November 01, 2010

By Daniel T.S. Heffernan

One of the off shoots of the Civil Rights Movement of the 1960’s was the push to ensure that children with disabilities be accorded full and meaningful educational opportunities. Massachusetts led the way with its groundbreaking special education law, known as “Chapter 766” and currently embodied in Massachusetts General Laws chapter 71B. On the federal level, The Individuals with Disabilities Education Act (IDEA), 29 U.S.C. §§ 1400-1487, originally enacted as the “Education for All Handicapped Children Act” in 1975 and reauthorized in 2004, is the cornerstone of federal law protecting the educational rights of children with disabilities. On the Civil Rights front, one of the most powerful arguments underpinning challenges to racial segregation in public schools was that the long held policy of “separate but equal” schooling, was, in fact, anything but equal. Similarly, the assumption that children with disabilities should be educated separate from their non-disabled peers was also challenged. IDEA guarantees every child with a disability the right to receive a “free and appropriate education” (FAPE) and to be educated in the “least restrictive environment” (LRE). The benefits of inclusion are myriad and include being accorded meaningful access to more challenging academic curricula, have role models among non-disabled peers, the availability of greater resources, and to better prepare students with and without disabilities to work and live together in their adult lives.

LRE is the principle underpinning the rights of children to be included with their non-disabled peers and not be segregated or marginalized. LRE means that a child with a disability must be educated to the extent possible and appropriate in the least restrictive setting possible. The more separated from non-disabled peers, the more restrictive the setting is considered.

FAPE does not obligate a school to provide the best possible program for the student or special education and related services that will maximize Student’s educational potential. FAPE obligates a school district to accord “meaningful access” to public education that allows a student to make meaningful and “effective progress” commensurate with his/her educational potential.

The law surrounding LRE is clear. When a school district or parents seek placement of a student in a program that is, for any portion, segregated from non-disabled peers, the party seeking that more restrictive environment faces a heavy burden. That party must show that the student cannot receive FAPE and make effective progress in a less restrictive setting.

However, there can be conflicting interests in educating children with Down syndrome with their typical peers versus instruction in segregated settings. There must be, however, a compelling case for that segregation. Will appropriate supports and modifications allow the student to make effective progress in the inclusion environment?

Are there other benefits, such as socialization and peer models, that outweigh any additional benefit from segregating the student? Is some combination possible, where the inclusion is still meaningful? Sometimes a segregated environment is necessary to allow the student to make meaningful progress. Examples of this are most common in the transition years after high school, where students with Down syndrome sometimes attend residential programs that focus in an intensive way on independent living skills, employment, etc.

Some districts simply “don’t do” Down syndrome. This may be a function of their inexperience with having students with Down syndrome in their mainstream programs at certain levels. It may also be a function of a district’s established practice of tracking students with Down syndrome into segregated programs or even sending them out of their home district to a collaborative program (where neighboring towns combine resources and students for certain special education programs) or private school. For parents dissatisfied with these options, there is recourse. As stated above, the law provides a strong presumption that an inclusive environment is the appropriate one and often parents can successfully challenge such segregation. Students previously included with typical students can reject an IEP offering a segregated program and have the student “stay put” in the inclusion program until the district and family agree otherwise or an order from a hearing officer is obtained. Support from independent educational experts that the student with Down syndrome can be well educated in the inclusive environment is key.

To ensure that a family does not win the battle but lose the war in these disputes, it is important that inclusion be done well. Simply having a student with Down syndrome inserted into a regular education setting does not guarantee a beneficial experience for that student. Qualified independent educational experts, who observe the student and the program first hand, can help provide the “how to” for successful inclusion. For inclusion to work, it requires a well thought out plan of modifications and accommodations, as well as resources, possibly including an aide, supplemental tutoring, inclusion facilitator, and related services. With appropriate support, many previously reluctant educators welcome students with Down syndrome and the experience for the student with Down syndrome, the non-disabled peers, and educators, can be a deeply enriching one.

Daniel T.S. Heffernan, Esq. is a partner at Kotin Crabtree and Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education and civil rights matters. From 1995 to 2007, Dan served as president of the board of directors of The Federation For Children with Special Needs. His son, Brian, who is eighteen years old and has Down syndrome, currently attends Massachusetts Bay Community College through the Inclusive Concurrent Enrollment Program (ICE). In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence by the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Dan can be reached at dheffernan@kcslegal.com.

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