Legal Aspects of Inclusion
Carol Quirk, Ed.D.
Learning Together to Live Together
Today…
• THE LAW: an understanding of the legal aspects of
placement in IDEA and case law
• MAKING CHANGE: systemic change...
Individuals with Disabilities
Education Act (IDEA)
• 1975 Education of All Handicapped Children Act
• 1990 renamed IDEA: t...
Parental Rights
Due Process Rights
Free Appropriate Public
Education (FAPE)
Special Education and
Related Services
 Prov...
Special Education
Specially designed instruction means
adapting, as appropriate to the needs of an eligible
child … the co...
“Least Restrictive
Environment”
• children with disabilities. … are
educated with children who
are nondisabled
• The child...
“Least Restrictive Environment”
• consideration is given to any
potential harmful effect on the
child or on the quality of...
“Least Restrictive Environment”
• Children with disabilities may
be removed…
…only if the nature or severity
of the disabi...
Continuum of Alternative
Placements
Must be available to meet the needs of
students
Includes instruction in:
regular cl...
“Least Restrictive Environment”
• Each public agency shall ensure
that
special classes, separate
schooling or other remova...
Individualized Determination
 Made by a team that includes parents
 Based on IEP, NOT on
 Category or significance of d...
Individualized Determination
 In conformity with LRE provisions
 Is as close as possible to student’s home
 Unless the ...
Sequential Determination
Begin with presumed placement in regular
education classes in the school the student would
attend...
Sequential Determination
• IF the IEP cannot be implemented in the least
restrictive placement,
the team must consider th...
Placement Considerations
34 C.F.R. §300.116
1. The effect of the student’s disability on his or
her involvement in the gen...
Placement Considerations
34 C.F.R. §300.116
2. Provision of services (special
education, related services, and
supplementa...
Placement Considerations
34 C.F.R. §300.116
3. The continuum of placement options must
be considered, including the provis...
Placement Considerations
34 C.F.R. §300.116
4. The consideration of the continuum starts
with placement in regular classes...
Placement Considerations
34 C.F.R. §300.116
5. The consideration of any potential harmful
effect that the placement being ...
Placement Considerations
34 C.F.R. §300.116
6. The student cannot be removed from the
regular education environment based ...
Placement Considerations
34 C.F.R. §300.117
7. The student must be permitted to
participate with typical peers in
nonacade...
Placement Considerations
34 C.F.R. §300.116
8. The team must explain in writing in the IEP
the degree to which the student...
Supplementary Aids and
Services
Aids, services and other supports
provided in regular education classes or other
education...
Supplementary Aids and
Services
To help students with disabilities obtain three benefits:
1. To advance appropriately in a...
Supplementary Aids and
Services
 Teams should consider the full range of
supplementary aids and services.
 The general e...
Supplementary Aids and
Services
Permissive Use of Funds
Federal funds provided pursuant to the IDEA for
special education ...
Supplementary Aids and
Services
Environmental/physical
 Providing preferential seating
 Altering physical arrangement o...
Supplementary Aids and
Services
Instructional
 Modified physical materials
 Visual cues (color, picture, schedule, orga...
Supplementary Aids and
Services
Staff Supports
 Additional adult assistance(identify for what tasks)
 Professional deve...
Supplementary Aids and
Services
Social/Behavioral Supports
 Immediate feedback
 Rest breaks
 Behavioral intervention s...
Supplementary Aids and
Services
Social/Behavioral Supports
 study skills instruction
 visual daily schedule
 Checklist...
Court Cases
Maryland Coalition for Inclusive Education
Roncker v. Walter
Ronker v. Walter, 700 F.2d 1058 (6th Cir. 1983)
Portability/feasibility test:
Can services be brought to...
Roncker v. Walter
The Roncker court stated:
In a case where the segregated facility is
considered superior, the court shou...
Roncker v. Walter
Special education services delivered in self-
contained settings are portable:
◊ They can be brought to ...
Daniel R.R.
Daniel R.R. v. State Board of Educ. 874 F.2d 1036 (5th Cir. 1989).
Questioned whether:
• A student will receiv...
Rachel H.
Sacramento School District v. Rachel H., 14 F. 3d 1398 (9th Cir. 1994)
Balancing Test - Outlined 4 factors:
1. E...
Measuring “LRE”
0
10
20
30
40
50
60
70
80
90
100
Alabama
PuertoRico
NorthDakota
NewHampshire
BIEschools
Nebraska
Vermont
C...
Interpreting “LRE”
Tradition
Experience
Skill
Willingness to change
Special Ed Classes General Ed Classes
“Inclusion” is not “LRE”
Physical Access to
ENVIRONMENTS
Meaningful
ACADEMIC
participation
Positive SOCIAL
RELATIONSHIPS
I...
Carol Quirk, Ed.D.
cquirk@mcie.org
www.mcie.org
Carol Quirk: Legal Aspects of Inclusion
Carol Quirk: Legal Aspects of Inclusion
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Carol Quirk: Legal Aspects of Inclusion

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Presentation by Carol Quirk, Co-Executive Director at Maryland Coalition for Inclusive Education, given during her visit to Yekaterinburg, Russia, sponsored by the US Consulate General in Yekaterinburg.

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  • these factors are found in old (1980s) OCR findings.  Section 504 has LRE obligations and so there were complaint filed on behalf of students covered under OCR And OCR said you can't make placement recommendations based on these findings.
  • extracurricular activities and LRE is found in the definition section of the law too. That is how impt it is. Dept of Ed just released guidance last week on the obligations to SWDs and extracurricular http://www.ed.gov/news/press-releases/us-department-education-clarifies-schools-obligation-provide-equal-opportunity-s
  • Daniel RR are factors/tests adopted by courts to analyze LRE cases. True story: although family lost he was ultimately included.
  • Add names and emails of instructors.
  • Carol Quirk: Legal Aspects of Inclusion

    1. 1. Legal Aspects of Inclusion Carol Quirk, Ed.D. Learning Together to Live Together
    2. 2. Today… • THE LAW: an understanding of the legal aspects of placement in IDEA and case law • MAKING CHANGE: systemic change to inclusive schools and classrooms • STUDENT PLANNING: what it looks like for a student who may take the alternate assessment • Discussion Maryland Coalition for Inclusive Education
    3. 3. Individuals with Disabilities Education Act (IDEA) • 1975 Education of All Handicapped Children Act • 1990 renamed IDEA: the Individuals with Disabilities Education Act • 1997 Amendments to IDEA • 2004 Amendments to IDEA Maryland Coalition for Inclusive Education
    4. 4. Parental Rights Due Process Rights Free Appropriate Public Education (FAPE) Special Education and Related Services  Provided at public expense  To meet the unique needs of student so the student can:  Benefit from education  Progress in general curriculum In the Least Restrictive Environment (LRE) With children who are not disabled – As close to home as possible (neighborhood school) Maryland Coalition for Inclusive Education
    5. 5. Special Education Specially designed instruction means adapting, as appropriate to the needs of an eligible child … the content, methodology, or delivery of instruction WHY? to address the unique needs of this child that result from that child’s disability to ensure access of the child to the general curriculum so that he or she can meet the educational standards that apply to all children. Maryland Coalition for Inclusive Education
    6. 6. “Least Restrictive Environment” • children with disabilities. … are educated with children who are nondisabled • The child's placement – determined at least annually – as close as possible to the child’s home • the child is educated in the school that he or she would attend if nondisabled
    7. 7. “Least Restrictive Environment” • consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs • A child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general curriculum
    8. 8. “Least Restrictive Environment” • Children with disabilities may be removed… …only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
    9. 9. Continuum of Alternative Placements Must be available to meet the needs of students Includes instruction in: regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions Maryland Coalition for Inclusive Education
    10. 10. “Least Restrictive Environment” • Each public agency shall ensure that special classes, separate schooling or other removal of students with disabilities occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
    11. 11. Individualized Determination  Made by a team that includes parents  Based on IEP, NOT on  Category or significance of disability  Availability of services  Configuration of service delivery system  Availability of space  Administrative convenience Maryland Coalition for Inclusive Education
    12. 12. Individualized Determination  In conformity with LRE provisions  Is as close as possible to student’s home  Unless the IEP of the student requires some other arrangement, the student is educated in the school he or she would attend if not disabled (i.e. neighborhood or zoned school). Maryland Coalition for Inclusive Education
    13. 13. Sequential Determination Begin with presumed placement in regular education classes in the school the student would attend if not disabled: “Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.” Maryland Coalition for Inclusive Education
    14. 14. Sequential Determination • IF the IEP cannot be implemented in the least restrictive placement, the team must consider the full range of supplementary aids and services in the LRE, before moving on to a more restrictive setting Maryland Coalition for Inclusive Education
    15. 15. Placement Considerations 34 C.F.R. §300.116 1. The effect of the student’s disability on his or her involvement in the general curriculum. Maryland Coalition for Inclusive Education
    16. 16. Placement Considerations 34 C.F.R. §300.116 2. Provision of services (special education, related services, and supplementary aids and services) so that the student may be involved in and progress in the general curriculum. Maryland Coalition for Inclusive Education
    17. 17. Placement Considerations 34 C.F.R. §300.116 3. The continuum of placement options must be considered, including the provision of such supplementary aides and services as resource room or itinerant instruction provided in conjunction with a regular placement. Maryland Coalition for Inclusive Education
    18. 18. Placement Considerations 34 C.F.R. §300.116 4. The consideration of the continuum starts with placement in regular classes with supplementary aids and services in the school the student would attend if he or she did not have a disability. Maryland Coalition for Inclusive Education
    19. 19. Placement Considerations 34 C.F.R. §300.116 5. The consideration of any potential harmful effect that the placement being considered would have on the student or the quality of services to be provided. Maryland Coalition for Inclusive Education
    20. 20. Placement Considerations 34 C.F.R. §300.116 6. The student cannot be removed from the regular education environment based solely on the student’s need for modifications of the general curriculum. Maryland Coalition for Inclusive Education
    21. 21. Placement Considerations 34 C.F.R. §300.117 7. The student must be permitted to participate with typical peers in nonacademic and extracurricular activities, to the extent appropriate, including meals, recess, athletics, recreational activities, special interest groups of clubs sponsored by the school. Maryland Coalition for Inclusive Education
    22. 22. Placement Considerations 34 C.F.R. §300.116 8. The team must explain in writing in the IEP the degree to which the student will not participate with typical peers. Maryland Coalition for Inclusive Education
    23. 23. Supplementary Aids and Services Aids, services and other supports provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent possible. Maryland Coalition for Inclusive Education
    24. 24. Supplementary Aids and Services To help students with disabilities obtain three benefits: 1. To advance appropriately in attaining IEP goals 2. To be involved in and to progress in the general curriculum and to participate in extracurricular and non-academic activities. 3. To be educated and participate with other students with disabilities and those without disabilities. Maryland Coalition for Inclusive Education
    25. 25. Supplementary Aids and Services  Teams should consider the full range of supplementary aids and services.  The general education teacher assists the IEP team in determining: • the supplementary aids and services • program modifications • supports for school personnel that will be provided for the student Maryland Coalition for Inclusive Education 27
    26. 26. Supplementary Aids and Services Permissive Use of Funds Federal funds provided pursuant to the IDEA for special education and related services and supplementary aids and services provided in a regular education class to a student with a disability may benefit one or more students without disabilities. Maryland Coalition for Inclusive Education
    27. 27. Supplementary Aids and Services Environmental/physical  Providing preferential seating  Altering physical arrangement of classroom  Reducing distractions  Providing quiet corner or study carrel  Modifying equipment, adapting writing utensils  Assistance in maintaining uncluttered space  Providing space for movement/breaks Maryland Coalition for Inclusive Education
    28. 28. Supplementary Aids and Services Instructional  Modified physical materials  Visual cues (color, picture, schedule, organizational chart, etc.)  Alternate assignments  Pre-teach vocabulary  Providing literature in alternate modes (computerized, different reading level, etc.)  Peer partners to model Maryland Coalition for Inclusive Education
    29. 29. Supplementary Aids and Services Staff Supports  Additional adult assistance(identify for what tasks)  Professional development on use of equipment, methods, impact of disability, etc.  Collaborative planning time  Coaching from specialist Maryland Coalition for Inclusive Education
    30. 30. Supplementary Aids and Services Social/Behavioral Supports  Immediate feedback  Rest breaks  Behavioral intervention strategies  Positive behavior supports plan  Varied reinforcement system  Circle of friends  Peer buddies  Counseling Maryland Coalition for Inclusive Education
    31. 31. Supplementary Aids and Services Social/Behavioral Supports  study skills instruction  visual daily schedule  Checklists  notice or warning before change in activities  daily check-in with case manager/mentor  verbal/visual cues regarding transitions, directions staying on task Maryland Coalition for Inclusive Education
    32. 32. Court Cases Maryland Coalition for Inclusive Education
    33. 33. Roncker v. Walter Ronker v. Walter, 700 F.2d 1058 (6th Cir. 1983) Portability/feasibility test: Can services be brought to the child instead of moving the child to a school where services already exist? Maryland Coalition for Inclusive Education
    34. 34. Roncker v. Walter The Roncker court stated: In a case where the segregated facility is considered superior, the court should determine whether the services that make that placement superior could be feasibly provided in a non-segregated setting. If they can, placement in the segregated facility would be inappropriate under the Act. Id. at 1063. Maryland Coalition for Inclusive Education
    35. 35. Roncker v. Walter Special education services delivered in self- contained settings are portable: ◊ They can be brought to the child rather than removing the child from an integrated setting in order to receive the services ◊ Services and the setting in which those services are delivered are two separate issues Maryland Coalition for Inclusive Education
    36. 36. Daniel R.R. Daniel R.R. v. State Board of Educ. 874 F.2d 1036 (5th Cir. 1989). Questioned whether: • A student will receive educational benefit from mainstreaming • Any marginal benefit derived from mainstreaming is outweighed by the benefits likely to be received in a separate facility • The student is a disruptive force in the classroom Maryland Coalition for Inclusive Education
    37. 37. Rachel H. Sacramento School District v. Rachel H., 14 F. 3d 1398 (9th Cir. 1994) Balancing Test - Outlined 4 factors: 1. Educational benefits available in the general education classroom with supplementary aids and services; 2. The non academic benefits of interacting with peers without disabilities; 3. The impact of the student with a disability on the children and teacher in the classroom; 4. The cost of the supplementary aids and services required to mainstream the student Maryland Coalition for Inclusive Education
    38. 38. Measuring “LRE” 0 10 20 30 40 50 60 70 80 90 100 Alabama PuertoRico NorthDakota NewHampshire BIEschools Nebraska Vermont Colorado RhodeIsland Kentucky Connecticut Oregon Indiana Florida SouthDakota WestVirginia Texas Mississippi Maryland Kansas NorthCarolina Nevada Iowa Tennessee Georgia Oklahoma Idaho Michigan Minnesota Louisiana Pennsylvania Delaware NationalAve. Arizona Alaska Missouri Massachusetts SouthCarolina Ohio Wisconsin NewYork Maine Virginia Utah Arkansas NewMexico California Illinois Montana Washington NewJersey DistrictofColumbia Hawaii PercentofStudentswithDisabilities Placement in General Education 80% or more of the time
    39. 39. Interpreting “LRE” Tradition Experience Skill Willingness to change Special Ed Classes General Ed Classes
    40. 40. “Inclusion” is not “LRE” Physical Access to ENVIRONMENTS Meaningful ACADEMIC participation Positive SOCIAL RELATIONSHIPS INCLUSIO N
    41. 41. Carol Quirk, Ed.D. cquirk@mcie.org www.mcie.org

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