Rethinking special education's "least restrictive environment" requirement.

• Author: Carson, Cari

The federal Individuals with Disabilities Education Act promotes the education of students with disabilities together with their nondisabled peers, requiring education in the "least restrictive environment" ("LRE"). This requirement has long been subject to competing interpretations. This Note contends that the dominant interpretation--requiring education in the least restrictive environment available--is deficient and allows students to be placed in unnecessarily restrictive settings. Drawing from child mental health law, this Note proposes an alternative LRE approach that requires education in the least restrictive environment needed and argues that this alternative approach is a better reading of the law.

INTRODUCTION I. A Brief Overview of the LRE Requirement A. Historical Rationale and Present Arguments for Greater Integration. B. Fundamentals of the LRE Mandate and Related Parental Rights II. A PROBLEMATIC PREFERENCE FOR THE "LEAST RESTRICTIVE Environment Available" Approach A. Textual Foundations of the "Least Restrictive Environment Available" Approach B. Special Education Case Law Favors the "Availability" Inquiry C. Shortcomings of the Availability Approach III. ILLUSTRATING SHORTCOMINGS OF THE "LEAST RESTRICTIVE ENVIRONMENT AVAILABLE" APPROACH IN HEARING OFFICER DECISIONS A. Rationale for Choosing D.C. as the Jurisdiction of Analysis B. Evidence and Consequences of Use of the "Availability" Approach in D.C. Hearing Officer Decisions IV. THE "LEAST RESTRICTIVE ENVIRONMENT NEEDED" INQUIRY AS AN ALTERNATIVE, STRONGER APPROACH A. Lessons Learned from Child Mental Health Law's Approach to Integration B. Applying a Necessity Inquiry to LRE in Special Education Law V. BENEFITS AND IMPLEMENTATION CHALLENGES OF THE NECESSITY APPROACH A. Legal and Policy Arguments for Applying the Necessity Approach to Special Education's LRE Requirement B. Addressing Legal and Practical Challenges CONCLUSION INTRODUCTION

The following hypothetical is representative of common types of cases that come before special education legal decisionmakers:

Tricia, a teenage girl with reading difficulties and a tendency to act out, has languished in a failing public school since kindergarten. After identifying Tricia as special education eligible in the sixth grade, the school provides her with some--albeit sparse--special education supports. She makes very little reading progress over several years and her behavior deteriorates. A private educational evaluation notes that Tricia requires a structured reading program with a student-to-teacher ratio of not more than six-to-one. Tricia's mother and an attorney file a complaint with the school district and request a legal due process hearing. The hearing officer finds the district in violation of federal special education law; as a remedy, the hearing officer orders the district to pay for Tricia to go to a private special education-only day school because the district fails to show that it has programs that can meet Tricia's needs. The private day school, on the other hand, shows that it can provide the required services, though the evidence on the record does not speak to the academic effectiveness of the private school. Tricia will have no interaction with nondisabled students at the new school.

The idea of integration is central to U.S. disability law, including special education law. (1) Integration and inclusion refer to the participation of people with disabilities in activities with nondisabled individuals; in special education law, integration may be defined as the education of students with disabilities together with their nondisabled peers. (2) The centerpiece of federal special education law--the Individuals with Disabilities Education Act ("IDEA")--requires that students with disabilities be educated in the most integrated, least restrictive environment for those students. (3)

To meet the varying needs of students with a wide range of disabilities, special education services are offered on a continuum of placements, ranging from the least restrictive setting--a general education classroom--to the most restrictive placements in separate special education schools and institutions. (4) Tricia's placement change from a public school setting to a private special education-only school ("private placement") thus increases the restrictiveness of her placement and decreases her opportunity for integration in school. In the private placement, she will have fewer opportunities to interact with her nondisabled peers than she would have in a public school's special education program. In the most restrictive settings such as separate schools, students do not have the opportunity to interact with nondisabled peers in elective classes, extracurricular activities, or at lunch, for example. (5)

Despite the requirement promoting integration, the hypothetical illustrates that integration takes a backseat to providing appropriate services at times. When this happens, a student with a disability may be harmed by not receiving the benefits of greater integration noted in the IDEA. (6) But the framework of America's special education system presents a legal complexity by allowing for such a private placement result: if a student like Tricia has needs that could be met with additional or improved services in a regular school facility, the IDEA'S LRE requirement is not met by the hearing officer's order even though the special education legal system allows for the officer's order.

Whether the hypothetical hearing officer acted in compliance with the IDEA depends on one's interpretation of the LRE requirement. Put simply, the LRE requirement can be interpreted in two different ways: to mandate a special education student's placement in the least restrictive environment needed to meet the student's needs, or in the least restrictive environment available to meet the student's needs. In this Note, "needed" refers to the services necessary to specifically address a particular disability and provide a free appropriate public education ("FAPE"), the legally required standard of educational quality in special education law. It does not refer to what a student with a disability needs to fully thrive in his or her education. Additionally, in this Note, "available" refers to services currently in place at a school or in a district.

Legal and educational authorities have interpreted the IDEA'S LRE requirement along a spectrum between these poles and are deeply divided over its proper application. (7) Historically, courts have favored the "least restrictive environment available" approach or have minimized the LRE requirement in special education disputes that implicate private special education-only school placement. (8) The "least restrictive environment available," however, may be more restrictive than a student needs; this may be true where a student can progress in a less restrictive setting with added supports, but the added supports are unavailable. The "least restrictive environment needed" approach is not satisfied with such an outcome. It recognizes that FAPE and LRE are not mutually exclusive requirements; both can be accomplished. This "necessity" approach requires additional efforts at integrating disabled students into settings with nondisabled students, potentially through added academic and behavioral supports. Because the "least restrictive environment needed" inquiry thus demands equally or more integrated placements than the "least restrictive environment available" approach, this Note contends that the necessity-based approach is the stronger interpretation of the LRE requirement.

The legal system has remained surprisingly passive in analyzing or addressing the discrepancies in educational institutions' and legal decisionmakers' approaches to the LRE requirement and their compliance with the IDEA. A critical framework analyzing the competing interpretations of the LRE requirement does not exist. (9)

While the number of students placed in private special education-only schools by hearing officers is small nationally, the implications of these competing interpretations are far-reaching. (10) How LRE considerations should factor into placement choices affects special education decisionmaking, even apart from due process hearings and placements in private special education-only schools. The approach to the LRE requirement also affects the allocation of resources in special education. Issues of how special education is delivered, the quality of that education, and which students benefit from certain services are all implicated. And from the standpoint of statutory interpretation, the internal consistency of the IDEA is in balance.

This Note asserts that a necessity-based interpretation of the LRE requirement better serves students with disabilities and more closely aligns with the IDEA than an availability-based approach. Part I provides a brief background of the LRE requirement and the benefits of integration. Part II

argues that the "least restrictive environment available" interpretation, while legally viable and often followed, is a problematic approach to the IDEA'S LRE requirement. Part III analyzes hearing officer decisions from one jurisdiction, the District of Columbia, and illustrates how the "least restrictive environment available" approach may result in unnecessarily restrictive placements, depriving students of the benefits of greater integration. Part IV asserts that the LRE requirement may be strengthened by clearly incorporating the "least restrictive environment needed" approach of child mental health law into special education law. Part V identifies and addresses the benefits and practical and legal challenges to the proposed solution.

1. A BRIEF OVERVIEW OF THE LRE REQUIREMENT

   The U.S. special education system is governed primarily by the IDEA" and its implementing regulations. (12) Both include an LRE requirement. (13) Section I.A provides the rationale for and...