The disability integration presumption: thirty years later.

• Author: Colker, Ruth

The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of "integration." This Article brings that debate to a new context: the integration presumption under the Individuals with Disabilities Education Act (IDEA). The IDEA has contained an "integration presumption" for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This Article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In addition, this Article demonstrates that Congress created this presumption to mandate the closing of inhumane, disability-only educational institutions but not to require fully inclusive education for all children with disabilities. This Article examines the available empirical data and concludes that such evidence cannot justify a presumption for a fully inclusive educational environment for all children with disabilities. While this Article recognizes that structural remedies, such as an integration presumption, can play an important role in achieving substantive equality, such remedies also need periodic reexamination. Modification of the integration presumption can help it better serve the substantive goal of according an adequate and appropriate education to the full range of children who have disabilities while still protecting disabled children from inhumane, disability-only educational warehouses.

INTRODUCTION

Since the Supreme Court decided Brown v. Board of Education, (1) the African-American civil rights community has gone back and forth on the benefits of integration. In the wake of the Brown decision, it expressed widespread enthusiasm for integration. (2) With the rise of the critical race movement and frustrations with implementation of integration, that enthusiasm waned. (3) More recently, the civil rights pendulum has swung back towards support for integration in celebration of Brown (4) and in response to attacks on affirmative action. (5)

Although the debate about integration in education has historically been a debate that has taken place in the context of race, that discussion also has relevance to the disability context. The disability civil rights movement, however, has not had a sufficient dialogue on the merits of integration. (6) Borrowing from the racial civil rights movement, (7) the disability plaintiffs' bar urged adoption of the "integration presumption." The judiciary (8) and the legislature (9) were quickly receptive to these efforts and adopted the integration presumption. Under the integration presumption, as formulated in 1974, children with disabilities are to be educated with children who are not disabled "to the maximum extent appropriate" unless "the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." (10) The thirtieth anniversary of the enactment of the integration presumption has not led to discussion about whether that strategy has been historically successful, and whether it continues to be the most appropriate educational strategy for all children with disabilities. In this Article, I seek to begin that discussion. (11) I will argue that Congress was correct to enact the integration presumption in 1974 but that the integration presumption, as interpreted by the courts, needs to be modified. (12) I will not argue for the complete dismantling of the integration presumption but will suggest that it needs to be narrowed and reinterpreted so that it achieves its underlying purpose--encouraging school districts to limit their use of disability-only institutions--while also serving the goal of creating individualized educational programs for children with disabilities within the regular public schools. Those individualized programs should not be subject to an integration presumption.

The adoption of the integration presumption in the Education for All Handicapped Children Act of 1975, (13) now called the Individuals with Disabilities Education Act, (14) has had a profound impact on the education of children with disabilities. In the first fifteen years of implementation, "the number of students classified as learning disabled ... and provided with special education services in public schools rose from 797,212 in 1976-77 to 2,214,326 in 1991-92." (15) Further, a presumption that children should be educated in the most integrated setting possible (16)--what is also called "the least restrictive environment" (17)--has led to a sharp increase in the number of children with disabilities who are educated in the regular classroom. The percentage of students with learning disabilities who were educated entirely in regular classrooms increased by nearly twenty percent between 1986 and 1996, while the percentage of students receiving educational services in resource rooms or separate classrooms decreased substantially. (18) In 1996, the U.S. Department of Education estimated that of the 5.5 million children receiving services under the IDEA (approximately fifty-one percent of whom had learning disabilities) about twenty-three percent received their instruction in separate classrooms, thirty percent received education in resource rooms, and ninety-five percent were served in general education schools. (19)

Congress created the integration presumption in 1974 to hasten structural change in the alternatives available to children with disabilities--to hasten the closing of disability-only institutions and the creation of other alternatives for children with disabilities. (20) In 1974, disability-only institutions were prevalent, yet they were rarely serving the needs of children with disabilities attending or living in the institutions. They took children far from their homes, isolating them not simply from typically-developing children but from their own families, and often offered them little or no education. (21) The integration presumption has helped achieve the goal of closing most of those schools; less than five percent of children with disabilities are currently educated in disability-only schools. (22)

The integration presumption, however, has led to more than the closing of disability-only institutions. It has also come to mean that school districts should presumptively favor educating children in the regular public school classroom over other educational configurations within the regular public school, such as pull-out programs, resource rooms, or special education classes. (23) This Article will question this aspect of the integration presumption because, for some children, it hinders the development of an appropriate individualized educational program (IEP) as required by the IDEA. (24) The IEP that is developed must provide "an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class." (25) As interpreted by the courts, this integration presumption tips the scale toward the most integrated environment possible within the public school building, even if the evidence with respect to the individual child might support a less integrated environment. (26) School districts are required to justify separate services for children with disabilities but are not required to justify fully including a child with a disability in the regular classroom.

At first glance, the breadth of the integration presumption is baffling. Children only qualify for assistance under the IDEA if they are not able to attain adequate educational success under the regular education program. (27) Each child needs an IEP because a regular program does not meet their educational needs. Why, then, would we presume that the regular classroom is the best program for them? If anything, we might presume that the regular classroom poses problems for these children such that a school district should have to demonstrate that it has made significant and effective changes to the regular classroom before placing a child with a disability in that environment. As John Holloway has noted: "When we consider that many students were first identified as being learning disabled precisely because of their lack of academic success in general education classrooms, we must ask, Is it educationally reasonable to place these students back in inclusive classrooms?" (28) But the IDEA makes the opposite presumption. It assumes that the regular classroom environment is superior to the other configurations that are often available to children with disabilities--special education, resource rooms, or pull-out programs--because it offers a more integrated education environment.

As early as 1978, some disability rights advocates did note the tension between individualized programs for children with disabilities and the integration presumption. (29) They argued that the integration presumption was a vehicle to hasten structural changes even if that presumption did not serve the best interests of some children. (30) They suggested that the need to close disability-only institutions and create more alternatives for children with disabilities was more important than creating the ideal IEP for each child. (31) But now that disability-only institutions are used infrequently, it is time to refine the integration presumption to help it better achieve an adequate and appropriate education for children with disabilities.

Empirical data should help us decide the proper future direction for disability education policy. (32) Neither the racial integration movement nor the disability integration movement relied heavily on empirical data in formulating their arguments for integration. (33) Looking back on Brown and its aftermath, Judge Robert Carter, one of the plaintiffs' lawyers in Brown, (34) observed that the...