Examining how the inclusion of disabled students into the general classroom may affect non-disabled classmates.

• Author: Antoinette, Marissa L.

INTRODUCTION

The Individuals with Disabilities Education Act ("IDEA") affords disabled students the right to be educated alongside non-disabled students in the general classroom) Specifically, [section] 1412(5)(b) of Title 20 of the IDEA requires that states receiving educational funding under the IDEA establish "procedures to assure that, to the maximum extent appropriate, children with disabilities are educated with children who are not disabled." (2)

When the inclusion of a disabled student into a general classroom is appropriate, the class will run smoothly and students will not be disadvantaged by the heterogeneity. (3) Nevertheless, the controversy over including disabled students in the general classroom has been hotly debated for the past few years, often from the perspective of the disabled student. (4) But the question of how such inclusion affects non-disabled students, now that the classroom is opened to students with disabilities, remains.

As the IDEA mandates, disabled students must be included into the classroom, "to the maximum extent appropriate." (5) Some argue, however, that the IDEA orders full inclusion; that is, inclusion into the regular classroom of any disabled student, regardless of his situation. (6) Full inclusion requires that all disabled children be placed in the general classroom "for all the school day in every school setting, preschool through high school." (7) Thus, full inclusion calls for the end of special education. (8) Proponents of full inclusion maintain that special education attaches a stigma to disabled students; that heterogeneous mixing in the general classroom will provide diversity; and that full inclusion gives all students the same educational opportunities. (9) In response, opponents of full inclusion chastise as naive the idea that heterogeneous education is enough to rid disabled students of their deeply embedded physical or emotional handicaps.. (10) Opponents argue that certain disabled students need very particular attention, and it is these students whom the IDEA intended to remain in separate, special classrooms. (11)

Part I of this Comment outlines the history of inclusion as established through federal legislation, as well as its gradual implementation in New York City. Part II examines the issues concerning inclusion, looking at the consequences inappropriate inclusion of disabled students may have on the non-disabled ("general") student. Finally, Part III proposes a solution, suggesting that a school district give a disabled student a "three strikes" policy regarding disruptions, after which she may be removed, permanently or temporarily, from the general classroom at the request of a fellow student, parent, or the teacher. This Comment further advises that schools concurrently work to change the perception of special education from a holding station for damaged children to a valuable learning environment for unique students.

1. THE HISTORY BEHIND THE INCLUSION INTIATIVE

1. Foundations for Change

   The last quarter-century has provided significant educational opportunities that the disabled student was previously denied. (12) In the past, educating the disabled student in the public school was not a matter of societal importance. (13) Certain state statutes permitted public schools to exclude disabled children from public schools altogether. (14) Instead of schooling, the severely disabled were sent to institutions. (15) As treatments developed to assist the disabled in living more normal and longer lives, however, disabled students began to look towards integration into the public school system. (16) They found the means to that end in the civil rights movement. (17)

   In the prominent decision Brown v. Board of Education, the United States Supreme Court held that racial segregation in public schools violates the Equal Protection Clause. (18) The Court maintained that the right to an education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms." (19) Advocates of the disabled relied on the Brown Court's determination to argue that disabled students deserve a spot in public schools, too. (20)

   In response to public pressure from Brown and two landmark federal court decisions assuring disabled students access to appropriate public education, (21) Congress enacted the Rehabilitation Act of 1973 (22) and the Education for All Handicapped Children Act ("EAHCA") of 1975. (23) Section 504 of the Rehabilitation Act "prohibit[ed] discrimination against persons with disabilities for all programs receiving federal funding," including public education. (24) The EAHCA, which is now incorporated into the IDEA, set out the substantive rights of disabled children. (25) It required that children with disabilities have access to "a free appropriate public education." (26) Disabled students had won their legal right to public education.

   Eventually, the disabled students' right of admission into public schools expanded into the idea of their admission into the general classroom. Inclusion likely had its historical roots in the 1963 article, "Exceptional Children in the Schools," by Lloyd Dunn, a special education authority. (27) Dunn suggested that special education of children with mild mental retardation was morally and educationally wrong because homogenous grouping damaged these children's self-esteem and caused them to be educationally disadvantaged. (28) Widely citing Dunn and using the EAHCA as a guideline, advocates of inclusion began to fight for the total elimination of special education. (29)

2. The Individuals With Disabilities Education Act

   The IDEA (30) requires any state that receives federal funding for public education to ensure that "a free and appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21." (31) As the disabled student moves through the public education system, she shall have an Individualized Education Program ("IEP") developed and revised according to her educational need for services. (32) Most pertinent to the inclusion debate, the IDEA requires that children with disabilities be educated "to the maximum extent appropriate" with children who are not disabled. (33) The IDEA also requires that each child is educated in the least restrictive environment. (34)

   Proponents of full inclusion maintain that the language of the IDEA mandates full inclusion. (35) They argue that by requiring students with disabilities to be placed in the least restrictive environment, the IDEA requires the elimination of restrictive special education programs. (36) Opponents, on the other hand, argue that the IDEA's limiting phrase, "to the maximum extent appropriate," is recognition that not every disabled child will thrive if included in the regular classroom. (37) They believe the very nature of the IEP requirement proves the IDEA did not intend for a "one-size-fits-all" inclusion policy. (38) Whether it mandates full inclusion or not, the IDEA certainly expresses a strong preference for inclusion: "The removal of children with disabilities from the regular educational environment [may] occur 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." (39)

   Courts (40) have not been of much help creating a clear picture of how far and wide Congress intended inclusion to extend. (41) Several circuits, however, have established factor-based tests for determining whether a disabled child should be included into a regular classroom. In Sacramento City Unified School District, Board of Education v. Rachel H., the Ninth Circuit defined what seems to be the current standard. (42) The court delineated four factors to be considered in deciding whether to include a disabled student in the general classroom: an assessment of the educational benefits of the inclusion; an assessment of the non-academic, social benefits of the inclusion; the financial costs of inclusion (for example, supplemental aides and services); and the effects the disabled student has on the teacher and non-disabled students in the classroom. (43) Harm to the general students is taken into consideration only if the child places an extraordinary burden on the teacher's time and significantly impedes learning by the general students. (44)

   Full inclusion opponents argue that it is unclear exactly when a disabled student becomes an extraordinary burden or significant impediment requiring removal. (45) One challenger suggests that a school should remove, at least temporarily, a disabled student from the general classroom if on more than one occasion the student's disruptions threaten her classmates' learning or safety. (46) Since Rachel H., a school district has a heavy burden of proof to show why a student should be placed in a special education program, rather than in a general classroom. (47) According to the court, only a significant negative impact on the class as a whole by the disabled student will be considered in deciding whether to remove her. (48)

3. The Reaction in New York City Public Schools

   New York City has lagged behind other cities and states in its inclusion efforts. (49) Historically, New York City educated emotionally disturbed and behaviorally challenged students in 600 schools. (50) which essentially became containment facilities for troublesome students. (51) As late as 1973, New York City maintained a "Medical Discharge Register," which listed students who were indefinitely excluded from school because of their disabilities. (52) Many students were never even evaluated for school, or they received in home instruction for lack of appropriate placement. (53) As recently as the 2000-01 school year, fifty-four percent of disabled students in New York City spent more than sixty percent of their time in a separate classroom or facility...