Last week 15-year-old Luka won a years long fight for inclusion in his Tennessee public school. The Sixth Circuit Court of Appeals ruled that Luka’s right to a Free and Appropriate Education in the Least Restrictive Environment was violated when Hamilton County School District attempted to segregate Luka in a separate school for part of his school day. Luka’s family eventually decided to place him in a Montessori School, and the federal court also ruled the district must pay the family for the private school tuition.
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The decision is a watershed moment for students with Down syndrome in particular seeking to have an inclusive educational experience. Luka’s mother, Deborah Duncan, now wants other families to use the court decision to fight for inclusion at their child’s next IEP meeting.
Below are tips from Deborah Duncan on how to use the case at your next IEP meeting:
“L.H. v HCDE reaffirms the Individuals with Disabilities Education Act’s (IDEA) strong preference for mainstreaming: “To the maximum extent appropriate, children with disabilities, . . . [must be] educated with children who are not disabled,” and separated “only when 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.” § 1412(a)(5)(A). The ruling of the U.S. Sixth Circuit Court of Appeals is the “law of the land” in Tennessee, Kentucky, Ohio and Michigan and is “persuasive authority” to the other circuit courts covering all other states.
Here are the important points affirmed in this case that can apply in any IEP discussion:
- Parental participation in the process of developing the student’s IEP “must be more than a mere form; it must be meaningful.” Parents’ views of the appropriate educational supports and services must be reflected in the IEP.
- A free appropriate public education (FAPE) has two requirements that are relevant here: the school must prepare an “individualized education program” (IEP) for the disabled student, § 1414(d)(1)(A); and that IEP must provide the FAPE so as to educate the disabled student in the “least restrictive environment” (LRE) possible, § 1412(a)(1), (5).
- Students with disabilities are not required to “keep up” (work at the same pace or on the same materials) with non-disabled peers in order to remain in the regular education classroom.
“The three-judge panel of the Sixth Circuit affirmed: “What the IDEA implies, the case law makes explicit: a child need not master the general-education curriculum for mainstreaming to remain a viable option. Rather, the appropriate yardstick is whether the child, with appropriate supplemental aids and services, can make progress toward the [] IEP[’s] goals in the regular education setting.”
“. . . a placement which m[ight] be considered better for academic reasons m[ight] not be appropriate because of the failure to provide for mainstreaming.”
- “Special education” is supplemental supports and services that allow students with disabilities to access the general education curriculum. “Special education” is not simply an alternative to the general education curriculum. The use of a peer-reviewed curriculum and instructional approaches is required by the IDEA.
“The new curriculum [used in the segregated setting] was different qualitatively as well as quantitatively . . . The Unique Learning System (ULS) program follows Common CORE standards but it is not peer-reviewed, as the IDEA requires. . .”
- “Special education” is not a separate location, and schools that require students to attend a separate location to receive special education services may be violating the IDEA.
“The LRE is a non-academic restriction or control on the IEP . . . that facilitates the IDEA’s strong “preference for ‘mainstreaming’ handicapped children,” Rowley, 458 U.S. at 181 n.4. “To the maximum extent appropriate, children with disabilities, . . . [must be] educated with children who are not disabled,” and separated “only when 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.” § 1412(a)(5)(A).”
- The segregated Comprehensive Development Classroom (CDC) special education setting was found to be specifically “non-mainstreaming” (“intentional segregation”), lacked a curriculum that was peer-reviewed, “set very low educational expectations,” was not tied to any state standards, “provided no report cards or homework, and it had certain teachers in uncertified roles.”
- Parents “surely know the student the best, regardless of any expertise.”
“If the law were that a court must defer to the opinions of [the teachers and staff] who spend the most time with the student and presumably know him best, then there would be no place for experts. Moreover, parents could never prevail because the student’s teachers will always spend more time with the student or know the student better than the parents’ hired experts. On the other hand, the parents spend more time with the student and know the student better than any teacher. Taking HCDE’s argument to this ultimate end, the district court would actually defer to the student’s parents, who surely know the student the best, regardless of any expertise.”
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If you find yourself in an IEP meeting with school system administrators who are unfamiliar with the requirements of the IDEA and its supporting case law, it may be best to suspend your IEP meeting and request a meeting with the director of special/exceptional education for your school district along with your child’s school principal to discuss your common understanding of the requirements of the IDEA. If you find that they have a different interpretation of the law, you may refer them to the state department of education to confirm its understanding. If you still cannot secure a common understanding, contact a local special education advocacy center or a special education attorney. (See the Council of Parent Advocates and Attorneys (COPAA) website.) Having a common understanding of the basic rights and responsibilities of all parties in the IEP process will result in a smooth IEP process and a successful educational program for your child.”
Read the full decision from the Sixth Circuit here.
Have you or someone you know had to fight a similar battle for inclusion? Are you frustrated that we’re still fighting this fight more than 30 years after the Individuals with Disabilities Education Act (IDEA) was passed? Tell me about it below.
Thank you for sharing this. I am only two years into working with IEP’s and special education resources for a family member. I was so excited to find out our school district had integrated preschool programs in place so he could be with neurotypical peers, only to learn that after preschool, he would be required to go into a resource room in an entirely different building than he has been in for the past two years. I am considering placing him in a private school for Autism, but knowing this information, gives me great pleasure in knowing if he meets the requirements, he could be placed in a standard classroom with his IEP. Thank you so much for sharing again!
I’m glad you found this helpful! Good luck and remember the Continuum of Placement under federal and state law starts in General Education classroom.
Would anyone happen to know of a good argument case involving a child that requires skilled nursing at home, is in the special needs program at school, but the district is not wanting to allow his home health nurse into the classroom for his health needs because of a district, not state, policy put in place by that school district?
My child was fully included, with special ed. pullouts, in elementary and was seen as a ‘regular’ kid by her peers. In middle, and now high school, she has been more and more segregated into special education classrooms. The school system itself creates the perception that these kids are somehow ‘other’ and yet congratulates themselves that they are teaching them ‘life skills’ that apparently (according to them) cannot be taught in a regular classroom. They even argue against inclusion by believing that the typical kids don’t have time to socialize with our kids because they are so focused on their own academics. They don’t see that the attitude of inclusion is created by the teachers, and the students will buy in if it’s modeled for them. Of course, when parents push for inclusion and it fails because the teacher doesn’t want to be bothered and the work is not modified, then they use that failure to confirm that inclusion does not work rather than see it as an opportunity to make change for the better. The patronizing “but we include them in specials and lunch” angers me because the kids don’t have the time to truly build relationships with their typical peers in that amount of time. Without those relationships they are still left out at lunch and in the one or two specials they may have. Our children are marginalized and so are we because we are not the sort of ‘involved parent’ that the school system wants. IDEA says parents should be meaningful participants in the IEP process but the attitude is that we should just send our kids off to school and let the so called professionals make all the decisions. For once I would like to feel that I am seen as a partner in the process and not a nuisance….that we have a shared vision for my daughter’s future and how to help her get there.
Hi Marjorie! Inclusion is a constant struggle, even in the schools that somewhat get it. It’s draining, but I always have to remind myself that these teachers and administrators won’t be dealing with my son a decade from now; I will! I am the best suited expert of my son. I remind our IEP team of this often. It’s frustrating, but keep up the hard work!