Finding the Least Restrictive Environment for Preschoolers Under the Idea: an Analysis and Proposed Framework

JurisdictionUnited States,Federal
CitationVol. 85 No. 1
Publication year2021


Theresa M. DeMonte

Abstract: Under the Individuals with Disabilities Education Act, both school- and preschool-age children who qualify for special education services are entitled to education in the least restrictive environments appropriate to their needs. For school-age children, the presumptive least restrictive environment is the regular class where their nondisabled peers participate. By contrast, defining an analogous environment for preschool children is difficult, because public schools rarely provide preschool for children without disabilities. This Comment argues that the Act's language, principles, purposes, and implementing regulations suggest that the settings where a preschool child's nondisabled peers learn should be identified as that child's presumptive least restrictive environment. Examples of such settings may include the home, community, and regular preschool. This Comment then provides an analytical framework that courts can use when determining the least restrictive environment for a preschool child.


Nate is an adorable three-year-old whose favorite activities at preschool include singing at circle time, digging in the sand table, and playing restaurant in the pretend kitchen.(fn1) Though a casual observer might not immediately notice, Nate displays the classic symptoms of autism, including repetitive behaviors, restricted interests, impaired social skills, and disordered communication. Despite his significant impairments, Nate has been successfully participating in regular(fn2) preschool with the help of a trained aide who prompts him to respond appropriately to his teacher and peers.

Having heard that preschoolers with disabilities are entitled to educational services under federal law, Nate's parents approach the local school district. After conducting an evaluation, the district tells Nate's parents that he qualifies for services and may attend the district's autism preschool program for two hours per day. The classroom consists of six children, all diagnosed with autism, taught by one teacher and two aides. Nate's parents urge the school district to consider keeping Nate in a preschool where he could participate with nondisabled children. The school district administration informs the parents that they only fund public programs. Because the district does not provide regular preschools for nondisabled children, Nate's parents are told they will either need to accept the autism preschool program or continue to fund the private program themselves.

The Individuals with Disabilities Education Act (IDEA) entitles children with disabilities, including preschool children such as Nate, to individualized educations in the least restrictive environment (LRE) appropriate to their needs.(fn3) Despite this requirement, parents of preschool children sometimes face obstacles with its implementation and find themselves torn between educating their child in a regular preschool or community setting at their own expense or foregoing a placement alongside nondisabled peers in order to secure free special education services.(fn4) The IDEA presumes that children will be educated in regular educational environments, unless their individual needs dictate that a special class or school is required.(fn5) Therefore, this Comment will refer to regular educational settings as the "presumptive" least restrictive environment. The presumptive least restrictive environment for school-age children is the regular class where nondisabled children are educated, and moving a child to a special setting requires justification based on the child's needs.(fn6) However, schools are often uncertain which environment constitutes the presumptive least restrictive environment for preschoolers-in part because there are often no generally available public education settings for nondisabled preschool children.(fn7)

This uncertainty about how the LRE provisions apply to preschoolers is ripe for clarification, and the critical importance of early intervention for disabled children(fn8) makes the LRE issue particularly high-stakes for this population. The Supreme Court has never decided an LRE case- much less one applying the requirement to preschoolers-and lower federal courts diverge on what constitutes the presumptive least restrictive environment for preschoolers.(fn9) Although legal journals provide a plethora of articles focusing on how the LRE requirement applies to older children,(fn10) they are short on scholarship dealing with these requirements as they apply to preschoolers.(fn11) This Comment helps resolve this uncertainty by explaining how the statutory and regulatory provisions of the IDEA apply to preschoolers.

Part I presents the history of the IDEA as it pertains to preschool students with disabilities, and Part II explores the background of its key provisions. Part III summarizes federal cases where preschool placement was at issue and shows that courts have applied differing analyses to the preschool LRE context. Part IV draws on the text of the IDEA, its purposes, and its history to propose a framework courts should apply when the least restrictive environment for a preschool child is at issue. Courts should look first to the settings that the child's same-aged peers are learning in to determine the child's presumptive least restrictive environment. Second, they should ask whether the child can be successfully educated in these settings. This approach best implements the principles of the IDEA and comports with Congress's preference that children with disabilities receive their educations in regular settings.


The IDEA had its genesis in a movement of parents and educators fighting to secure public education for children with disabilities. These efforts spanned the twentieth century(fn12) and gained inspiration from both the broader civil rights movement(fn13) and the belief that inclusion in public education could help children with disabilities gain independence.(fn14) As momentum grew for nationwide change, Congress responded by enacting legislation that conditioned funding to the states on whether they provided children with disabilities access to appropriate public education.(fn15) Later, as research increasingly suggested that earlier intervention led to better outcomes, the right-to-education movement sought to improve services to preschoolers.(fn16)

A. By Enacting Comprehensive Special Education Reforms, Congress Recognized Two Principles: The Right to Educational Opportunity and the Right to Integration

As recently as the mid-1970s, schools across the nation routinely excluded millions of children with disabilities or warehoused them in inadequate special education programs.(fn17) Although it took many years for this issue to gain national prominence, local efforts addressing the problem began as early as the end of the nineteenth century, when some cities established special classes for mildly impaired children.(fn18) Heartened by the possibilities such schools offered, parents of children with disabilities formed local grassroots organizations and advocated for their children's right to education.(fn19)

These groups' tireless advocacy bore fruit: their efforts persuaded many legislators and school boards that the benefits of educating disabled children were worth the costs.(fn20) California became the first state to mandate special education services for cognitively impaired children, and several other states followed suit.(fn21)

As their children began receiving long-sought special education, parents began to view the frequent segregation of their children from regular classrooms as unjust.(fn22) The Court's landmark decision in Brown v. Board of Education,(fn23) holding that separate education based on race is inherently unequal,(fn24) resonated with many advocates for children with disabilities.(fn25) They adopted the rhetoric of the civil rights movement and looked to the courts to vindicate these children's rights.(fn26)

Across the country, advocates filed lawsuits asserting that schools were excluding children with disabilities from public education in violation of the Due Process and Equal Protection Clauses of the Constitution.(fn27) In many cases, the decisions confirmed that children with disabilities were entitled to educations suited to their needs.(fn28) States without laws addressing the education of disabled children responded by passing laws entitling children with disabilities to appropriate educations.(fn29)

By 1975, all but two states had enacted such legislation.(fn30) Despite these laws, many states were unable to accommodate all children, and claimed that lack of funds hindered their compliance.(fn31) With millions of children in limbo-unable to receive the services to which they were legally entitled-Congress took action. In 1975, it enacted a comprehensive national policy called the Education for All Handicapped Children Act (EAHCA).(fn32) This law amended the Education of the Handicapped Act, and conditioned federal funds on the provision of free appropriate public educations to children with disabilities.(fn33) By creating incentives for the states to adopt federal policy, Congress took a...

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