The Individuals with disabilities Education act: Why considering Individuals one at a time creates untenable situations for students and educators

UCLA Law Review

Volumn 55, Issue 4, 2008, Pages 1041-1094

  Roberts, Megan ^a  

^a STANFORD UNIVERSITY   (United States)

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EID: 70349165967     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (337)

1. This hypothetical situation is drawn from a collection of the author's personal experiences as a public school teacher in California. The author taught in a midsize, middle-class school where many of the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. §§ 1400-85 (2000), goals were being realized: Teachers modified and individualized curriculum for students with disabilities; the school adhered to Individualized Education Plan (IEP) procedural requirements;
2. Most students with disabilities spent a significant part of the school day in general education classrooms. Although this hypothetical situation may be atypical, it is noteworthy nonetheless because it demonstrates problems faced by educators in some of those schools in which the IDEA is being successfully implemented. Under the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U. S. C. §§ 1400-85 (Supp. 2005), teachers must modify the classroom environment and lessons to meet the individual needs of each child with a disability, disorder, or "Gifted and Talented Education" (GATE) label. Thus, this active classroom environment, required under law to meet the varied needs of its students, is in legal conflict with the IEPs of those students with ADHD, whose plans guarantee them a quiet, focused learning environment. This required individual consideration can be problematic when more than one child with a disability is present in a given classroom, but the law has not yet addressed the growing dilemma of conflicting needs. Lawmakers and courts must address and resolve such conflicts before schools are left in the untenable position of trying to meet conflicting and competing needs without violating the law, as such conflicts are likely to increase as the number of students with disabilities increases.
3. See J. Matt Jameson & Dixie S. Huefner, "Highly Qualified" Special Educators and the Provision of a Free Appropriate Public Education to Students With Disabilities, 35 J. L and EDUC. 29, 29 (2006) (noting that "the number of students with disabilities has continued to grow at an average of 150, 000 new students each year").
4. 20 U. S. C. §§ 1400-85 (2000).
5. See, e.g., Melissa Burden, Special Education Retooled: Flint District Takes New Look at Serving Students With Needs, FLINT J., Oct. 11, 2006, at A3 (recognizing that there are issues of "crowding and cases of academic incompatibility and social clashes").
6. See Jameson and Huefner, supra note 1, at 29.
7. There are four main reasons that disputes arise in the area of special education law: (1) identifications, that is, whether children were eligible for IDEA services and how their eligibility determinations were made; (2) the types of special education and related services, if any, they needed; (3) whether schools carried out the education programs as written; and (4) whether schools could provide an appropriate educational environment for certain students.
8. U. S. Gen. accounting Office, Special Education: Numbers of Formal Disputes Are Generally Low and States Are Using Mediations and Other Strategies to Resolve CONFLICTS 10 (2003) (hereinafter GAO REPORT), available at http://www.gao.gov/new.items/d03897.pdf (basing this finding on the four states surveyed for the report).
9. See Office of Special Education Programs (OSEP), http://www.ed.gov/about/ offices/list/osers/osep/index.html (last visited Nov. 10, 2007).
10. The No Child Left Behind Act, Pub. L No. 107-110, 115 Stat. 1425 (2002), places pressure on schools to maximize student performance, but this requirement may conflict with socially beneficial but academically marginal results that courts sometimes allow as support for a less restrictive environment. Id.;
11. see infra Part II.
12. 115 Stat. 1425.
13. The Education of the Handicapped Act (EHA), Pub. L No. 91-230, 84 Stat. 175 (1970)
14. was reauthorized as the Education for All Handicapped Children Act of 1975 (EAHCA), Pub. L No. 94-142, 89 Stat. 773 (1975);
15. EAHCA was reauthorized as the Individuals with Disabilities Education Act (IDEA), Pub. L. No. 101-476, 104 Stat. 1103 (1990);
16. IDEA was reauthorized as IDEIA, Pub. L. No. 108-446, 118 Stat. 2647 (2004) (codified as amended at 20 U. S. C. §§ 1400-85 (Supp. 2005)).
17. See sources cited supra note 9.
18. See GAO REPORT, supra note 5, at intra.
19. Id. at 10.
20. See James R. Newcomer and Perry A. Zirkel, An Analysis of Judicial Outcomes of Special Education Cases, 65 EXCEPTIONAL CHILD. 469, 478 (1999) (stating that the student's placement was at issue in 63 percent of a representative sample of litigated cases between 1975 and 1995); GAO REPORT, supra note 5, at 3 (stating that in six of eight school districts visited, "disputes had resulted from decisions over students' educational placements"). Interestingly, in three out of four disputes involving placement, parents desire a more restrictive placement than the school district does.
21. See Newcomer and Zirkel, supra, at 478. For students with profound disabilities, parents often feel that their children will gain more from specialized programs than from modification of the regular classroom.
22. See, e.g., John Mooney, The High Cost of Special Education: Families Say That Inclusion Will Leave Autistic Behind, STAR-LEDGER (Newark, N. J.), Oct. 9, 2006, at 13 (describing the migration of families with autistic children to New Jersey because of the availability and regularity of placements in specialized programs there).
23. Tamara Wong, Note, Falling Into Full Inclusion: Placing Socialization Over Individualized Education, 5 U. C. DAVIS J. JUV. L and POL'Y 275, 275 (2001).
24. See, e.g., Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994);
25. Oberti v. Bd. of Educ, 995 F.2d 1204, 1217-18 (3d Cir. 1993);
26. Greer v. Rome City Sch. Dist., 950 F.2d 688, 697 (11th Cir. 1991);
27. DeVries v. Fairfax County Sch. Bd., 882 F.2d 876, 879 (4th Cir. 1989);
28. Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036, 1048-50 (5th Cir. 1989);
29. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983).
30. No courts mention the potential conflict between the needs of the child before the court and those of other students in the class.
31. With 13 percent of students qualifying as disabled under the IDEA, the average thirty-student classroom will have at least three children with disabilities.
32. See Terry Jean Seligmann, An IDEA Schools Can Use: Lessons From Special Education Legislation, 29 FORDHAM URB. L. J. 759, 760 (2001).
33. This picture is not complete with only these students with special needs, for in every class there are also regular education students who do not qualify as disabled under any federal labels but who still require attention, and often specialized attention, from the teacher in order to learn. Because more than half of all students with disabilities were included in the regular classroom for at least 80 percent of the school day in the 2004-2005 school year, the number of students with recognized special needs in regular classrooms is great already. NAT'L, CTR. FOR Educ. Statistics, Indicator 31: Inclusion of Students With disabilities in General CLASSROOMS (2007), http://nces.ed.gov/programs/coe/ 2007/section4/table.asp?tableID=717.
34. These plans, required By federal law, include IEPs and Section 504 of the Rehabilitation Act Plans, which will be discussed in more detail later in this Comment
35. See infra pp. 1052-53, 1056-57.
36. Because the Act is commonly known as the "IDEA," and because cases and articles discussed in this comment refer to the Act as the "IDEA," I will use "IDEA" and "IDEIA" interchangeably after Part I's discussion of their differences.
37. See Mark C. Weber, Reflections on the New Individuals With Disabilities Education Improvement Act, 58 FLA. L. REV. 7, 10 (2006).
38. See sources cited supra note 9.
39. See Cynthia L. Kelly, Individuals With Disabilities Education Act-The Right "IDEA" for All Childrens' Education, 75 J. KAN. BUS. ASS'N 24, 26 Mar. 2006
40. referencing Pub. L No. 105-17, 111 Stat. 88 1997
41. and Pub. L. No. 108-446, 118 Stat. 2715 (2004), and noting that the IDEA'S "[f]ocus [has] shifted from access to educational opportunities to improvement of performance and educational achievement").
42. 20 U. S. C. § 1412 (5) (2000).
43. Pub. L No. 91-230, §§ 601-685, 84 Stat. 175 (1970) (codified as amended at 20 U. S. C. §§ 1400-1485 (2000 and Supp. 2005)).
44. See Weber, supra note 20, at 10.
45. The decisions in two class action suits brought on behalf of students with disabilities who were denied meaningful opportunities to learn demonstrated a need for legislation in the area of educating students with disabilities. See Pa. Ass'n for Retarded Children (PARC) v. Pennsylvania, 334 F. Supp. 1257 (ED. Pa. 1971), 343 F. Supp. 279 (E. D. Pa. 1972);
46. Milk v. Bd. of Educ, 348 F. Supp. 866 (D. D. C. 1972);
47. see also Weber, supra note 20, at 10 (noting that the decisions in Pennsylvania Ass'n for Retarded Children v. Pennsylvania and Mills v. Board of Education established "entitlements to education" for students with disabilities before Congress took action).
48. Pub. L. No. 94-142, 89 Stat. 773 (1975) (codified as amended at 20 U. S. C. §§ 1400-1485 (2000 & Supp. 2005)).
49. See id. at 774; Weber, supra note 20, at 10.
50. See 89 Stat, at 780-83.
51. Id.
52. A child is eligible for an IEP when the child's educational progress is adversely affected by his or her disability such that special services or accommodations are needed.
53. See 20 U. S. C. § 1414 (d) (l) (A) (i) The child's parents (and the child, if old enough) join a team of school officials (a regular education teacher, an administrator or other school official knowledgeable about district resources, a special education teacher, and a psychologist or other person qualified to interpret the student's testing results) to design an IEP.
54. See 20 U. S. C. § 1414 (d) (1) (B). The IEP will take into account the child's current academic performance, how the child's disabilities affect his or her learning, and any special services or accommodations that the child needs in order to meet measurable performance goals set by the team.
55. See 20 U. S. C. § 1414 (d) (1) (A). Parents and the school team must agree on the services the school will provide and the manner in which these services will be provided.
56. See 20 U. S. C. § 1414 (d) (2) (b) (ii). Each IEP is created on a child-by-child basis, without reliance on other students' placements and IEPs.
57. See 20 U. S. C. § 1414 (d) (3).
58. See 20 U. S. C. §1412.
59. See GAO REPORT, supra note 5, at intro, (presenting the increasing number of students from 1996 to 2000 requesting due process hearings under the IDEA).
60. Individuals with Disabilities Education Act of 1990, Pub. L. No. 101-476, § 901, 104 Stat. 1103, 1141-42 (1990) (codified as amended 20 U. S. C. §§ 1400-85).
61. See id.
62. see also Stanley S. Herr, Special Education Law and Children With Reading and Other Disabilities, 28 J. L. & EDUC. 337, 345-46 (1999). By broadening the types of disabilities covered by the law, Congress increased the number of students who would qualify for services.
63. See 104 Stat. 1103.
64. See id.
65. See, e.g., 20 U. S. C. § 1401 (c) (5) (D) (1994 and Supp. 1999); § 1414 (d) (1) (A).
66. See S. REP. No. 105-17, at 21 (1997) (stating that "the law and this bill contain a presumption that children with disabilities are to be educated in regular classes").
67. See § 1401 (c) (5) (D).
68. See § 1414 (d) (1) (A) (requiring "an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class"). Thus, Congress clearly intended for schools to place a student with disabilities in regular educational settings with appropriate aids and services before determining that a more restrictive environment would be appropriate for the student. In contrast, the previous version of the IDEA required schools to include in a child's IEP an explanation of "the extent" to which "[the] child will be able to participate in regular educational programs." H. R. REP. No. 105-95, at 149 (1997); 34 C. F. R. § 300.346 (a) (3) (2006).
69. Pub. L. No. 105-17, § 101 (1997). Some have argued that the wording of the LRE section indicates that "the provision describing LRE begins with 'to the maximum extent appropriate!,]' ⋯ [so s]ubstance (the IEP) comes before setting (LRE)." Julie F. Mead, Expressions of Congressional Intent: Examining the 1997 Amendments to the IDEA, 127 WEST'S EDUC. L. REP. 511, 517 (1998).
70. See Pub. L. No. 108-446, 118 Stat. 2647 (2004) (codified as amended at 20 U. S. C. § 1415 (Supp. 2005)).
71. See id. The IDEIA does amend the Act in a few ways, such as requiring that special education teachers be highly qualified, but these are not relevant to this Comment.
72. Compare 20 U. S. G § 1415 (i) (3) (B) (2000)
73. with 20 U. S. C § 1415 (i) (3) (B) (Supp. 2005).
74. See 20 U. S. C. § 1415 (i) (3) (B) (Supp. 2005).
75. See id.
76. See, e.g., Eileen M. Blackwood, Special Education: Will the "Improvements" Decrease Protections for Parents and Students!, 32 VT. B. J. and L DIG. 52, 54 (2006).
77. Pub. L. No. 107-110, 115 Stat. 1425 (2002);
78. see Weber, supra note 20, at 16-17 (noting that both the IDEA and NCLB require that special education teachers be highly qualified). The NCLB also requires that students with disabilities take the same standardized tests as their nondisabled peers, holding schools accountable for educating their disabled students as the IDEIA likewise seeks to do. Id. at 19-21.
79. See id. at 19-21.
80. Id. at 16-21.
81. 20 U. S. C. § 1400.
82. GAO REPORT, supra note 5.
83. 20 U. S. C.§1414.
84. Id.
85. Id.
86. See, e.g., Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 193 (2d Cir. 2005) (finding that because parents had an opportunity to participate in designing the IEP, procedural requirements were not violated).
87. But see M. L. v. Fed. Way Sch. Dist., 394 F.3d 634, 646 (9th Cir. 2005) (noting that the lack of a regular education teacher on the IEP team was significant and violated the IDEA procedural requirements).
88. See Bd. of Educ. v. Rowley, 458 U. S. 176, 206-07 (1982).
89. See, e.g., Cerra, 427 F.3d 186.
90. See id.
91. See, e.g., Jacobsen v. District of Columbia Bd. of Educ, 564 F. Supp. 166 (D. D. C. 1983);
92. Christen G. v. Lower Merion Sch. Dist., 919 F. Supp. 793 (E. D. Pa. 1996).
93. See 20 U. S. C. § 1415 (i) (2) (C) (iii) (Supp. 2005).
94. See Newcomer and Zirkel, supra note 13, at 478 (stating that the student's placement was at issue in 63 percent of a representative sample of litigated cases between 1975 and 1995).
95. 20 U. S. C § 1412 (a) (5) (quoting from the section headed, "Least Restrictive Environment").
96. See id.
97. Id. (emphasis added).
98. It is important to note that the appropriateness of the setting selected for the child is judged prospectively, so the setting need not result in the sought-after results in order for the school district to be in compliance with LRE requirements. Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995) (noting that "appropriateness is judged prospectively so that any lack of progress under a particular IEP ⋯ does not render that IEP inappropriate").
99. 458 U. S. 176 (1982).
100. Id. at 207.
101. See, e.g., Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036 (5th Or. 1989).
102. Many of the famous cases in which circuit courts present a test for determining whether a student is being educated in the least restrictive environment originated because the parents wanted their children in less restrictive environments
103. See, e.g., Beth B. v. Van Clay, 282 F.3d 493 (7th Cir. 2002);
104. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Or. 1994);
105. Daniel R. R., 874 F.2d 1036;
106. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983).
107. However, the majority of cases brought regarding placement involve parents seeking a more restrictive environment for their children with disabilities. Newcomer & Zirkel, supra note 13, at 478.
108. See, e.g., JEAN B. CROCKETT & JAMES M. KAUFFMAN, THE LEAST RESTRICTIVE ENVIRONMENT: ITS ORIGINS AND INTERPRETATIONS IN SPECIAL EDUCATION 21 (Lawrence Erlbaum Assocs. 1999);
109. Stacey Gordon, Making Sense of the Inclusion Debate Under IDEA, 2006 BYU EDUC. and L. J. 189, 211-12 (2006).
110. See, e.g., Gordon, supra note 72, at 212-13.
111. Over 90 percent of students with disabilities identified under the IDEA must take the standardized tests with accommodations, while those whom the school districts find to have the "most significant cognitive disabilities" can take an alternate form of assessment. U. S. Education Department Allows Alternate Testing of Some Students With Disabilities, ANDREWS DISABILITY LlTIO. REP., Jan. 2004, at 13.
112. See 34 C. F. R. § 200.13 (c) (1) (2007).
113. The NCLB includes students with disabilities as one of the four disaggregated groups, making the improvement and success of this group paramount to a school's overall progress and success.
114. See Perry A. Zirkel, Initial Implications of the NCLB for Section 504, 191 WEST'S EDUC. L REP. 541, 542 (2004) (acknowledging that the pressure on schools to maintain passing scores of the disaggregated group of students with disabilities might lead to schools manipulating data); see also Weber, supra note 20, at 20-21.
115. See 20 U. S. C. § 1401 (3) (a) (Supp. 2005).
116. Tom E. C. Smith, Section 504, the ADA, and Public Schools, LD ONLINE, 2001, http://www.ldonline.org/article/6108 (indicating that major life activities include, for example, "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working").
117. Id.
118. See 20 U. S. C. § 1401 (3) (a) (explaining that only those students whose disabilities necessitate their receiving special education and related services qualify for such under the IDEA).
119. See Smith, supra note 78.
120. See id.
121. NAT'L CTR. FOR EDUC. STATISTICS, supra note 17 (providing statistics about students with disabilities through school year 2004-2005).
122. See GAO REPORT, supra note 5, at intro. (noting that there were about three thousand due process hearings per year from 1996 to 2000 regarding placements, any of which could be appealed to district court eventually).
123. For example, the Fifth Circuit's opinion in Daniel R. R. states: When a parent is examining the educational opportunities available for his handicapped child, he may be expected to focus primarily on his own child's best interest Likewise, when state and local school officials are examining the alternatives for educating a handicapped child, the child's needs are a principal concern. But other concerns must enter into the school official's calculus. Public education of handicapped children occurs in the public school system, a public institution entrusted with the enormous task of serving a variety of often competing needs. In the eyes of the school official, each need is equally important and each child is equally deserving of his share of the school's limited resources.
124. Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036, 1052 (5th Cir. 1989) (emphasis added).
125. 458 US. 176 (1982).
126. See id. at 206-07. The first prong-procedural requirements-was met but is not relevant to discuss here. See id. at 206-07, 209.
127. See id. at 209-10.
128. Id. at 206-07.
129. See supra Part II.
130. The issue of the effect of the student with a disability on the regular classroom will be the focus of Part III. Though this topic receives much attention, it has been inadequately addressed by the circuits thus far, leaving schools open to a catch-22 in which they will be unable to adhere to some of the requirements of IDEA as interpreted by the courts without simultaneously violating other requirements.
131. See generally Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994);
132. Oberti v. Bd. of Educ, 995 F.2d 1204, 1217-18 (3d Cir. 1993);
133. Greer v. Rome City Sch. Dist., 950 F.2d 688, 697 (11th Or. 1991);
134. Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036, 1048-50 (5th Cir. 1989);
135. DeVries v. Fairfax County Sch. Bd., 882 F.2d 876, 879 (4th Cir. 1989);
136. A. W. v. Nw. R-l Sch. Dist., 813 F.2d 158 (8th Cir. 1987);
137. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983).
138. 700 F.2d 1058 (6th Or. 1983).
139. See id. at 1063 (noting that "[c]ost is a proper factor to consider since excessive spending on one handicapped child deprives other handicapped children," but that "[c]ost is no defense, however, if the school district has failed to use its funds to provide a proper continuum of alternative placements for handicapped children").
140. See id. at 1060.
141. Id.
142. Id. at 1060-61.
143. See id. at 1063-64.
144. 813 F.2d 158, 163 (8th Cir. 1987).
145. 882 F.2d 876, 879 (4th Cir. 1989).
146. These two courts' consideration of whether the placement violates the LRE requirement demonstrates some deference to school officials, as opposed to those courts that consider whether the placement meets the LRE requirement. While the former assume the school district's choice of placements was reasonable unless proven otherwise, the latter force the school to demonstrate the appropriateness of the placement over other alternatives.
147. A. W., 813 F.2d at 161-63.
148. DeVries, 882 F.2d at 878-79.
149. A. W., 813 F.2d at 163-64.
150. Id. at 160.
151. Id. at 163-64.
152. Id. at 161-62.
153. See id. at 162-63.
154. See DeVries v. Fairfax County Sch. Bd., 882 F.2d 876, 879-80 (4th Cir. 1989).
155. See id.
156. 118 F.3d 996 (4th Cir. 1997).
157. Id. at 1001. See also Cheltenham Sch. Dist. v. Joel P., 949 F. Supp. 346, 352 (ED. Pa. 1996)
158. (paraphrasing the court's reasoning in Barnett v. Fairfax County School Board, 927 F.2d 146, 153-54 (4th Cir. 1991)).
159. 118 F.3d at 999-1000.
160. See id. at 1004 (noting that "[t]he district court also gave little or no weight to the disruptive effects of Mark's behavior in the classroom, stating that '[g]iven the strong presumption for inclusion under the IDEA, disruptive behavior should not be a significant factor in determining the appropriate educational placement for a disabled child.' This statement simply ignores DeVries, where we specifically held that mainstreaming is inappropriate when 'the handicapped child is a disruptive force in the non-segregated setting'" (citing to DeVries, 882 F.2d at 879)).
161. See Hartmann, 118 F3d at 1002 ("Any such [social] benefits, however, cannot outweigh his failure to progress academically in the regular classroom. The mainstreaming provision represents recognition of the value of having disabled children interact with non-handicapped students. The fact that the provision only creates a presumption, however, reflects a congressional judgment that receipt of such social benefits is ultimately a goal subordinate to the requirement that disabled children receive educational benefit.");
162. DeVries, 882 F.2d at 879-80 (finding that "'Michael would simply be monitoring classes' with nonhandicapped students" and would be unable to effectively "bridge the 'disparity in cognitive levels' between him and the other students," so that such a placement would not be the appropriate one (quoting the lower court)).
163. Hartmann, 118 F.3d at 1001.
164. Joel P., 949 F. Supp. at 352 (paraphrasing the court's reasoning in Borneo, 927 F.2d at 153-54).
165. Hartmann, 118 F.3d at 1005 (citing to DeVries, 882 F.2d at 879).
166. See infra Part III.
167. 874 F.2d 1036 (5th Or. 1989).
168. See id. at 1048.
169. See, e.g., Greer v. Rome City Sch. Dist., 950 F.2d 688, 695-96 (11th Cir. 1991);
170. Oberti v. Bd. of Educ, 995 F.2d 1204, 1220 (3d Cir. 1993).
171. Darnel R. R., 874 F.2d at 1048.
172. See id. at 1048-50.
173. See id. at 1045.
174. See id. at 1044.
175. Michael Harelkorn, 182 WEST'S EDUC. L. REP. 655, 662 (2004)
176. (citing to Mitchell L. Yell, Least Restrictive Environment, Inclusion, and Students With Disabilities: A Legal Analysis, 28 J. SPECIAL EDUC. 389, 393 (1995)).
177. 874F.2d at 1039.
178. Id. Additionally, the court noted that it was not that Daniel's behavior was disruptive in the traditional sense, but rather that the hearing officer had found that Daniel was "disruptive by so absorbing the efforts and energy of the staff as to impair the quality of the entire program for the other children." Id. at 1043.
179. Id. at 1039-40.
180. See id. at 1043.
181. Because the majority of students with disabilities have learning disabilities that would likely require only minor alterations in teaching style or small amounts of additional teacher attention, the presence of one of these students would not likely affect the educational experience of others in any significant way. John Mazzeo et al., U. S. Dep't of Educ, Increasing the Participation of Special Needs Students in NAEP: A Report on 1996 NAEP Research Activities (Feb. 2000), available at http://nces.ed.gov/nationsreportcard/pubs/ main1996/200473.asp (noting that "learning disability was by far the most frequently reported category for students with disabilities, with close to three out of four students so identified").
182. See Yell, supra note 126, at 393.
183. See Greer v. Rome City Sch. Dist., 950 F. 2d 688, 696 (11th Cir. 1991).
184. 950 F.2d 688.
185. See id. at 690.
186. Id. at 697.
187. Id.
188. See id.
189. Id. (noting that "34 C. F. R. § 300.552 Comment (quoting 34 C. F. R. part 104-Appendix, Paragraph 24) "states,"[w]here a handicapped child is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment").
190. Id. at 697. As many students' disabilities require only moderate amounts of extra time and attention from the teacher, in most cases the cost factor will not be determinative.
191. Id.
192. Id. (noting that while "a school district may [not] decline to educate a handicapped child in a regular classroom because the cost of doing so, with the appropriate supplemental aids and services, would be incrementally more expensive than educating the child in a self-contained special education classroom[,]⋯ a school district cannot be required to provide a handicapped child with his or her own full-time teacher, even if this would permit the child to be satisfactorily educated in the regular classroom. The school district must balance the needs of each handicapped child against the needs of other children in the district").
193. Id. at 698.
194. Id. at 697.
195. 995 F.2d 1204, 1215 (3d Cir. 1993).
196. See id. at 1217-18.
197. See id. at 1217 n. 24.
198. Id. at 1207.
199. Id. at 1208.
200. Id. at 1208-09.
201. See id. at 1220.
202. Id. at 1221-22.
203. See id. at 1222.
204. See id. at 1222-23. The Third Circuit's test for whether a child's behavior qualifies as disruptive enough to justify exclusion is "whether the child's disabilities will demand so much of the teacher's attention that the teacher will be required to ignore the other students." Id. at 1217.
205. 14 F.3d 1398 (9th Cir.1994).
206. See id. at 1400-04.
207. Id. at 1400.
208. See id. at 1401.
209. Id. at 1401-02 (noting that Rachel only required a part-time aide to participate without detracting from the learning going on).
210. County of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1467 (9th Cir. 1996).
211. 910 F.2d 627 (9th Cir. 1990).
212. Id. at 629.
213. See County of San Diego, 93 F.3d at 1467. Additionally, if the court finds that, in considering the first factor, the child would receive no educational benefit from a given placement, then the three other factors need not be considered, as "'the IDEA is primarily concerned with the long term educational welfare of disabled students.'"
214. Katherine G. v. Kentfield Sch. Dist., 261 F. Supp. 2d 1159, 1173-74 (N. D. Cal. 2003)
215. (quoting Poolaw v. Bishop, 67 F.3d 830, 836 (9th Cir. 1995)).
216. County of San Diego, 93 F.3d at 1467.
217. Though this case provided the analysis a court would need to evaluate whether a child received a FAPE generally, it did not address the LRE requirement, as there was no dispute over placement.
218. See Bd. of Educ. v. Rowley, 458 U. S. 176, 206-07 (1982).
219. See CRCCKETT & KAUFFMAN, supranote 72, at 21.
220. See, e.g., id. at 21.
221. See 20 U. S. C. § 1414 (d) (1) (A) (Supp. 2005).
222. See, e.g., Anne Proffitt Dupre, Disability and the Public Schools: The Case Against "Inclusion", 72 WASH. L REV. 775, 820-24 (1997).
223. See, e.g., DeVries v. Fairfax County Sch. Bd., 882 F.2d 876, 879-80 (4th Cir. 1989);
224. Dupre, supra note 169, at 824.
225. But see Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036, 1046 (5th Cir. 1989).
226. See, e.g., Sacramento Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994).
227. See, e.g., id.
228. Immediately after the EAHCA was implemented in 1975, there were about 3.7 million students (or school-age children) with disabilities being served under the Act, while today there are over 6 million. Seligmann, supra note 17, at 765.
229. See, e.g., Burden, supra note 3 ("Nationwide, three of every four students with disabilities are in a general-education classroom part or all of the day, according to [the] National Education Association. ").
230. Even as early as 1997, scholars noted that "every teacher [was] likely to have at least one learning disabled student during each class period."
231. Rosemarie Kolsrad, Mary M. Wilkinson and LD. Briggs, Inclusion Programs for Learning Disabled Students in Middle Schools, 117 EDUC. 419, 421 (1997). This number does not reflect the inclusion or exclusion of the 50 percent of students with disabilities who were not learning disabled. "As of 2000-2001... 47 percent of students with disabilities spent at least 80 percent of their school day in the general-education classroom, up from 31 percent in 1988-1989."
232. Ann Christy Dybvik, Autism and the Inclusion Mandate: What Happens When Children With Severe Disabilities Like Autism Are Taught in Regular Classrooms? Daniel Knows, EDUC. NEXT, Winter 2004, at 43, 44. Currently 50 percent of all students with disabilities spend 80 percent or more of the school day in regular classrooms. All Things Considered: Inclusion the Latest Trend in Educating Disabled, (NPR radio broadcast Nov. 19, 2007), available at http://www.npr.org/ templates/story/story.php?storyId=16435563&ft=l&f=1007.
233. Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036, 1048 (5th Cir. 1989).
234. Kelly, supra note 22, at 26-27 n. 23. Around 50 percent of students with disabilities have a specific learning disability, 19 percent have speech or language impairments, 10 percent have some form of mental retardation, and 8 percent are emotionally disturbed. Id. at 27.
235. Jameson & Huefner, supra note 1, at 29.
236. Seligmann, supra note 17, at 760;
237. see also Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46, 540 (Aug. 14, 2006) (to be codified at 34 C. F. R. pts. 300 & 301).
238. Increases in the number of students with autism, attention deficit disorder (ADD), and attention deficit hyperactivity disorder (ADHD) -all disabilities under the IDEA-have contributed to overall growth in the number of students qualifying for IDEA services.
239. See Nat'l Ctr. for Educ. Statistics, Fast Facts (2001), http://nces.ed.gov/fastfacts/display.asp?id=64 (last visited Oct. 17, 2007) (providing statistics about students with disabilities through school year 2003-2004).
240. See generally Wendy F. Hensel, Sharing the Short Bus: Eligibility and Identity Under the IDEA, 58 HASTINGS L. J. 1147, 1149 (June 2007).
241. See 20 U. S. C. § 1400 (c) (10) - (14) (Supp. 2005). The challenge of identifying and appropriately diagnosing students with disabilities (especially minority students) is still a problem today.
242. See Herr, supra note 35, at 345-47. Minority students continue to be overrepresented in special education numbers even decades after courts first recognized the use of biased testing for disability determinations. See id. at 346-47;
243. see, e.g., Larry P. v. Riles, 495 F. Supp. 926 (N. D. Cal. 1979) (describing the biased and inappropriate nature of the IQ tests used to identify students as having disabilities and the resulting overidentification of African American students as disabled). For example, Congress found that in the
244. See 20 U. S. C. § 1400 (c) (12) - (13). Similarly, students with limited English proficiency are often mislabeled as having disabilities. See id. § 1400 (c) (10) - (13). With a steadily increasing number of students with limited English proficiency and the difficulty of assessing their abilities due to language barriers, identifying students with disabilities can be a difficult task.
245. See id. § 1400 (c) (10) - (14). As a result, many students who are not proficient in English or who are minorities are incorrectly identified as having a disability and are inappropriately placed in special education or are overlooked when they do have a disability.
246. See id. § 1400 (c) (10) - (14);
247. Herr, supra note 35, at 346-47. On the other end of the spectrum is the overrepresentation of upper-middle-class students in special education. Because of the benefits that stem from the IDEA, such as individualized attention, supplementary aids and services, and accommodations and modifications to the curriculum, many parents seek to have their children found eligible for such benefits.
248. Wade F. Horn and Douglas Tynan, Revamping Special Education, PUB. INT., Summer 2001, at 36. Thus, parents who understand how the system works end up seeking special education diagnoses for their underperforming children. Id.
249. See Nat'l Ctr. for Educ. Statistics, supra note 180. An increased diagnosis of disabilities does not necessarily mean that there are more students who have disabilities than existed before, but rather only proves that more students' special needs are being recognized. The importance of the rising numbers, through increasing diagnosis or otherwise, however, is that students with recognized, diagnosed disabilities have a legal right to special programs, services, and accommodations that they did not have before diagnosis. So, while the challenges in dealing with such students might not differ before and after diagnosis, what a teacher will be legally required to do to accommodate the child will likely be different and might conflict with the way in which she runs her classroom and accommodates other students, with or without disabilities.
250. "In a survey sponsored by the American Federation of Teachers (AFT), 60 percent of the teachers surveyed said they could not devote enough time to special education students. Forty-seven percent said they couldn't pay enough attention to other students." Constitutional Rights Foundation, Including the Disabled Student, http:/www.crf-usa.org/brown50th/disabeled-students.htm (last visited Dec. 2, 2007).
251. GAO REPORT, supra note 5, at 10 (basing findings on four states surveyed).
252. See Seligmann, supra note 17, at 783-84 (citing the findings of Thomas B. Parrish and Jean Wolman, Trends and New Developments m Special Education Funding: What the States Report, in FUNDING SPECIAL EDUCATION 215 (Thomas B. Parrish et al. eds., 1999)). Federal funding for special education under the IDEA in the 2001-2002 school year was about $8 billion, and state funding for special education under the IDEA in the same year was about $48 billion.
253. GAO REPORT, supra note 5, at 1. Far from funding its intended 40 percent of the cost of special education, the federal government provides an average of just over 12 percent of per-disabled-pupil expenditures; the effect this has in various states is great, as federal funding can range from 3 to 65 percent of funds spent by states on special education. Id.;
254. Seligmann, supra note 17, at 783-84 (citing the findings of Parrish and Wolman, supra, at 215). Because of this insufficient federal contribution to special education, some school districts cut programs benefiting all students in order to fund federally mandated special education.
255. See id. For example, despite the fact that the federal government contributes to the cost of special education and related services, and despite the fact that special education students constitute only 13 percent of all students, special education costs required nearly 25 percent of Boston's general funds for education.
256. Susan Milligan, Jeffords' Special-Ed Plan Revived: As Power Shifts, Democrats Press for Full Funding, BOSTON GLOBE, June 4, 2001, at Al. Although some courts allow some consideration of cost in determining what an appropriate placement is for children under the IDEA's LRE requirement, even those courts that acknowledge the limited resources of the public school system do not allow cost to be a primary consideration. See supra Part II.
257. There are many costs associated with special education and the IDEA's requirements, some of which are less obvious than others. For example, IEP meetings, which occur at least annually for each student with disabilities, require preparation and attendance by both special educators and regular classroom teachers. 20 U. S. C. § 1414. When disputes arise, the costs associated with preparing for and going to trial are significant, from expensive expert and attorney fees to the educator and administrator time spent in preparation for trial; even before a dispute goes to trial, it will have cost the school a large amount of time and money.
258. Herr, supra note 35, at 382.
259. Seligmann, supra note 17, at 783-84. Under the current scheme, if a state or local educational body becomes known for better serving particular students with disabilities, it may become a magnet for such students and their families. Mooney, supra note 13 (describing New Jersey's placement of autistic students in specialized programs leading to a migration of families with autistic children to these areas of New Jersey);
260. see also Weber, supra note 20, at 25 (noting that districts with private schools that are attractive for students with disabilities end up with less funding per disabled pupil than those that do not have such schools).
261. The estimated cost to school districts of resolving conflicts in the 1999-2000 school year, for example, was $90 million. GAO REPORT, supra note 5, at 1 (citing to the findings of the Special Education Expenditure Project).
262. Id. at 8.
263. More mediation sessions were requested than due process hearings in the 1999-2000 school year, but only 13 percent of school districts surveyed reported even having a mediation case during that year. Id. at 15. The number of formal disputes is fairly low, with "[a]bout 5 due process hearings... per 10, 000 students with disabilities," "no more than an estimated 7 mediations per 10, 000 students and about 10 state complaints per 10, 000 students" in 2000. Id. at intro. Currently, about one disabled child out of every 1, 000 nationwide requests a due process hearing under the IDEA.
264. See Seligmann, supra note 17, at 782 (citing Summary of Potential Benefits and Costs, Assistance to States for the Education of Children With Disabilities and the Early Intervention Program for Infants and Toddlers With Disabilities, 64 Fed. Reg. 12, 656, 12, 660-61 (1999)). Although the number of due process hearings being requested has increased, the number of cases going through the due process hearing process has declined.
265. GAO REPORT, supra note 5, at intro. (indicating that the number of due process hearings requested went up from 7, in to 11, 068 in 2000, but that the number of due process hearings carried out went down from 555 in 1996 to 3, 020 in 2000);
266. see also Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036 (5th Cir. 1989) (noting that "[t]he Supreme Court has observed that administrative and judicial review of an IEP is 'ponderous' and usually will not be complete until a year after the IEP has expired" (quoting Sch. Comm. v. Dep't of Educ, 471 U. S. 359, 370 (1985)));
267. Bd. of Educ. v. Rowley, 458 U. S. 176, 186 n. 9 (1982) ("[J]udicial and administrative review of an IEP invariably takes more than nine months[.]");
268. Candace Cortiella, IDEA 2004 Close Up: Resolving Disagreements Between Parents and Schools, SCHWABLEARNING. ORG, Feb. 9, 2006, http://www. schwablearning.org/articles.asp?r=1092 (noting that "[i]ncreases in the number of due process hearings... formed the rationale for the provision of additional, less formal avenues for dispute resolution included in IDEA 2004") - Because mediation is a legislative preference, is less contentious, and is a more economical choice for parents and schools, its increased availability may be a reason that many cases never reach a due process hearing.
269. See 34 C. F. R. § 300. 506 (2006) (mandating that states offer voluntary mediation as an option to aggrieved parties seeking due process hearings). Congress has since required that states offer mediation even if neither party is seeking a due process hearing.
270. See id. § 300.152 (a) (3) (ii). As for cost effectiveness, statistics for one state indicate that mediation is far more economical than due process hearings: The GAO reported that "the Texas [State Education Agency] estimated that over the past decade it had saved about $50 million in attorney fees and related due process hearing expenses by using mediation rather than due process hearings." GAO REPORT, supra note 5, at 18. The number of due process hearings is relatively low, which may reflect parties' efforts to avoid the cost and contentiousness of such hearings. Thousands of cases do get to the hearing stage every year, however, and these hearings can be appealed.
271. See id. at intro.;
272. see also id. at 1 n. 2 (noting that in the 1998-1999 school year, 301 (of about 3315) due process rulings were appealed, bringing about a civil action).
273. See GAO REPORT, supra note 5, at 15. Congress sought to decrease the amount of litigation surrounding the IDEA, as evidenced by its promotion of mediation in the 2004 reauthorization. See Pub. L. No. 108-446, 118 Stat. 2647, 2666 (codified as amended at 20 U. S. C. § 1415 (Supp. 2005)).
274. GAO REPORT, supra note 5, at 1 (reporting that $90 million was spent by state and local educational agencies in the 1999-2000 school year to resolve disputes). With about 6.5 million students with disabilities and twenty-seven complaints per 10, 000 students being carried through formal channels (mediation, due process hearing, and state complaint) per year, about 17, 550 special education disputes are settled formally every year. See id. at 3. The cost of so many disputes is significant; for example, in California in 2003, the average cost per mediation was $1, 800 and per due process hearing was $18, 600. Id. at 18.
275. See id. at 6.
276. See id.
277. State educational agencies report that "disagreements involving potential technical violations of federal or state law or regulations [are] generally pursued through the state complaint procedures." Id. at 10 n. 15 (citing OSEP, Complaint Resolution Procedures under Part B of the IDEA (Part B), Memorandum (July 17, 2000)). Under the IDEA, states are required to make a grievance procedure available to parents who have a complaint either about their own child's situation or about a systemic problem.
278. See 20 U. S. C. § 1415 (a);
279. see also GAO REPORT, supra note 5, at 6-7; id. at 7 tbl.l. This method of dispute resolution is much less costly for the parties than a due process hearing, as the review is done at no cost to the parents or to the local educational agency, and it "primarily consists of staff cost to resolve the complaint." Id. If the parent of a child with disabilities files a written complaint with the state, then the state educational agency investigates by requesting information from or visiting the school district named in the complaint; if the state educational agency finds the school district to be in violation, then it will dictate what the school district must do to be in compliance. Id. at 6. The benefits of this form of dispute resolution are the lower cost and that there is much less required of the parents and school district, but the drawback is that each party has less opportunity to present its side of the story.
280. See GAO REPORT, supra note 5, at 3, 6-7.
281. See 20 U. S. C. §1415 (f);
282. GAO REPORT, supra note 5, at 10 n. 15 (noting that "disagreements involving judgment such as student identification and educational placements were generally resolved through due process hearings or mediations"). For a family to have a court hear its grievances, the dispute will have gone through many stages already, resulting in high costs for both the family and the school district. Before proceeding to court on an IDEA, 42 U. S. C. § 1983, or Section 504 claim, parents must exhaust all administrative remedies under the IDEA.
283. See Frazier v. Fairhaven Sch. Comm., 276 F3d 52 (1st Cir. 2002) (stating that plaintiffs cannot avoid the IDEA'S exhaustion requirements by seeking monetary damages, as this would undermine the IDEA's goal of providing schools with an opportunity to remedy the problems with a child's IEP);
284. Robb v. Bethel Sch. Dist. No. 403, 308 F.3d 1047 (9th Cir. 2002). These administrative remedies include, for example, that the parents file a due process complaint notice to alert the school to the problem that the parents believe exists.
285. See 20 U. S. C. § 1415 (b) (7). Once this complaint has been filed, parents and the relevant members of the IEP team have a meeting with a hearing officer, followed by a period of thirty days in which the school may attempt to remedy the problem identified by the parents.
286. See id. § 1415 (f) (1) (B). Once this period is up, if the parties have not come to an agreement, they continue on to the due process hearing.
287. See id. If either party is not satisfied with the outcome, that party's appeal is reviewed by the state educational agency. Id. § 1415 (g). Finally, if either party appeals the state educational agency's decision, that party may bring a civil action within ninety days of the agency's decision. Id. § 1415 (i) (2) (B).
288. 20 U. S. C. § 1415 (2000 Supp. 2005).
289. 20 U. S. C. § 1415 (f) (B) (Supp. 2005) (requiring parties to discuss the complaint and how it might be resolved, potentially leading to resolution before the administrative hearing is reached). The benefits of mediation include much lower costs and a more timely resolution than a due process hearing.
290. GAO REPORT, supra note 5, at 7 tbl. 1. The inclusion of mediation as a required offering by states has indicated Congress's preference for less contentious, costly, and time-consuming forms of complaint resolution. See 20 U. S. C. § 1415 (e) (2) (D) (making states responsible for covering the costs of voluntary mediation);
291. Kelly, supra note 22, at 34 ("The average time for resolution [at mediation] is 20 to 30 days. In contrast, the time for resolution of issues at due process ranged from 10 to 151 days.").
292. See 20 U. S. C. § 1415 (e) (requiring that states offer voluntary mediation services to settle disputes between parties).
293. GAO REPORT, supra note 5, at intro. (noting both that though the number of due process hearings requested increased from 1996 to 2000, the number of hearings actually carried out went down, and also that the number of due process hearings, state complaints, and mediations per 10, 000 students with disabilities is only five, ten, and seven, respectively).
294. A single due process hearing alone costs a school district about $8, 000 to $12, 000. Schaffer v. Weast, 546 U. S. 49, 59 (2005) (citing to statistics from a Department of Education report). Some cost far more, however, as evidenced by the $2 million payout by the state in Gaskin v. Pennsylvania, 389 F. Supp. 2d 628, 636, 643 (ED. Pa. 2005) (requiring that the state pay the plaintiffs and their attorneys $1, 825, 000 for attorney fees and costs (only 62 percent of the actual attorney fees and costs), and that the state pay the plaintiffs themselves $350, 000).
295. See 20 U. S. C. § 1415 (i) (3) (limiting the recovery of attorney fees in some situations).
296. See 20 U. S. C. § 1415 (i) (2) (C) (iii) (allowing courts to determine what relief is available to parents who prevail).
297. In some cases, schools must pay for private schooling if the public school is unable to provide a FAPE in the LRE, and the public school sometimes is forced to pay for students' services at private schools even if parents placed students there unilaterally. See 20 U. S. C. § 1415 (i) (2) (C) (iii);
298. Florence County Sch. Dist. Four v. Carter, 510 U. S. 7, 9-10 (1993).
299. 546 U. S. 49. In this much-anticipated ruling, the Supreme Court held that "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." Id. at 62. In the past, many courts required the school district to prove that the IEP written for a child was valid, even when the child's parents had brought the suit.
300. See, e.g., Brian S. v. Vance, 86 F. Supp. 2d 538 (D. Md. 2000). Schaffer indicates some deference for the decisions of school site IEP teams, while also acknowledging that parents have been protected by the IDEA's procedural safeguards: Parents must now demonstrate that their child's IEP is not valid, rather than the school district being required to prove the validity of the IEP. 546 U. S. at 60 (noting that "Congress appears to have presumed instead that, if the Act's procedural requirements are respected, parents will prevail when they have legitimate grievances" and that parents have the right to information gathered by the school district and '"to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency'" (quoting 34 C. F. R. § 300.502 (b) (1) (2005)).
301. A single due process hearing alone costs a school district about $8, 000 to $12, 000. Schaffer, 546 U. S. at 59 (citing to statistics from a Department of Education report).
302. See Pub. L No. 101-476, 104 Stat. 1103 (1990). Parents who prevail can recover the costs of private school tuition (in-state and out-of-state) and transportation to those private schools, other compensatory relief, and reasonable attorney fees. § 1415 (i) (2) (C) (iii).
303. See, e.g., Burden, supra note 3 (noting recent issues of "crowding and cases of academic incompatibility and social clashes").
304. Though it does not emphasize students' competing needs, the following excerpt is a reallife example of a classroom in which a teacher's time is strained, limiting her ability to fully meet the needs of the student in question or those of other students. Daniel [a child with autism] has a full-time educational aide, known as a "paraprofessional," to support him during the school day. He also receives help from a speech and language therapist, an occupational therapist, and an adaptive physical education teacher. Daniel's kindergarten teacher, who is in her second year of teaching, has a class of 19 students. Two of her students have significant special needs, while one other is learning English as a second language. She holds a bachelor's degree in education and is certified to teach kindergarten through 5th grade. During her training, she took one class on teaching students with disabilities-Daniel's team of teachers meets once every two weeks for half an hour. During this time they discuss not only Daniel but also the 18 other children they are responsible for. Teachers are given no extra planning time during the day, so this half hour is all the time together most of them can manage. Dybvik, supra note 175, at 47-48.
305. Jameson and Huefner, supra note 1, at 29.
306. In the aggregate, then, students with even slight disabilities who require more teacher attention or alterations in classroom activities could cause major changes in the education of others. With a growing number of students classified as being seriously emotionally disturbed or as having attention deficit hyperactivity disorder (ADHD) or attention deficit disorder (ADD), it is not difficult to imagine a classroom in which some students' behavior would require serious teacher attention to limit the distractions that could interfere with the education of others.
307. See Nat'l Alliance on Mental Illness N. C., Understanding Serious Emotional Disorders in Children, http://www.naminc.org/understanding-children. htm (last visited Oct. 17, 2007) (noting that 3 to 5 percent of kids may suffer from severe emotional disorders);
308. Nat'l Inst, of Mental Health, Attention Deficit Hyperactivity Disorder, http://www.nimh.nih.gov/health/publications/adhd/complete-publication.shtml (last visited Oct. 17, 2007) (estimating that 3 to 5 percent of students have ADHD). Furthermore, because students with more profound disabilities require more significant changes to activities and a larger percentage of teacher time, having multiple students with severe disabilities or one such student along with a few others with less severe but conflicting disabilities could interfere with other students' learning.
309. See 34 C. F. R. § 2001 (2007).
310. See id. § 200.1 (b) (l) (iii) (stating that academic content standards must "[e) ncourage the teaching of advanced skills");
311. Joanne L Huston, Inclusion: A Proposed Remedial Approach Ignores Legal and Educational Issues, 27 J. L and EDUC. describing one of today's educational conflicts as being "between the teaching methods required for the regular education model currently in place large class sizes and lockstep progression through set amounts of material and the teaching methods required for simultaneously meeting the individual, unique needs of each disabled child".
312. For example, imagine a scenario in which eight students with IEPs and/or 504s are already in the class, along with twenty other students. If those eight students require on average about 8 percent of the teacher's time each (40 percent total), then the rest of the students are receiving only 60 percent total, or 3 percent each. When a severely disabled student is added to the class, despite his needing only, say, 20 percent of the teacher's time, the availability of the teacher to other students drops below what they need to succeed and learn. Alternatively, that severely disabled student will not be able to receive the 20 percent of the teacher's attention he or she needs to succeed in this environment. These types of situations exist, but adequate legal solutions so far do not.
313. See Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036, 1046 (5th Or. 1989) (stating that courts should not "place[] too much emphasis on the handicapped student's ability to achieve an educational benefit").
314. See Office of Special Educ. Programs, Topic Briefs, IDEA Reauthorized Statute Alignment With the No Child Left Behind Act, http://www.ed.gov/policy/ speced/guid/idea/tb-nclb-align.pdf (last visited Feb. 10, 2008).
315. See Huston, supra note 214, at 253-54 (noting the incongruent goals of maximizing student potential and modifying curriculum to meet the needs of students who "are unable to perform at the same level as nondisabled students"). Huston notes that when a teacher is also expected to improve test scores, she must make a choice between "allocating more time to the production of expected mean outcomes for the group, which sacrifices gains of the least capable learners" and "allocating more time to the least capable learners to narrow the variance among students, which inevitably sacrifices achievement of the students who learn most easily." Id. at 256 (internal citation omitted).
316. See Oberti v. Bd. of Educ, 995 F.2d 1204, 1214 n. 20 (3d Cir. 1993) (citing to the U. S. Dep't of Educ., Fourteenth Annual Report to Congress on the Implementation of the INDIVIDUALS WITH DISABILITIES ACT (1992), which reported "that nearly two-thirds of the state plans submitted for DOE approval in 1991 under the Act were not in compliance with the mainstreaming requirements of IDEA").
317. Daniel R. R., 874 F.2d at 1048-49 ("The Act does not require regular education instructors... to modify the regular education program beyond recognition. ").
318. See, e.g.. Burden, supra note 3. There are some benefits to the first way of grouping, as grouping may enable teachers of the same disabled students to coordinate. The latter grouping basis may benefit students and teachers by allowing for more uniform modification requirements, which could make inclusion more efficient by decreasing the chances that students with disabilities will have conflicting needs. Of course, the usefulness of grouping students with the same disabilities would vary depending on the type of disability and the similarity of needs that such students might have. Additionally, having multiple students with disabilities in a single classroom, whether the disabilities are similar or not, encourages more variety in teaching approaches. It is arguable that this will make lessons better suited to meet all students' learning needs. On the other hand, it is also arguable that many disabled students require significant extra one-on-one attention from the teacher. These interactions may do little to advance the learning of the other students if they pertain to a simplified or modified lesson that the other students are not following.
319. See id. at 1036. Regardless, having multiple students with disabilities per class, even if their disabilities are similar enough to reduce modification difficulties, means that there is less time per pupil for disabled and nondisabled students alike. Because inclusion is clearly here to stay, educators, parents, and Congress should work out ways to make it more efficient and effective.
320. See 34 C. F. R. § 300. 551 (2006).
321. Oberti, 995 F2d at 1211.
322. See 34 C. F. R. § 300. 551.
323. See, e.g., Daniel R. R., 874 F.2d at 1048-49 ("If a regular education instructor must devote all of her time to one handicapped child, she will be acting as a special education teacher in a regular education classroom.").
324. See Greer v. Rome City Sch. Dist., 950 F.2d 688, 697 (11th Cir. 1991) ("A handicapped child who merely requires more teacher attention than most other children is not likely to be so disruptive as to significantly impair the education of other children. ").
325. Daniel R. R., 874 F.2d at 1049-50 (limiting the appropriateness of inclusion to those situations in which a child does not demand too much of the teacher's attention and noting that if "the handicapped child requires so much of the teacher or the aide's time that the rest of the class suffers, then the balance will tip in favor of placing the child in special education").
326. Id. at 1048-49.
327. See id. at 1051 ("Although regular education instructors must devote extra attention to their handicapped students, we will not require them to do so at the expense of their entire class.").
328. See, e.g., Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).
329. Id.; see also A. W. v. Nw. R-1 Sch. Dist., 813 F.2d 158, 162-63 (8th Cir. 1987) ("The cost to educate [the student with disabilities] in the least restrictive environment was found to be prohibitive because of the effect this disproportionate use of limited resources would have had on other disabled children. ").
330. Roncker, 700 F.2d at 1063 ("Cost is a proper factor to consider since expensive spending on [multiple students with disabilities] deprives other handicapped children. ").
331. While the makeup of the placement would likely change from year to year, the actual makeup of the student's class would be that facing the IEP team from the beginning of the school year. Educators (and parents) would be expected to consider the actual students in various placement options when they select a placement. Under existing law, judges often hear cases after placements occur, but this does not limit judges from making appropriateness determinations based on the facts as they were at the time in dispute. My proposal would simply alter the sorts of facts the IEP would need to consider in selecting the placement from the start, which would, in turn, alter the facts that the judge would consider in this later appropriateness determination.
332. While avoiding conflicts will be possible in many situations, even where it is impossible to avoid conflicts altogether, at least schools would be allowed to consider the needs of those involved when making placements in order to mitigate such conflicts.
333. Such site-based evaluations could be modeled after existing site-based evaluation programs currently used in public K-12 schools, such as the school evaluation for accreditation done by associations such as the Western Association of Schools and Colleges (WASC), Accrediting Commission for Schools. More information is available at WASC Accrediting Commission for Schools, http://www.acswasc.org (last visited Mar. 12, 2008). If parents knew that an outside association evaluated the school's special education placements and programs, they might be reassured about their children's placements such that they would be less likely to dispute appropriate placements. Parents would still retain their right to sue for egregiously inappropriate placements, of course, while oversight agencies could evaluate schools' efforts to appropriately place students with disabilities where the needs of all students can best be met.
334. See Federal Emergency Management Agency (FEMA), Assistance to Firefighters Grant Program, http://www.firegrantsupport.com (last visited Oct. 18, 2007) (allowing individual fire departments to apply for needed assistance).
335. Some states, such as California, make the right to an education fundamental, so education is clearly regarded as important for all children. CAL. CONST., art. IX, § 1.
336. The court in Daniel R. R. noted that a situation could arise in which a child's disruptiveness might "so absorb[] the efforts and energy of the staff as to impair the quality of the entire program for the other children. "Daniel R. R. v. State Bd. of Educ, 874 F.2d 1036, 1043 (5th Cir. 1989).
337. See GAO REPORT, supra note 5, at 15 n. 22 (noting that wealthier parents are more likely to sue, as median household income has a significant relationship to number of disputes); supra note 181.