Children’s Disabilities: The Endrew Case and Education of Inclusion

This last Term, the US Supreme Court spoke unanimously through Chief Justice Roberts of the necessity for a disabled child’s individualized education program (IEP) to set forth a robust and challenging endeavor and objective for the child. The IEP is the education “delivery system” for the Individuals with Disabilities Education Act (IDEA), passed 35 years ago. IDEA establishes a substantive right to a free appropriate public education for disabled kids. Chief Justice Roberts stated: “When all is said and done, a student offered an educa­tional program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tanta­mount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’” . The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew v Douglas County School District, 580 US ___ , 137 S Ct. 988, 1001.  (2017).

The Court stated further the critical importance of the IEP and its directives: “The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. This reflects the broad purpose of the IDEA, an “ambitious” piece of legislation enacted “in response to Congress’ perception that a majority of handicapped children in the United States ‘were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to “drop out.”’”. A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.” 137 S Ct at 999. The Court, of course, relied on the seminal case Bd of Education v Rowley, 458 US 176 (1982).

The IEP is developed in a meeting with school teachers and administrators, the child’s parents, and sometimes, if requested, counsel and other advocates representing the child as well as the school district. I have represented a number of kids in these IEP meetings and, as one would expect, some meetings turn out very successful, and some not as much; pre Endrew, some meetings turn out not too differently than Congressional budget deliberations; ie to “kick the can” down the road and agree to take another look in the future—not grab the problem at hand and deal with it constructively. A child can appeal this type of result through set procedures administratively and ultimately to the courts and hopefully after Endrew, the IEP’s themselves will indeed be more robust.

As a “delivery system” of special education services, The IEP document itself, resulting from the meeting, is a complex and detailed form setting out measurable goals for the student, behavior issues, extended year services, and most important, a schedule of the services provided and where they will take place (example in a general ed regular class room, a special ed class room, a home, a gym, a clinic at school etc). The “where” the services take place is so critical because it will distinguish between isolation/segregation and inclusion/integration of individuals with disabilities. At least to me, this is the primary issue in special ed law and social issues; the “where” the services take place hits the very foundation and the goal of special education. There is no question and empirical research supports resoundingly the concept that a regular general classroom is the setting of first choice to teach a disabled student. The Supreme Court in Endrew as much confirmed this fact stating: “IDEA requires that children with disabilities receive education in the regular classroom whenever possible.” 137 S Ct at 999.  The system is not meant to create a second class of citizens starting with their education at an early age.

The law (IDEA) and implementing regulations deal with this whole concept in the phrase “Least Restrictive Environment.” The IEP must schedule services to the student in the least restrictive environment (LRE). There is still a debate among experts as to what that is; removal from the general ed classroom or inclusion. Of course, while much depends on the severity of the disability, there is now a strong push for inclusion such that LRE is the regular education environment for all students; at least it is the starting point for discussion in the IEP meetings. For a kid with behavioral issues for example, the IEP meeting participants should presume at the outset of the meeting the regular classroom will be the place for services, and develop goals in accordance with that placement; only if those goals cannot be accomplished in a regular classroom setting, should an alternative setting be considered. The presumption for all kids should be they will learn in a regular classroom. A very innovative concept is that the regular classroom be taught by co teachers with both general and special ed teachers collaborating inside the classroom. See Causton and MacLeod, All Together Now: Essential Ideas for Co Teaching and Inclusion, Tash Connections, Vol 42, Issue 1 (2017). I think it is a wonderful idea and their thesis is that the classroom driven by co-pilots will direct the greatest number of kids with or without disabilities to a more fulsome, inclusive education. Their excellent article deals with how to do issues and how to interrelate between the two teachers to create the parity necessary for an effective collaboration.

Also published on LinkedIn on 23rd August 2017

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