their being taught outside the regular classroom").
286. See Daniel P. Hallahan & James M. Kauffman, Toward a Culture of Disability in the Aftermath of Deno and Dunn, 27 J. Special Educ. 496, 506 (1994) ("[R]adical inclusionists" presume that "perceptions are so colored by where instruction takes place that they induce an inability to recognize a person's worth and individuality as separate from where they are educated."); see also Oberti v. Board of Educ., 995 F.2d 1204, 1217 n.24 (3d Cir. 1993) (noting "reciprocal benefits of inclusion to the nondisabled students in the class" when they learn to work and communicate with disabled students). Of course, inappropriately placing a child in a regular classroom may only serve to reinforce negative perceptions when the child cannot conform to the social norms there because of, for example, severe behavior problems.
287. See generally Susan Stainback & William Stainback, Integration of Students with Severe Handicaps into Regular Schools 8-10 (1985).
288. Hallahan & Kauffman, supra note 265, at 506; see also James M. Kauffman & Daniel P. Hallahan, Toward a Comprehensive Delivery System for Special Education, in The Illusion of Full Inclusion, supra note 92, at 157, 166-67 (noting need to balance focus on changing disabled person so as to be more normal with focus on changing society to accept people who have disabilities).
289. See, e.g., Charles J. Sykes, Dumbing Down Our Kids 48-49 (1995) (noting that in 1990s many educators believe that self-esteem has "almost limitless application," including "inoculat[ing] us against the lures of crime, violence, substance abuse, teen pregnancy, child abuse, chronic welfare dependency and educational failure").
290. Weissbourd, supra note 211, at 12. "[M]any Americans place a higher priority on life adjustment and the enhancement of self-esteem than on academic learning." Harold W. Stevenson & James W. Stigler, The Learning Gap 111 (1992); see also Sykes, supra note 268, at 49 (noting how inflating self-image is part of therapeutic mindset that underlies hostility to intellectualism of traditional education).
291. See, e.g., Board of Educ. v. Holland, 786 F. Supp. 874, 879 (E.D. Cal. 1992) (noting that self-esteem from being placed in regular classroom is likely to increase academic achievement), aff'd sub nom. Sacramento City Unified Sch. Dist v. Rachel H., 14 F.3d 1398 (9th Cir. 1994); National Sch. Pub. Relations Ass'n, supra note 2, at 88 (quoting Educational Facilities Laboratory Report stating that pride is most important scholastic achievement for retarded students).
292. Weissbourd, supra note 211, at 12.
293. Sykes, supra note 268, at 49.
294. Id. (pointing out that American students rank first when asked how they feel about their math abilities, but actually rank last in international comparisons of math abilities).
295. Thomas G. Moeller, Self-Esteem: How Important Is It to Improving Academic Performance?, Va. J. Educ., Nov. 1993, at 7, 11;
296. see also Martin V. Covington, Self-Esteem and Failure in School: Analysis and Policy Implications in The Social Importance of Self-Esteem 72, 79 (Andrew M. Mecca et al. eds., 1989) (describing and citing studies that show generally low magnitude of association between self-esteem and achievement, with one study showing that 97% of variation in academic performance can be explained other than by self-concept); Sykes, supra note 268, at 53-54 (noting that although there is correlation between students with high academic achievement and high self-esteem, there is no evidence that one causes other); Weissbourd, supra note 211, at 12 (pointing out that host of studies show that "the very premise that greater self-esteem will boost academic achievement is simply wrong" and that "[s]elf-esteem has little or no impact on academic achievement, or on drug use violence or on any other serious problems"). Moreover, researchers that have tried to demonstrate that changes in self-concept lead to improved performance have reached contradictory results and the effects of the manipulation are short-lived. See Covington, supra at 79-80. In addition to the lack of evidence that high self-esteem causes high academic performance, researchers have similarly concluded that "it will be very difficult indeed to identify a causal link between self-esteem and teenage pregnancy."
297. Susan B. Crockenberg & Barbara A. Soby, Self-Esteem and Teenage Pregnancy, in The Social Importance of Self-Esteem, supra, at 125, 135. Although some research links low self-esteem to adolescent pregnancy, "these results do not necessarily demonstrate that low self-esteem increases the risk of pregnancy during adolescence." Id. at 145-46. In fact, researchers reviewing studies that examined the association between self-esteem and teenage pregnancy determined that, although low self-esteem "does contribute to the risk of an adolescent pregnancy . . . the association between low self-esteem and pregnancy is not strong." Id. at 149. These researchers "would not expect raising self-esteem to have a major impact on adolescent sexual behavior," although some data, "though imperfect," has led them to be hopeful that raising self-esteem might result in increased contraceptive use. Id. at 150. Factors other than self-esteem that affect the teen pregnancy rate are race or ethnicity, social class, age, availability of contraceptives, and the historical period during which the adolescent reached childbearing age. Id. at 132.
298. Thomas J. Scheff et al., Crime, Violence and Self-Esteem: Review and Proposals, in The Social Importance of Self-Esteem, supra note 274, at 165, 166.
299. See Roy F. Baumeister et al., Relation of Threatened Egotism to Violence and Aggression: The Dark Side of High Self-Esteem, 103 Psychological Rev. 5, 15-25 (1996) (examining patterns of self-esteem in individuals who have committed murder and assault, rape, or domestic violence, or who have been involved in political terror, oppression, or genocide). But compare Scheff et al., supra note 275, at 170 (citing one study that proposed that delinquent behavior serves to enhance self-esteem for individuals who have experienced failure and lowered self-esteem) with id. at 177 (stating that "the vast body of quantitative studies does not establish level of self-esteem as a cause of crime and violence").
300. See Weissbourd, supra note 211, at 12. "Violent youths seem sincerely to believe that they are better than other people, but they frequently find themselves in circumstances that threaten or challenge these beliefs, and in those circumstances they tend to attack other people." Baumeister et al., supra note 276, at 22. "It also appears that they sometimes manipulate or seek out such challenges to their esteem, in order to enhance their esteem by prevailing in a violent contest" Id. Studies addressing the relationship between self-esteem and welfare dependency have determined that "although cross-sectional studies might lean toward positing a relationship between low self-esteem and [welfare] dependency, the longitudinal data generally negate the observed finding." Leonard Schneiderman et al., Self-Esteem and Chronic Welfare Dependency, in The Social Importance of Self-Esteem, supra note 274, at 200, 233.
301. See Sykes, supra note 268, at 57.
302. "Children who learn to lose without being devastated and use failure experiences to grow will achieve in the classroom and in society. Learning to compete effectively is central to achievement in our schools." Sylvia B. Rimm, Underachievement Syndrome: Causes and Cures 4 (1986).
303. Board of Educ. v. Rowley, 458 U.S. 176, 201 n.23 (1982).
304. Of course the standards will vary depending on the disability involved.
305. See Rimm, supra note 279, at 4 ("It is not possible to be productive in our society or in our schools until one learns to deal with competition, and dealing with competition means coping with losing in a productive way.").
306. See Kauffman & Pullen, supra note 176, at 7; see also Joanne Greenberg & Glenn Doolittle, Can Schools Speak the Language of the Deaf?, N.Y. Times Mag., Dec. 11, 1977, at 50 (reporting isolation in class when child is "different" and others are seen as "normal" more damaging than stigma of separation);
307. Joseph R. Jenkins & Amy Heinen, Students' Preferences for Service Delivery: Pull-out. In-class or Integrated Models, 55 Exceptional Children 516, 519-20 (1989) (noting that interviews with children suggest that many feel more stigmatized when they are given special help in general education classrooms than when they are pulled out for special help in separate classrooms). For instance, a child who is performing four levels below the other students in the class as a result of her disability will at some point realize that she is not doing the same things nor is she able to do the same things that the other children are doing. Children often care very deeply about whether they are conforming to what others are doing. They may become angry and frustrated, or they may just withdraw quietly from any real effort to keep up with the others. Those of us who have taken a class where others have abilities far superior to ours may have experienced a mild version of this.
308. See Kauffman & Pullen, supra note 176, at 7-8 (explaining how disabled child lost motivation in general classroom and regained it in special class). A school attorney who handled the Greer case for the school district before the Eleventh Circuit, see Greer v. Rome City Sch. Dist., 950 F.2d 688, 695 (11th Cir. 1991), visited the general education classroom where Christy Greer, now in middle school, is presently included. Interview with Sam Harben, attorney, Harben & Hartley, in Athens, Ga. (Feb. 26, 1997) (on file with author). According to Mr. Harben, Christy has withdrawn from the rest of the class, sits off by herself, and has little, if any, contact with other students. When Mr. Harben visited the special class in which Christy would have been placed, he stated that the students were happy and excited as they worked together to prepare for Parents' Day. Id.
309. Cf. Brown, De Jure Segregation, supra note 207, at 67 (stating that while "segregation in the past stood as a symbol of the inferiority of African-Americans, the remedies for de jure segregation . . . merely replicate the disease.").
310. See Kauffman & Pullen, supra note 176, at 7.
311. Id. (citation omitted); see also Eric Minton, What a Sport! Wheelchair Sports Are Becoming More Popular, 10 Indep. Living Provider 52 (1995) (quoting wheelchair basketball player describing camaraderie from wheelchair athletics and importance of "being with other people in my situation").
312. Cf. Martha Minow, Learning to Live with the Dilemma of Difference: Bilingual and Special Education, in Children With Special Needs 378 (Katharine T. Bartlett & Judith Welch Wegner eds., 1987) (describing "difference dilemma" as either labeling student and focusing on disability - thus risking stigma - or ignoring disability and risking stigma because majority practices are shaped without regard for difference).
313. Kauffman & Pullen, supra note 176, at 8.
314. See, e.g., Oberti v. Board of Educ., 995 F.2d 1204, 1216 (3d Cir. 1993) ("The court must pay special attention to those unique benefits the child may obtain from integration in a regular classroom which cannot be achieved in a segregated environment, i.e., the development of social and communication skills from interaction with nondisabled peers."); Greer v. Rome City Sch. Dist., 950 F.2d 688, 692 (11th Cir. 1991) (noting concern of psychologist hired by parents that disabled child will not have peer models to imitate in self-contained special education class); id. at 697 (stating that even determination that disabled child will make academic progress more quickly in self-contained special education class might not justify placement in that environment "if the child would receive considerable nonacademic benefit, such as language and role modeling from association with his or her nonhandicapped peers").
315. Hallenbeck & Kauffman, supra note 18, at 46-47. "[Children need] instruction in what to pay attention to, how to remember and rehearse modeled behavior, how to judge when and where to produce imitative responses, as well as external and explicit motivation for appropriate imitation. These instructional needs go well beyond the social curriculum offered in the typical classroom." Id. at 61. But cf. Paul Sale & Doris M. Carey, The Sociometric Status of Students with Disabilities in a Full-Inclusion School, 62 Exceptional Children 6, 7 (1995) (pointing out differing results in studies of inclusion of children with severe disabilities, where one study showed social and communication benefits and others showed social isolation in general classroom).
316. Hallenbeck & Kauffman, supra note 18, at 63.
317. Id. at 57-58 (describing studies).
318. Id. at 59-61 (describing studies but noting some beneficial results for withdrawn children and children with relatively good behavior).
319. "How will children learn to behave if they have only the 'horrid examples' provided by others with disabilities?" Kauffman & Pullen, supra note 176, at 8.
320. Id.
321. Hallenbeck & Kauffman, supra note 18, at 66.
322. See Kauffman & Pullen, supra note 176, at 8.
323. See cases cited supra note 290.
324. Kauffman & Pullen, supra note 176, at 8. ("[M]ost students with disabilities, like most other students, seem to learn unpredictably from appropriate peer models in the absence of an explicit imitation-training program.").
325. Hallenbeck & Kauffman, supra note 18, at 66.
326. Id. at 55 (describing studies); Kauffman & Pullen, supra note 176, at 8.
327. Coleman & Minnett, supra note 110, at 243. Some researchers claim that this comparison group is beneficial to the self-esteem of disabled children, particularly those who are socially rejected. Id. at 243-44; see also Hallahan & Kauffman, supra note 265, at 504 (suggesting that persons with learning disabilities consider themselves part of learning disability culture, that they embrace having learning disability as being part of their identity).
328. Hallenbeck & Kauffman, supra note 18, at 56.
329. See Thomas W. Farmer et al., The Social Behavior and Peer Relations of Emotionally and Behaviorally Disturbed Children in Residential Treatment, 1 J. Emotional & Behavioral Disorders 223 (1993) (presenting research suggesting that children in well-taught, special education classes for students with emotional or behavioral disorders can develop social affiliations that foster pro-social behavior); Hallahan & Kauffman, supra note 265, at 505 (noting that among individuals with other identifying differences - senior citizens, veterans of foreign wars, recovering alcoholics, parents of children with specific disabilities - regular congregation is seen as vital part of identity and support). Interestingly, many in the deaf community have been suspicious of the inclusion movement, and some prefer separate settings or residential institutions.
330. See H. Lane, Listen to the Needs of Deaf Children, N.Y. Times, July 17, 1987, at A35. "In many ways, the deaf are proud of their deafness." Hallahan & Kauffman, supra note 265, at 503.
331. Hallahan & Kauffman, supra note 265, at 505 (quoting Eugene Edgar & Shepherd Siegel, Postsecondary Scenarios for Troubled and Troubling Youth, in Issues in Educational Placement: Students with Emotional and Behavioral Disorders 274 (James M. Kauffman et al. eds., 1995)).
332. 347 U.S. 483 (1954).
333. Id. at 495.
334. Kauffman & Pullen, supra note 176, at 9.
335. See, e.g., Sage & Burello, supra note 20, at 39 (asserting that principles established in Brown are applicable to "other discriminatory classifications," including classification of disabled); see also Weber, supra note 2, at 393 (noting "powerful analogy to race cases"). Moreover, "the existence of a disproportionate number of minority children in [special] classes opened them to critical scrutiny as pockets of segregation within schools." MacMillan et al., supra note 102, at 470. A discussion of this issue is beyond the scope of this Article. Compare Theresa Glennon, Race, Education, and the Construction of a Disabled Class, 1995 Wis. L. Rev. 1237, 1243-44 (claiming that unconscious and structural racism is pervasive in special education system) with Clune & Van Pelt, supra note 83, at 17 (pointing out possibility that factors other than racial discrimination might account for disproportionate number of black children in special education classes).
336. See, e.g., Dorothy K. Lipsky & Alan Gartner, Capable of Achievement and Worthy of Respect: Education for Handicapped Children as if They Were Full-Fledged Human Beings, 54 Exceptional Children 69, 70 (1987) (citation omitted).
337. Susan Stainback & William Stainback, Letter to the Editor, 21 J. Learning Disabilities 452, 452-53 (1988).
338. But see Weber, supra note 2, at 393 n.233 (claiming that comparison between racial segregation and disability segregation is precise "[w]hen mainstreaming is at issue").
339. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 122 (1995) (Thomas, J., concurring) ("After all, if separation itself is a harm and if integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks.").
340. See, e.g., Wendy Brown-Scott, Justice Thurgood Marshall and the Integrative Ideal, 26 Ariz. St. L.J. 535, 535 (1994) (pointing out argument by African Americans that historically black public colleges and universities should be preserved);
341. Joshua E. Kimerling, Comment, Black Male Academies: Re-Examining the Strategy of Integration, 42 Buff. L. Rev. 829 (1994) (noting that as result of persistent educational achievement disparities between black and white American students, educators are proposing and implementing creation of all-black, male public academies);
342. Anemona Hartocollis, Groups: Get All-Girls School Off A-Gender, N.Y. Daily News, July 16, 1996, at 14 (discussing how philanthropist Ann Rubenstein Tisch hopes to establish all-girls public school in East Harlem because statistics show that "top schools in England are single-sex and that girls do better in science and math when they are apart from boys");
343. David Sadker & Jacqueline Sadker, Separate - But Still Short-Changed, Wash. Post, Nov. 1, 1995, at A19 (discussing research that suggests that many girls do better in single-sex schools, where they often attain higher levels of academic performance and career aspirations than girls in coeducational settings).
344. See Steven A. Holmes, Look Who's Saying Separate Is Equal, N. Y. Times, Oct. 1, 1995, at 2.
345. Yarbrough, supra note 261, at 686 (citing Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 479-80 (1976));
346. see also Kevin Brown, Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education, 78 Iowa L. Rev. 813, 820-21 (1993) (explaining that need for alternative education of African Americans to improve educational performance is embodied in concept of immersion schools);
347. Gerald W. Heaney, Busing, Timetables, Goals, and Ratios: Touchstones of Equal Opportunity, 69 Minn. L. Rev. 735, 811 (1985) (noting preferences of some black parents in St. Louis for improved schools over integrated schools);
348. Christopher Steskal, Creating Space for Racial Difference: The Case for African American Schools, 27 Harv. C.R.-C.L. L. Rev. 187 (1992);
349. Paul M. Barrett, Busing Revisited: Court to Ponder Issue of School Integration as Some Blacks Shift, Wall St. J., Oct. 4, 1991, at A1 (noting that African American parents are more concerned with obtaining fair share of resources for neighborhood schools than with having integrated schools);
350. James Traub, Separate and Equal, Atlantic, Sept. 1991, at 24 (pointing out support of black parents for school placement plan that returned many students to racially segregated schools based on improved achievement test scores);
351. Larry Tye, U.S. Sounds Retreat in School Integration, Boston Globe, Jan. 5, 1992, at I (noting increasing numbers of segregated schools and support of black leaders for schools designed to meet needs of inner-city black youth).
352. See David J. Armor, Forced Justice, School Desegregation and the Law 61 (1995).
353. Id. at 112. Armor asserts that gains made by black students are primarily attributable not to desegregation, but to improved educational and economic status of black parents. See id. at 76-98. He sets forth evidence that implies that desegregation may in fact lower black self esteem. Id. at 101. He also notes that studies on the effect of desegregation on race relations and on other long-term benefits are inconclusive. Id. at 102-03, 107-08.
354. Cf. Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 Emory L.J. 791, 793-98 (1993) (describing historical debate over separate versus integrated education in African American community).
355. Brown v. Board of Educ., 347 U.S. 483, 493 (1954).
356. Id.
357. Sage & Burello, supra note 20, at 39.
358. Brown, 347 U.S. at 493.
359. See Kauffman, supra note 263, at 261-62. ("[T]he physical, cognitive and behavioral characteristics of handicapped children and youth are more complex and relevant to learning and to the function of schools . . . than is ethnic origin."); Judith Welch Wegner, The Antidiscrimination Model Reconsidered: Ensuring Equal Opportunity Without Respect to Handicap Under Section 504 of the Rehabilitation Act of 1973, 69 Cornell L. Rev. 401, 429 (1984) (explaining how denial of equal opportunity on basis of disability can be distinguished from denial of equal opportunity on basis of race).
360. See Kauffman, supra note 263, at 262 ("[S]eparateness may be required for equality of opportunity when separation is based on criteria directly related to teaching and learning."). The child should, of course, be mainstreamed "to the maximum extent appropriate" for lunch, recess, art, music, or physical education. 20 U.S.C. § 1412(5)(B) (1994).
361. See National Sch. Pub. Relations Ass'n, supra note 2, at 63-64; Kauffman & Pullen, supra note 176, at 7-8.
362. Kauffman, supra note 263, at 262.
363. See Brown, De Jure Segregation, supra note 207, at 67; see also Brown-Scott, supra note 315, at 545 (pointing to possibility that integration itself caused stigma). Compare Brown-Scott's critique of Brown with the critique of the article by Lloyd Dunn, see infra note 341.
364. See supra note 20.
365. Cf. Kauffman, supra note 263, at 261 (pointing out that inclusion advocates cited Brown and "discredited doctrine of 'separate but equal' as justification for the integration of handicapped students into regular classrooms").
366. Macmillan et al., supra note 102, at 477 (quoting Mencken).
367. See Sage & Burello, supra note 20, at 39; Kauffman & Pullen, supra note 176, at 9.
368. Brown v. Board of Educ., 347 U.S. 483, 495 (1954).
369. Id. at 494 (quoting Brown v. Board of Educ., 98 F. Supp. 797 (D. Kan. 1951)).
370. Board of Educ. v. Dowell, 498 U.S. 237, 258 (1991) (Marshall, J., dissenting).
371. See, e.g., Brown, De Jure Segregation, supra note 207, at 67-80 (criticizing ideological framework established by Brown and its progeny as replicating same disease they purported to cure);
372. Alex M. Johnson, Bid Whist. Tank and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 Cal. L. Rev. 1401, 1402 (1993) (stating that Brown was a mistake);
373. Drew S. Days III, Brown Blues: Rethinking the Integrative Ideal, 34 Wm. & Mary L. Rev. 53 (1992) (asserting that growing number of African Americans are repudiating integrative ideal).
374. See, e.g., Brown, De Jure Segregation, supra note 207, at 67-68.
375. Browvn, 347 U.S. at 492 (emphasis added). But see Brown, supra note 320, at 808 (explaining that "equal" part of "separate but equal" was generally ignored and that in three of four state cases before Court "the physical facilities and other tangible resources were not in fact equal").
376. See, e.g., Brown-Scott, supra note 315, at 542 (asserting that Brown Court's stigma theory implied that "black children are inferior").
377. See, e.g., Id. at 541-42 n.28 (citing recent studies that criticize studies presented to Brown Court); Philip Elam, Response, 100 Harv. L. Rev. 1949, 1955-56 (1987) (same);
378. William E. Cross, Jr., Shades of Black: Diversity in African-American Identity 115-17 (1991) (arguing that psychologist confused racial group identity preference with self-esteem, assuming that racial group preference would automatically correspond with self-esteem). The studies - introduced into evidence in the trials leading to the U.S. Supreme Court appeal - showed that African American children viewed themselves as inferior to white people. See Brown-Scott, supra note 315, at 542. These studies bolstered the theory that state-sponsored separation stigmatized African American children, impairing their self-esteem and their ability to learn. See id.; cf. Kauffman, supra note 263, at 271 (pointing out that studies of social status of children with disabilities do not show that stigma and isolation they feel is necessarily result of their being taught outside regular classroom). Along a similar vein, scholars are now criticizing the so-called "efficacy studies" that Lloyd Dunn relied on in his article that is said to have been the genesis of the inclusion movement. See, e.g., Hallahan & Kauffman, supra note 265, at 496 (explaining why studies were flawed). According to Dunn, the studies consistently suggested that "retarded pupils make as much progress or more in the regular grades as they do in special education . . . . Efficacy studies on special day classes for other mildly handicapped children, including the emotionally handicapped, reveal the same results." Dunn, supra note 95, at 8. Scholars now point out that "virtually all of these studies were flawed because they did not include random assignment of students to classes." Hallahan & Kauffman, supra note 265, at 501. Researchers have difficulty dealing with the ethical and legal issues of random placement because placement is supposed to be in the best interest of the child. Id. Thus, those placed in special classes likely had "learning problems that were more severe and less tractable." Id. In the rare studies using random assignment, "the results were, if anything, favorable toward the efficacy of special classes." Id. (citing studies).
379. See Brown-Scott, supra note 315, at 541.
380. Id. at 541 n.28.
381. See supra notes 203-64 and accompanying text.
382. Cf. Missouri v. Jenkins, 515 U.S. 70, 120 (1995) (Thomas, J., concurring) ("[T]he District Court misunderstood the meaning of Brown I. Brown I did not say that 'racially isolated' schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation.").
383. Brown-Scott, supra note 315, at 545; cf. Jenkins, 115 S. Ct. at 2061 (Thomas, J., concurring) ("It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.").
384. Brown, supra note 320, at 817.
385. Id. The theory that integration will raise self-esteem of African Americans echoes eerily with the claims of the full inclusion advocates. But, instead of increasing self-esteem, "many studies [have] found that desegregation actually had a negative impact on the self-esteem of African American school children." Brown, De Jure Segregation, supra note 207, at 80; see also id. at 80 n.333 (citing studies and stating that "[n]one of the desegregation studies [that were reviewed] found that desegregation had positive effects on [African American] self-esteem, but 25% found that desegregation had negative effects");
386. cf. James A. Washburn, Note, Beyond Brown: Evaluating Equality in Higher Education, 43 Duke L.J. 1115, 1150 (1994) (claiming that stigma may not exist for students in predominantly black colleges). Furthermore, social scientists have never been able to establish that desegregation alone would lead to significant increases in the educational achievement of African Americans.
387. See Brown, De Jure Segregation, supra note 207, at 59. As Professor Brown points out: [S]ocial scientists, taking their cue from the Supreme Court, have tried for years to establish that desegregation alone would lead to significant increases in the educational achievement of African-Americans. These studies, however, have not been able to establish consistently significant educational benefits for African-Americans derived from racial mixing alone. Id. at 57-58; see also id. at 58-59 n.255 (citing major study finding African American students' achievements did not rise in proportion to presence of white classmates);
388. Chris Hansen, Are the Courts Giving Up? Current Issues in School Desegregation, 42 Emory L.J. 863, 871 (1993) (pointing to studies that question whether desegregation improves educational services to minority children). Professor Brown has cautioned, "If desegregation does not succeed in significantly raising the academic achievement of African Americans, then from the perspective of the academic function of schools, its continued use as an appropriate remedy is open to serious question."
389. Brown, De Jure Segregation, supra note 207, at 59-60 n.256. Some commentators who criticize the belief that racial integration is necessary for quality education argue that, to the extent that problems of low self-esteem still exist, they could be addressed by building on an Afrocentric curriculum.
390. See, e.g., Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 Yale L.J. 1285, 1286-87 (1992).
391. Brown, De Jure Segregation, supra note 207, at 52-73.
392. See Freeman v. Pitts, 503 U.S. 467, 485 (1992) (stating stigmatic injury is one of present harms of past de jure segregation).
393. See Brown, De Jure Segregation, supra note 207, at 67-68.
394. 433 U.S. 267 (1977).
395. Brown, supra note 320, at 812 (quoting Milliken II, 433 U.S. at 287).
396. Brown v. Board of Educ., 347 U.S. 483, 494 (1954).
397. See Brown, supra note 320, at 812 ("[T]he Court views the harm of de jure segregation as more than just stigmatic, but also as retarding the cognitive, psychological, and emotional development of African-Americans."); see also Brown, De Jure Segregation, supra note 207, at 63 ("The Court's reasoning rests upon the belief that racial isolation had damaged and would continue to damage only African-American children.") (emphasis in original). Professor Brown also criticizes the notion that racial isolation had damaged and would continue to damage only African American children. Id. at 67; cf. Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Thomas, J., concurring) (asserting that Court majority reads Supreme Court cases to support theory that blacks suffer unspecified psychological harm from segregation that retards their mental and educational development, an approach that "rests on an assumption of black inferiority").
398. Melvin I. Semmel et al., Twenty-Five Years After Dunn's Article: A Legacy of Policy Analysis Research in Special Education, 27 J. Special Educ. 481, 485 (1994).
399. Id.
400. Yarbrough, supra note 261, at 691.
401. See Semmel et al., supra note 356, at 485 (acknowledging argument that "'white' schools had 'better' students" who would "provide social modeling of higher aspirations, skills, and motivation to minority students").
402. See Brown, supra note 320, at 819; cf. Gary Peller, Race Consciousness, 1990 Duke L.J. 758, 795 (claiming that integration caused blacks to lose "the ability to control and shape their children's education").
403. Brown-Scott, supra note 315, at 546 n.5; see also Johnson, supra note 337, at 1420 ("[T]he unique nomos of the African-American community is maintained, strengthened, and transmitted by African-American educational institutions . . . ."); cf. United States v. Fordice, 505 U.S. 717, 748 (1992) (Thomas, J., concurring) (stating that historically black colleges can be source of pride and source of hope).
404. See Brown, De Jure Segregation, supra note 207, at 74-75 n.309.
405. Id. at 73.
406. Gerald Torres, Local Knowledge, Local Color: Critical Legal Studies and the Law of Race Relations, 25 San Diego L. Rev. 1043, 1050 (1988).
407. Semmel et al., supra note 356, at 485 (emphasis in original).
408. Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 477-78 (1976);
409. cf. Michael Rebell, Structural Discrimination and the Rights of the Disabled, 74 Geo. L.J. 1435, 1436 (1986) (claiming that comparing disability discrimination to race discrimination often misleads courts).
410. Charles W. Telford & James M. Sawrey, Exceptional Individual 117 (3d ed. 1977). As discussed above, many federal courts that have addressed the disability inclusion issue have failed to consider carefully the extent to which inclusion affects the academic achievement of disabled students. See supra Part II.D.1. Indeed, the standard set by many courts would require inclusion even if inclusion would not significantly raise the academic achievement of the particular disabled student in question and even if the child would achieve better academically in a special classroom environment As with racial integration, however, inclusion does not always result in satisfactory academic achievement. Although research on academic achievement and inclusion is still in the early stages, one recent study reported that only 54% of the included students with learning disabilities had moved up in relative standing after one
411. See Naomi Zigmond et al., When Students Fail to Achieve Satisfactorily: A Reply to McLesky and Waldron, 77 Phi Delta Kappan 303, 303 (1995). Another study reported that the students in question - students with learning disabilities - progressed academically in special resource programs but did not progress in the general classroom.
412. See Douglas Fuchs & Lynn S. Fuchs, What's 'Special' About Special Education?, 76 Phi Delta Kappan 522, 522-30 (1995).
413. But see Dorothy K. Lipsky & Alan Gartner, Common Questions About Inclusion, 25 Exceptional Parent, Sept. 1995, at 36 (stating that although there are few full-scale evaluations of inclusive education outcomes, some studies show more behavioral progress and increased social competence but limited difference in academic performance for students with mild and moderate disabilities).
414. Telford & Sawrey, supra note 367, at 117.
415. Id.
416. Id. at 117-18 (stating that in only "most flagrant" case would child who is successful educationally be referred and inappropriately placed in special class); see also MacMillan et al., supra note 102, at 472 (explaining that referral for special education by general classroom teacher is "based on the teacher's perceptions that a child deviated markedly from classmates in achievement and social/personal adjustment and on the premise that the teacher had tried but failed to minimize the observed deficit").
417. See MacMillan et al., supra note 102, at 472 (explaining that it is difficult to argue that child referred for special class because of severe problems in general classroom "would be successful in regular education with no ancillary support").
418. See, e.g., Semmel et al., supra note 356, at 491 (defining classroom as part of "complex organization of people and activity that manifests itself as a particular culture, climate and environment").
419. Sherry, supra note 28, at 133.
420. Id.
421. Ironically, this is precisely what many disabled students receive when they are educated in a segregated classroom.
422. See generally Richard A. Weatherly, Reforming Special Education: Policy Implementation from State Level to Street Level 73 (1979) (explaining difficulties inherent in educating large numbers of children and attending to each child's individual needs).
423. See, e.g., Judith H. Cohen, What Is a Teacher's Job?: An Examination of the Social and Legal Causes of Role Expansion and Its Consequences, 14 Harv. J.L. & Pub. Pol'y 427, 427 (1991) (noting how school services have taken on expanded dimensions where family or community have failed to do so). The passage of IDEA significantly increased the number of children placed in regular classrooms, requiring teachers to serve a much broader range of students with diverse educational and psychological needs. Id. at 433.
424. 20 U.S.C. § 1412(5)(B) (1994).
425. A synthesis of numerous surveys of teachers - many of which were conducted long before the call for full inclusion - reports that while most agreed with the general concept of mainstreaming/inclusion, "[a] substantial minority believed that students with disabilities would be disruptive to their classes or demand too much attention." Thomas E. Scruggs & Margo A. Mastropieri, Teacher Perceptions of Mainstreaming/inclusion, 1958-1995: A Research Synthesis, 63 Exceptional Children 59, 63 (1996). "Teachers are more willing to include students with mild disabilities than students with more severe disabilities, apparently because of teachers' perceived ability to carry on their teaching mission for the entire classroom." Id. at 64. Only about "one fourth to one third of teachers surveyed agreed they had sufficient time, training, or material/personnel resources to implement mainstreaming/inclusion successfully." Id. at 63.
426. 20 U.S.C. § 1412(5)(B).
427. See 34 C.F.R. § 300.552 note (1996).
428. See 34 C.F.R. pt. 104 app. A., subpt. D, para. 24 (1996) (analyzing final regulation promulgated under the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994)).
429. 34 C.F.R. § 300.552(d).
430. 34 C.F.R. § 300.552 note.
431. 29 U.S.C. § 794 (1994). Section 504 provides, "No otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, 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."
432. 34 C.F.R. § 104.34 (1996). The regulation states: A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. 34 C.F.R. § 104.34.
433. 34 C.F.R. § 300.552 note.
434. See 34 C.F.R. § 300.552 note.
435. See, e.g., Greer v. Rome City Sch. Dist., 950 F.2d 688, 697 (11th Cir. 1991); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-49 (5th Cir. 1989).
436. See Oberti v. Board of Educ., 995 F.2d 1204, 1217 (3d Cir. 1993) ("[I]f a child is causing excessive disruption of the class, the child may not be benefiting educationally in that environment.").
437. American Heritage College Dictionary 1268 (3d ed. 1993).
438. Some inclusion advocates would disregard even significant impairment for nondisabled students. See Kotler, supra note 37, at 381 ("If a normal child has the occasional misfortune to be assigned an incompetent teacher for a year, typically the harm caused can be corrected later through a formal or informal remedial process.").
439. 34 C.F.R. § 300.552 note.
440. See Dupre, supra note 25, at 98.
441. Id. at 99.
442. Id. at 98.
443. See Briggs v. Board of Educ., 882 F.2d 688, 693 (2d Cir. 1989).
444. See Dupre, supra note 25, at 99; Semmel et al., supra note 356, at 494 (noting that school environments vary "greatly with respect to their potential to accommodate individual differences"); cf. Lipsky & Gartner, supra note 367, at 37 (citing to study that showed no difference between inclusive and noninclusive classrooms in terms of instructional time lost to interruptions). Of course, this determination is a function of the classes studied. The kindergarten class in which Raphael Oberti was included must certainly have lost considerable instructional time due to Raphael's "repeated toilet accidents, temper tantrums, crawling and hiding under furniture, and touching, hitting and spitting on other children" and striking at and hitting the teacher and teacher's aide. See Oberti v. Board of Educ., 995 F.2d 1204, 1208 (3d Cir. 1993).
445. 34 C.F.R. § 300.552 note (1996).
446. 34 C.F.R. § 300.552 note.
447. See, e.g., Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1049 (5th Cir. 1989) (stating that disabled child "may require so much of the instructor's attention that the instructor will have to ignore the other student's needs in order to tend to the handicapped child"); Board of Educ. v. Holland, 786 F. Supp. 874, 879 (E.D. Cal. 1992) (stating that disabled child "may be disruptive or may unreasonably occupy the teacher's time to the detriment of other students"), aff'd sub nom. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994).
448. See Thomas E. Scruggs & Margo A. Mastropieri, What Makes Special Education Special? Evaluating Inclusion Programs with the Pass Variables, 29 J. Special Educ. 224, 226-27 (1995) (noting that teachers must adapt materials, instructional strategies, and instructional environments to meet needs of disabled students); Baker & Zigmond, supra note 18, at 173 (noting time required to make accommodations for learning disabled student who needed "constant one-on-one guidance");
449. Douglas Fuchs & Lynn Fuchs, Inclusive Schools Movement and the Radicalization of Special Education Reform, 60 Exceptional Children 294, 302 (1994) (pointing out "that teachers attempting to accommodate a wide diversity of students must orchestrate a greater number of activities and materials, substantially complicating their job").
450. See William E. Davis, The Regular Education initiative Debate: Its Promises and Problems, 55 Exceptional Children 440, 442 (1989) (explaining teacher frustration with "excellence versus equity trap" where there is increased "public pressure [for teachers], to improve the overall academic performance levels of their students" while they must also "attempt to 'accommodate' difficult-to-teach students within their classes - which may result in the overall decrease of student achievement scores").
451. Fuchs & Fuchs, supra note 402, at 302.
452. See, e.g., Payne v. North Carolina Dep't of Human Resources, 382 S.E.2d 449, 451 (N.C. Ct. App. 1989) (holding that standard of care for teachers is what person of ordinary prudence charged with teacher's duties would exercise in same circumstances).
453. Daniel R.R., 874 F.2d at 1051. But see Lipsky & Gartner, supra note 367, at 37 (citing to study that showed that even presence of students with severe disabilities had "no effect" on the amount of teacher attention received by students without disabilities). As the Daniel R.R. court and other courts have recognized, it is hard to comprehend how a teacher attempting to meet the unique needs of students with severe disabilities - for instance, students with severe behavioral problems who require individualized lesson plans, individualized materials, a modified teaching style, extra attention during lessons, and individualized testing - could meet the disabled child's IEP objectives without having some effect on the amount of teacher attention received by students without disabilities.
454. Daniel A.A., 874 F.2d at 1048.
455. Id. at 1049. Of course, although the court fails to say so, nondisabled children may also be deserving of and, depending on the lesson, may also require extra attention.
456. Oberti v. Board of Educ. 995 F.2d 1204, 1217 (3d Cir. 1993).
457. Greer v. Rome City Sch. Dist., 950 F.2d 688, 697 (11th Cir. 1991).
458. Daniel R.R., 874 F.2d at 1049 (emphasis added).
459. Board of Educ. v. Holland, 786 F. Supp. 874, 880 (E.D. Cal. 1992), aff'd sub nom. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994).
460. Daniel R.R., 874 F.2d at 1048.
461. Scruggs & Mastropieri, supra note 402, at 225.
462. Id.
463. See 20 U.S.C. § 1412(5)(B) (1994). Of course, under the statute, due consideration must be given as to whether supplementary aids and services provided to the disabled child would alleviate the problem. See supra notes 79-82 and accompanying text.
464. "The demands placed on teachers today are overwhelming. Not only are they being asked to do more than ever with regard to curriculum content, but they are faced with more and more students who are not identified for special education but who have a host of problems." Hallahan & Kauffman, supra note 267, at 499. Moreover, increases in poverty, drug abuse and family instability have led to more children at risk for both physical and psychosocial disabilities. See id. at 498-99. One teacher discussing her problems dealing with a child with an emotional disability stated, "He would bite other students and blow in their faces. He wouldn't stay in one place for a minute. I spent the entire year worrying that he would seriously injure another student." Webb, supra note 173, at 2.
465. Hallahan & Kauffman, supra note 267, at 498.
466. See Semmel et al., supra note 356, at 490.
467. William C. Morse, Comments From a Biased Viewpoint, 27 J. Special Educ. 531, 539 (1994).
468. See, e.g., John Leo, Mainstreaming's 'Jimmy Problem,'U.S. News & World Rep., June 27, 1994, at 22 (describing case where, after school district lost court battle for special education placement for child who threw chairs, toppled desks, and bit and kicked other children and teachers, teacher went on medical leave because of stress, and 12 of 31 children in class were removed by their parents).
469. Webb, supra note 173, at 2. One class with 36 students included 16 with disabilities. Id. Another with 40 students included 10 with disabilities. Id.
470. See, e.g., Board of Educ. v. Holland, 786 F. Supp. 874, 879 (E.D. Cal. 1992) ("A teacher's aide can minimize the burden on the teacher if the handicapped child is not disruptive but needs special assistance."), aff'd sub nom. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994).
471. See 20 U.S.C. § 1412(1) (1994) (requiring that states assure disabled children right to appropriate education).
472. Baker & Zigmond, supra note 18, at 177.
473. Id.
474. Id.
475. Id.
476. In addition, researchers have cautioned against placing nondisabled peers in the role of peer-tutor because they "suspect that the status inequality inherent in the teacher-student relationship mitigates against the possibility of friendly relations developing between disabled and nondisabled students." Murray-Seegert, supra note 39, at 33.
477. But see Shanker, supra note 14, at 39 (stating that those who argue that necessary supports will follow disabled children into regular classrooms should consider how the mentally ill were left without promised support when they were de-institutionalized).
478. 20 U.S.C. § 1412(5)(B) (1994).
479. See Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1049 (5th Cir. 1989).
480. See Oberti v. Board of Educ., 995 F.2d 1204, 1216 (3d Cir. 1993).
481. Id. at 1216. But see Daniel R.R., 874 F.2d at 1048 ("States need not provide every conceivable supplementary aid or service to assist the child.").
482. Oberti, 995 F.2d at 1217.
483. Id. at 1207-08.
484. Id. at 1208.
485. Id. at 1222 (quoting Oberti v. Board of Educ., 801 F. Supp. 1392, 1403 (D.N.J. 1992)).
486. Id.; see also Mavis v. Sobol, 839 F. Supp. 968, 989 (N.D.N.Y. 1994) (stating that school district did not provide adequate specialized education training to child's regular teacher and aide). In Mavis, the court determined that a child should be included in a regular classroom, despite evidence of behavioral problems and acting out, which was described in part as "striking students and jabbing students with sharp pencils." Id. at 991. The court stated, "It may well be that with adequate supplemental aids and services Emily would be less frustrated in a regular classroom . . . and, hence . . . would 'act out' less." Id.
487. Oberti, 995 F.2d at 1216 (emphasis added). In Department of Education v. Katherine D., 727 F.2d 809 (9th Cir. 1983), the court addressed the placement of a child who required school personnel to suction mucus from her tracheostomy tube and perform other health services. The court disagreed with the Department of Education's claim that the child's disability was so severe that "education in regular classes with the use of supplementary aids and services [could not] be achieved satisfactorily." Id. at 815; see also living Indep. Sch. Dist v. Tatro, 468 U.S. 883 (1984) (holding that school nurse must be provided for eight-year-old who was unable voluntarily to empty her bladder and needed to be catheterized every three to four hours).
488. See supra notes 394-429 and accompanying text.
489. See Katharine T. Bartlett, The Role of Cost in Educational Decisionmaking for the Handicapped Child, 48 Law & Contemp. Probs., Spring 1985, at 7, 7-8 ("A school district may understand that certain services sought by parents on behalf of a handicapped child would be extremely beneficial to the child, but nevertheless be concerned about the resource implications of those services.").
490. See, e.g., Baker & Zigmond, supra note 18, at 177.
491. See, e.g., Oberti, 995 F.2d at 1218 n.25; Daniel R.R. v. State Bd. of Educ., 874 F2d 1036 1049 n.9 (5th Cir. 1989).
492. 20 U.S.C. § 1414 (a)(1)(C)(iv) (1994).
493. Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).
494. Greer v. Rome City Sch. Dist., 950 F.2d 688,697 (11th Cir. 1991).
495. Id.
496. Id.
497. See Neal & Kirp, supra note 73, at 359 (expressing concern that IDEA may distort allocation of limited school district resources and pointing out how legal model therein treats parties to dispute as discreet from system in which they are located).
498. 20 U.S.C. § 1412(1) (1994) (emphasis added).
499. 20 U.S.C. § 1412(5)(B) (emphasis added).