Legal Issues

It is important to consider the court cases and laws that have led to and developed the concept of the least restrictive environment for students who are handicapped.

1. Brown vs. Board of Education of Topeka, Kansas. (1954)
This case determined that separate is inherently unequal.

2. Public Law (Federal Law) 94-142
Requires states to establish: "procedures to assure that, to the maximum extent
APPROPRIATE (not necessarily possible) handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped and that special classes, separate schooling, or other removal of handicapped children from the regular education environment occurs only when the nature and severity of the handicap is such that education in the regular classes with the use of supplement aides and services cannot be achieved satisfactorily.

3. P.L. 94-142,
the Education for All Handicapped Children Act [now known as the Individual with Disabilities Education Act (IDEA)] was enacted by Congress on November 29, 1975, making equal educational opportunities for handicapped individuals a right. The Act includes four main goals for the state and local governments:

The guarantee of access to special education programs for handicapped children.
The guarantee of fairness and appropriateness in the decision-making process with regards to special educational programs.
The establishment of concise supervision and auditing requirements/methods with regards to special education at all levels of government.
The support of financial services to state and local governments through federal funding (Faas, 1979, p.14-15).
The law requires Free (at no cost to the family of the student) Appropriate Public Education (FAPE).

There is a two-pronged test created under the Act in order to determine an individual's eligibility to receive benefits.

Prong 1- Discern whether the individual has one or more of the disabilities listed in the definition.

The Act defines 'handicapped children' as "children who are mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, other health impaired, deaf-blind, multi-handicapped, or as having specific learning disabilities, who because of those impairments need special education and related services" (Federal Register, August 23, 1977, Section 121a.5).

Prong 2 - determine whether or not the individual needs special education and related services.

The Act defines 'special education and related services' as "specially designed instruction at no cost to the parents, to meet the unique needs of a handicapped child, including classroom instruction in physical education, home instruction, and
instruction in hospitals and institutions" (Federal Register, August 23, 1977, Section 121a.14). The 'related services' include transportation, speech therapy, audiological or hearing impaired services, psychological services for diagnosis and evaluation, augmentative or assistive devices, counseling and medical services. The Act requires that all handicapped individuals between the ages of 3-21 receive special education services and support.

4. P.L. 94-142's Individualized Education Programs (IEP):
Once an individual is determined handicapped and in need of special education or related service (as defined and determined by the two-prong test above), an Individualized Education Program (IEP) is then specifically created for that
individual alone. Under P.L. 94-142, an Individualized Education Program is required for each handicapped student attending a public or private school requiring special education instruction or related services (Faas, 1979, p.37). The IEP is
designed by the parents/or legal guardians of the child, the child, the teachers, non-handicapped and special, a local education agency representative who is trained in helping the handicapped student meet his/her needs, a member of the team
that previously evaluated the student, and any other people that the parents/or guardians wish to invite. Each IEP must entail the following general items:

• A description of the individual's present level of educational performance.
• A description of the individual's learning style and abilities.
• A general goal of achievement set for the child by the end of the academic school year.
• A statement of short-term objectives to help meet the year goals- these objectives must contain specific goals.
• A statement of all special educational related services/ necessary materials
• specific dates describing exactly when the services will begin and end.
• A statement describing to what extent the child can participate in certain activities/lessons in non-handicapped classroom environments.
• A description of the type of education placement that the student will receive in the mainstreamed classroom.
• A list of the different individuals who will be responsible for implementing and maintaining the special education services.
• A description of the types of evaluations that will be used to assess the achievements of the short-term objectives and long-term goals (Faas, 1979, p.38-39).

Each child's IEP must take into account the learning styles of that child in order to create the most realistic annual and short-term goals. The IEP conference allows the teachers and child to talk. Through this discussion, the non-handicapped and/or special education teacher can gain an indication for the child's ability to process information, and therefore, generally determine what type of instructional learning is necessary.

It is the responsibility of the IEP committee to design the most effective IEP. Therefore, the committee must determine between the child's weaknesses and strengths, as well as motor, social and self-help skills. Through various assessment tests, observations and discussions, this information can be gathered. The desired outcome, is to be able to recognize the child's abilities in the following areas, and understand where improvement can be achieved:

Area 1: Reading Skills- readiness, comprehension, vocabulary, and word attack

Area 2: Arithmetic Skills- addition, subtraction, multiplication, division, place value, money and decimals, measurement, fractions

Area 3: Language Arts Skills- handwriting, spelling, grammar, and speech

Area 4: Perceptual Motor Skills- auditory and visual acuity, memory, sequencing, discrimination, association, eye-hand coordination, fine motor development

Area 5: Gross Motor Skills- large muscle activity, general physical health, body localization, directionality, and laterality

Area 6: Social Skills- social acceptance, responsibility, self-control, self-concepts, general behavior, and self-help skills
(Faas, 1979, p.40-41).

Every IEP must include at least part of the day being spent in a mainstream classroom. This partial mainstreaming is done to:

• remove stigma attached to handicapped students
• improve handicapped students' social relationships and skills
• provide handicapped students with non-handicapped models
• create a richer and more competitive environment
• help handicapped students learn to function in a mainstream society

(Education for the Disabled, 1997, 3-5)

5. New York State Law
A. Article 89 (www.assembly.state. ny.us/laws.html.education)

6. New York State Regulations
A. Part 200 89 (www.assembly.state. ny.us/laws.html.education)
B. Part 100 89 (www.assembly.state. ny.us/laws.html.education)

For more court cases involving inclusion click here:
www.ueac.org/resource/june96/speced.htm
www.uni.edu/coe/inclusion/legal.html