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CHAPTER 3

REFLECTIONS ON THE CONCEPT

OF THE LEAST RESTRICTIVE

ENVIRONMENT IN SPECIAL

EDUCATION

Jean B. Crockett

ABSTRACT

The Least Restrictive Environment (LRE) requirements of the Individuals with Disabilities Education Act address factors to consider in educating students with and without disabilities together to the maxi- mum extent appropriate. This chapter is designed to examine the origins and evolving interpretations of the LRE concept in special education policy and practice. Discussion traces the evolution of the concept as a legal principle, and reviews its application to educational strategies for students with learning and behavioral disabilities in contemporary schools. In conclusion, the future of the LRE concept is addressed in light of competing policies promoting presumptive inclusive education, and publicly funded school choice programs promoting greater involvement of parents in choosing where their children with and without disabilities should be educated.

Special Education Past, Present, and Future: Perspectives from the Field

Advances in Learning and Behavioral Disabilities, Volume 27, 39�61 Copyright r 2014 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 0735-004X/doi:10.1108/S0735-004X20140000027004

Landrum, T. J., Cook, B. G., & Tankersley, M. G. (Eds.). (2014). Special education past, present, and future : Perspectives from the field. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from ashford-ebooks on 2020-08-10 20:42:20.

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http://dx.doi.org/10.1108/S0735-004X20140000027004

The whole purpose of our school, as I and my associates envisioned it, was to be an incen-

tive for living; a school where the isolated child would be isolated no longer, where the

social, recreational, educational competition, the give and take of life, would be available

as a part of natural, everyday living; participation in the normal world, to the fullest mea-

sure possible, would become the accepted norm � including the attitudes of the public, even the staring, the thoughtless remark, all of it faced squarely, understood � this was the educational objective of our proposed Human Resources School. (Viscardi 1964, p. 88)

The school envisioned by Henry Viscardi and his associates on a spring evening in 1961 grew out of their mutually painful memories as “children of the shadows,” homebound children whose only connection to schooling was instruction provided by itinerant teachers. “The home- bound child has it the worst. How can he or she learn to live, learn to face anything, locked up like a criminal in his own home!” recalled one associate who had contracted polio as a child (Viscardi, 1964, p. 17). Human Resources School opened its doors in 1967 to youth with physi- cal disabilities denied access to a public school education in their local communities. With the passage of Public Law 94-142, the Education for All Handicapped Children Act (EAHCA) in 1975 the school was funded to meet the law’s least restrictive environment (LRE) provisions ensuring the availability of an array of instructional placements designed to pro- vide a free appropriate public education (FAPE) to students with wide- ranging needs. Specifically, the LRE provisions of federal law stipulate the following:

To the maximum extent appropriate, children with disabilities, including children in

public or private institutions or other care facilities, are educated with children who are

not disabled, and that special classes, separate schooling, or other removal of children

with disabilities from the regular educational environment occurs only when the nature

or severity of the disability is such that education in regular classes with the use of sup-

plementary aids and services cannot be achieved satisfactorily. (EAHCA, 1975, sec.

1412(5)(B))

For more than 50 years, the school Dr. Viscardi envisioned has provided parents with an alternative and school districts with a resource when they are unable to meet a student’s educational needs appropriately. From 1986 to 1994 when I served as one of the school’s administrators, approximately 350 students from preschool through grade 12 were enrolled in this regio- nal, academic day school. Currently, approximately 175 students are enrolled with highly intensive health and technological support needs who often require life-sustaining medical treatment throughout the day and who might otherwise need to receive instruction in their homes or a hospital.

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The school’s declining enrollments are consistent with national trends indi- cating the percentage of students educated in special schools and classes declined by 25% from 1990 to 2007, while at the same time the percentage of students with disabilities placed in general education settings for most of the school day increased from 34% to 58% (McLeskey, Landers, Williamson, & Hoppey, 2012). These placement trends suggest that what began as an effort in the 1960s and 1970s to move children from the shadows to the vitality of the schoolhouse, had become by the 1990s, a movement to provide inclusive instruction in general education classes for most, if not all, students.

In the new millennium, issues of what students with disabilities should learn and how they should be grouped for instruction continue to raise challenges in the context of high expectations and challenging academic standards. Data from the 31st Annual Report to Congress indicate 94.7% of students with disabilities aged 6�21 years were educated in general edu- cation classes in 2007 for some portion of the school day; the percentage of those educated in special schools and learning environments remained constant from 1998 to 2005, but increased from 4% to 5.3% from 2005 to 2007. Placement trends continue to differ by age and by variations in stu- dents’ disability-related needs with fewer inclusive placements for students with intellectual disabilities, and emotional and behavioral disorders (US Department of Education, 2012).

Although the LRE policy presumes inclusive practices result in educa- tional benefits for all students, 40 years of research provides inconclusive evidence to support that presumption (Colker, 2006; Zigmond & Kloo, 2011). The undesirable achievement outcomes and post-school success of many students with disabilities suggests that placement alone is insufficient, and underscores the importance of carefully considering instruction suited to the individual needs of these students, and the opportunities each one needs to succeed (NCES, 2012a, 2012b; US Department of Education, 2013). This discussion is designed to examine the origins and evolving inter- pretations of the LRE concept in special education policy and practice. Consideration is given first to the origins of the concept and its evolution as a legal principle in American jurisprudence. The application of the concept to the educational strategies of mainstreaming and inclusion is examined next in the context of contemporary elementary and secondary schools. In conclusion, the future of the LRE concept is addressed in light of competing policies promoting presumptive inclusive education, and publicly funded school choice programs promoting greater involvement of parents in choos- ing where their children with and without disabilities should be educated.

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ORIGINS AND INTERPRETATIONS OF LRE IN

SPECIAL EDUCATION

The LRE provisions can be traced to long-standing controversies about where to educate special education students, especially students with intel- lectual and physical disabilities, and those with emotional and behavioral disorders. Prior to the enactment of Public Law 94-142 in 1975 (now called the Individuals with Disabilities Education Improvement Act [IDEA]), it was not uncommon for school districts to deny these students a public school education, or expel them indefinitely when personnel did not know how to teach them. Waiting lists were also common for tuition grants, which ultimately never came, to help parents pay for enrolling their children in private schools. With the passage of federal special education laws, exclu- sion of children with disabilities from public schools became unacceptable, and funding mechanisms were established to guarantee these children a FAPE at no cost to their parents (Huefner & Herr, 2012).

Origins of the Term

The concept of LRE in special education emerged from the right-to- education cases in the early 1970s, including Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania (1971) and Mills v. District of Columbia Board of Education (1972). Cases like PARC and Mills argued successfully that exclusion from public schools violated the equal protection of law under the Fourteenth Amendment to the US Constitution. Both cases also cited a legal preference for students with dis- abilities to be educated with non-disabled students, so long as the education they received was appropriate to their learning needs. This approach was called the least restrictive placement alternative, and the term was bor- rowed from the movement to relocate children and adults from residence in state institutions. The concept of the least restrictive alternative (LRA) was familiar to lawyers, foreign to educators, and embraced by parents who wanted a better education for their children than institutions or home- bound services could provide (Crockett & Kauffman, 1999). Application of the LRA concept to education, however, has followed an interesting route through both legislation and litigation.

The concept of LRA in Constitutional law serves to accommodate indi- vidual and state interests to one another. “As long ago as 1819, Chief

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Justice Marshall of the United States Supreme Court … indicated that reg- ulation affecting citizens of a state should be both ‘appropriate’ and ‘plainly adapted’ to the end sought to be achieved” (Burgdorf, 1980, p. 278). This principle has been phrased in various judicial forms, including “less drastic means for achieving the same basic purpose,” “least restrictive means,” and “the least burdensome method” (Crockett & Kauffman, 1999). Basically, use of the concept in special education can be summed up like this: “In very simple terms, the principle of LRA means that state laws and state officials (and here would be included public education officials and public school teachers) should be no nastier than they absolutely have to be” (Burgdorf, p. 279). In other words, the purpose of any legitimate governmental action, such as providing a child with an appropriate public education, may not be pursued by means that curtail personal liberties if that purpose can be achieved in a less restrictive way (Crockett & Kauffman).

Over time the terminology of the least restrictive placement alternative was dropped in favor of the more familiar term, LRE, with the intention of de-emphasizing location in favor of emphasizing the appropriate educa- tional services that could be provided within learning environments (Tucker, 1989). The concept of LRE has come to mean that when school officials cannot provide a beneficial education to a student with disabilities in the same way they do for typically developing students, they must meet their obligation to provide an appropriate education using the LRA to usual practices (Crockett, 2013).

LRE as a Legal Principle

From a legal perspective, the right to FAPE is the centerpiece of special education law. Every student in American schools, 3 to 21 years old, who has a disability and needs special education, is entitled to FAPE, which is assured through the provision of an individualized education program (IEP). To be appropriate, a student’s IEP must be reasonably calculated to allow for educational benefit based on his or her unique needs, and must be developed in a procedurally correct manner. In the process of providing FAPE school personnel are required to follow a sequential process by (a) evaluating the student for possible eligibility for special education using multiple non-discriminatory assessments; (b) developing an appropriate IEP; and (c) determining the LRE in which the student can learn appropri- ately based on the IEP. Providing specially designed instruction in what

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constitutes the LRE for an individual student is an essential component of an appropriate education. Not all disputes concerning the appropriateness of a student’s IEP involve placement, but all disputes over instructional placement are determined by the appropriateness of a student’s IEP. The most contentious of these disputes are centered on issues of placement in the LRE (Crockett, 2013).

The LRE requirements of the IDEA set out the factors to consider in educating students with and without disabilities together to the maximum extent appropriate (20 USC § 1412(a)(5). Placement decisions must be made by a group of people, including the student’s parents and others who are knowledgeable about the child, the meaning of the evaluation data, and the placement options, and must conform with the LRE provisions. Placement decisions must be made annually, must be based on the IEP, and must give consideration to any potential harmful effect on the child or to the quality of the required services. Unless their IEPs require otherwise, students with disabilities are expected to attend a school as close to home as possible or the school they would attend if they were not disabled. A special education student must not be removed from education in age- appropriate regular classrooms solely because of needed modifications in the general curriculum (34 CFR § 300.116).

LRE as a Rebuttable Presumption From a policy perspective, LRE is considered a rebuttable presumption. In other words, the law presumes the least restrictive placement for any stu- dent to receive appropriate instruction is the general education classroom, and “the less a placement resembles the general education environment, the more restrictive it is considered” (Yell, Katsiyannis, & Bradley, 2011). This presumption, however, can be rebutted by convincing evidence that an alternative placement offers a student the opportunity to receive an appro- priate education. For this reason, school districts are required to make a continuum of alternative placements available ranging from general educa- tion classes, special classes, separate schools, residential facilities, hospitals, to home settings (34 CFR § 300.115). Parents and professionals, less famil- iar with the law’s presumptive language, often confuse the terms main- streaming, inclusion, and LRE, but the meanings of these terms are not interchangeable. Mainstreaming implies that students with and without dis- abilities will be educated together as appropriate, but not exclusively. Inclusion has yet to be defined in the IDEA, or adopted by the courts as a term of art, however, because there is no widely accepted definition of what inclusion means across instructional settings. Essentially mainstreaming

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and inclusion are not legal terms, but rather educational strategies used to make the legal principle of LRE operational in schools. In deciding LRE cases courts compare the student’s educational benefits with the statute’s overall preference for general class placement.

Trends in Judicial Decisions Parents and school personnel have struggled for over 40 years with the con- cept of LRE because it is not a specific location, but the outcome of a pro- cedural process that considers a student’s learning and behavioral needs. Courts consistently acknowledge the preference for educating all students together, but utilize different analyses to determine LRE across judicial cir- cuits. Regardless of the geographical region in which decisions are made, trends in case law reveal no pattern favoring inclusive over separate place- ments (Rozalski, Miller, & Stewart, 2011; Warner, Roth, D’Agostino, & Brown, 2013). A sample of cases decided since 2010 suggests decisions depend on the circumstances of each case and the analysis used to consider those circumstances. In some cases separate placements were considered too restrictive to provide a student with educational benefit. For example, a special class in New York comprised of students with severe disabilities was considered too restrictive for a student with autism (G.B. v. Tuxedo Union Free School Dist., 2012). In other cases, separate, specialized place- ments were considered appropriate for specific content when inclusive instruction in general science and social studies classes did not provide aca- demic benefit to a 14-year old student who became overwhelmed and engaged in problem behaviors, but who performed satisfactorily in his other general academic classes (J. H. v. Fort Bend Independent School Dist., 2012). For students with health issues, placements in neighborhood schools continue to be thwarted by the availability of aids and services. In one Kentucky district the lack of funding for a full-time school nurse prevented a student with diabetes from attending his local school much as it might have impeded the attendance of students with health impairments in my own experience 20 years earlier (R.K. v. Board of Educ. of Scott County, 2010). The LRE provisions, however, do not require that students be schooled close to home, but only as close to their neighborhood school as possible to receive an appropriate education.

Applying the Concept of LRE Currently, there is no national framework to guide courts in making place- ment decisions, and to date the Supreme Court has denied hearing any LRE cases. Several circuit courts have devised analytic frameworks to

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evaluate whether a special education student is achieving satisfactorily in a general education placement. The major frameworks include the feasibility standard derived from Roncker v. Walter (1983), the two-pronged test used in Daniel R. R. v. State Board of Education (1989), and the four-pronged test derived from Sacramento City Unified School District v. Rachel H. (1994). Each of these analytic frameworks identifies similar factors to con- sider in making LRE placement decisions. In developing the feasibility standard, the Roncker court acknowledged a student’s appropriate educa- tion might conflict with preferences for integration, and factors including marginal benefits, disruption, and cost, could be considered in determining a student’s LRE. The Daniel R. R. two-pronged analytic framework con- siders the benefits of special and general education settings for each stu- dent, and requires integration with non-disabled students as appropriate if the presumption of an integrated placement is overcome. This analysis also requires more than academic achievement to ensure that access to general education settings will not be denied solely because the progress of the spe- cial education student will not equal that of a general education student.

The Holland analysis is related to the previous frameworks; however, it differs by giving primary consideration to whether a student can receive educational benefits academically and non-academically in a full-time gen- eral education placement. Each of these frameworks, and others derived from them, balance the benefits of special and general education, and con- sider the effect the student would have on the teacher and other students in the general setting, as well as the costs associated with this placement. Circuits that do not rely on analytic frameworks use the language of the IDEA to balance these benefits and consider these factors in determining whether a student can be educated satisfactorily in general classes. The intent of this discussion is not to explicate these frameworks (see Rozalski et al., 2011; Yell, 2012 for a thorough discussion), but to illustrate how sev- eral analyses were applied by the court in a case addressing the disputed placement of Beth, a 13-year-old student with Rett Syndrome, a neurologi- cal condition on the autism spectrum.

In the case of Beth B. v. Van Clay (2002) the court provided especially detailed illustrations of how several judicial tests could be used in applying the LRE principle, before contrasting this approach with the 7th Circuit’s preference for relying on an analysis of the statutory text. The court began by considering the merits of each judicial framework, finding the Daniel R. R. test superior to the others in tracking the statutory language of the IDEA, and determining the Roncker analysis placed too much emphasis on services that could be feasibly delivered, but not enough on

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what the student actually learned. The court first analyzed Beth’s current general class placement using the Daniel R. R. test, finding the school system made adequate attempts to support her inclusion with the indivi- dualized services of two teacher-aides, an inclusion facilitator, and a custo- mized curriculum using laminated books and modified text. The district also provided assistive technologies, and trained teachers and students to use them in communicating with Beth. The school system described its inclusion efforts as Herculean, but Beth’s parents considered them to be inadequate. The court determined Beth’s progress was best described as inconsistent and commented she might learn more in a setting where she could have more intensive special education.

In applying the Daniel R. R. analysis, the court noted the IDEA does not require changes that make the standard curriculum unrecognizable. In Beth’s case, significant changes were made in the seventh-grade classroom to adjust to her cognitive delays. The court also noted that as Beth advanced in grades, her interactions with classmates diminished. The court next con- sidered Beth’s effect on students and teachers, finding that her needs or out- bursts rarely distracted other students, but that her middle school teachers could not work with her and with other students simultaneously because of the significantly modified nature of her curriculum. Consequently the court determined Beth could not be satisfactorily educated in a general classroom, and turned to the second prong of the analysis, finding the district’s plans for her interaction with peers in non-academic activities including art, music, lunch, and field trips provided acceptable learning opportunities. Using the Daniel R. R. analytical framework, the court determined the presumption for an integrated class placement was overcome.

Shifting its analysis to the Roncker feasibility test, the court considered what made specialized programming superior to regular programming for Beth, finding the specialized setting provided her more contact with tea- chers trained and experienced in educating students with similar needs. The court noted that in either placement Beth had personal assistance from an aide, but in the smaller, specialized setting, she could receive close attention and more specialized instruction from the teacher without detracting from other students. In turning to the second prong of the test, the court found these advantages could not feasibly be duplicated in the general classroom. The district court determined that despite the IDEA’s preference for place- ment in general classes, the law does not require such placements if they result in an unsatisfactory education. Beth’s parents appealed the decision and Beth remained in general education classes pending the resolution of the placement dispute.

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In upholding the lower court judgment, the Seventh Circuit Court of Appeals (with jurisdiction for Illinois, Indiana, and Wisconsin) decided Beth’s IEP was appropriate, and emphasized the FAPE�IEP determination established by the Supreme Court in Board of Education v. Rowley (1982) as being the first step in any placement inquiry. The court noted “the FAPE provision and LRE provision are two sides of the same IEP coin,” but warned Beth’s parents had confused the FAPE side of the coin with the LRE side by arguing that as long as Beth received some educational benefit in the general class, she could not be removed from that setting. The court instructed that “the Rowley holding applies only to the school district’s responsibility to provide a FAPE � a requirement that analyzes the appro- priateness of the district’s placement � not the appropriateness of its alterna- tive, in this case the regular setting.” Applying the Rowley standard to decisions about placement in the LRE instead of to decisions about an appropriate IEP “turns the ‘some educational benefit’ language on its head.”

In ultimately deciding this case, the appeals court did not apply a judi- cial LRE test, but relied on a fact-specific inquiry in finding that the school district’s placement represented “an acceptable point along the continuum of services between total integration and complete segregation.” As long as the special program included opportunities for interaction with non- disabled peers, the placement satisfied the requirement that Beth be edu- cated with them to the maximum extent appropriate. Beth’s parents appealed to the Supreme Court, but their request for certiorari was denied. Although the Supreme Court established the standard of appropriateness in 1982, it has left the attendant principle of placement in the LRE to pro- fessionals, parents, and lower courts to decide. Although the IDEA prefers inclusion, it does not require inclusion. Placement decisions require thoughtful analysis because the law acknowledges a rational basis for deter- mining, on a case-by-case basis, that a child’s FAPE might depend on the LRA to the general education classroom.

Beth as described in this case is a student who needs a high level of resources, strategies, and supports to help her function more successfully in both home and school environments (Copeland & Osborn, 2013). Beth could also be described as a “high need” student, meaning costs of her instruction are likely at least three times those of her classmates without disabilities (Richmond & Fairchild, 2013), and although costs cannot con- strain consideration of what services she needs to learn appropriately, they can be considered in determining how and where those services will be pro- vided (Yell, 2012). In the current language of accountability, Beth would also be considered a student with “extensive support needs” (Jackson,

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Ryndak, & Wehmeyer, 2010), who should be provided with an IEP that reflects her capabilities, and the services she requires to make progress. Assessing what students like Beth are learning requires alternate methods from standard assessments, and some would argue an equal opportunity for her to learn what others are learning requires inclusive education place- ments in age- and grade-appropriate general education contexts (see Jackson et al.). Others would argue against such a rigid integration pre- sumption (Colker, 2006; Crockett & Kauffman, 2001; Weber, 2006), turn- ing, instead, to a more nuanced approach underscoring the IDEA’s requirement for a continuum of alternative placements to satisfy IEP requirements, and recognizing the importance of school-based data in mak- ing decisions about the context in which individual students will be taught.

Educational Strategies to Implement the LRE Principle

How schools provide specially designed instruction for students with dis- abilities in the context of heightened accountability and inclusive school reforms is a topic that “continues to raise exciting possibilities as well as practical challenges for both general and special educators” (Eisenman & Ferretti, 2010, p. 262). Recent research provides descriptions of what inclu- sively delivered special education is like for students with learning and behavioral disabilities and their teachers. These studies focus on classroom ecologies that influence effective instruction by addressing social inter- actions, the organization of curriculum and instruction, and the manage- ment of learning environments in elementary and secondary schools.

Educating Elementary Students Inclusive service delivery has been studied most frequently in elementary schools, and much of what has been published suggests students, especially those with learning and behavioral disabilities, might be provided with a good general education, but not with the intensive, special education needed to make progress toward challenging standards and meaningful learning goals (Baker & Zigmond, 1995; McLeskey & Waldron, 2011). With regard to social learning, observational studies have yielded data about the type and quality of interactions between students and teachers, and students and their classmates. Cook and Cameron (2010) reported that teachers’ concern and rejection ratings toward included students with disabilities correlated with teacher�student interactions. Students who received higher concern ratings from their teachers also received more

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instructional interactions, such as questions or explanations related to aca- demic content; however, students with higher rejection ratings were more likely to experience negative, non-instructional interactions in response to their “undesirable behavior” (p. 71). The included students across all disability categories received significantly higher concern ratings than did their classmates without disabilities, suggesting the potential for positive academic interactions and outcomes. Disaggregated data, however, indi- cated the subset of included students with learning disabilities and behavior disorders received significantly higher rejection ratings from their teachers, suggesting it was unlikely their needs would be met and more likely they would experience negative outcomes. Their teachers’ perceptions were also likely to be communicated to other students and to negatively influence their social acceptance (Vaughn & Schumm, 1996).

A prime reason for placing students with disabilities in more inclusive settings has been to reduce social difficulties and to promote social accep- tance; however, peer interaction studies suggest varied outcomes. In some studies, temporary gains were observed, but longer lasting social benefits were hard to sustain because classmates held negative social perceptions of included students over time (Salend & Duhaney, 1999). In another study, social preference for students with disabilities decreased, as ratings of being least liked by their peers increased over the school year (Kuhne & Wiener, 2000). Estell et al. (2008) used multiple measures of peer social functioning to study a sample of 1,361 students including 55 students with specific learning disabilities from third grade to sixth grade, producing similar results to previous studies. Although these students were considered similar to their peers without disabilities, they were viewed as lower in social stand- ing among their classmates and these effects were sustained over time, “indicating that long-term inclusion may not substantially affect peer social functioning among students with LD” (Estell et al., 2008, p. 5). In short, these students may have been included, but not socially accepted.

With regard to academic learning, general education teachers report not having the time or skills to deliver explicit instruction needed by students with disabilities to achieve academic success (Berkeley, Scruggs, & Mastropieri, 2010; McLeskey & Waldron, 2011; Swanson, 2008; Vaughn & Linan-Thompson, 2003; Zigmond, Kloo, & Volonino, 2009). Elementary classroom teachers continue to differentiate instruction by using routine and easy to provide adaptations such as reduced workload, extra time, and altered assignments. These adaptations are often used broadly and are rarely individualized. Specialized approaches, such as modifying planned instruction, curriculum, and pacing with respect to students’ particular

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difficulties, is less frequently observed (McLeskey & Waldron, 2011). Whole group instruction remains the most often observed grouping struc- ture in both general education and special education settings, despite evidence that small group size is an effective instructional practice for struggling learners. Knowledge is emerging regarding intensive early reading interventions within a school-wide Response to Intervention (RTI) framework (see Katz, Stone, Carlisle, Corey, & Zeng, 2008; Vaughn, Denton, & Fletcher, 2010), but more information is needed about how multi-tiered systems of support address curricular content as students move to upper levels of schooling. More research is needed about RTI and multi- tiered systems, and the ecological components that effectively support the inclusive delivery of specially designed instruction.

Educating Secondary Students The academic demands and overall pace of content area instruction of sec- ondary school classrooms pose special challenges for students with learning and behavioral disabilities and their teachers (Mastropieri & Scruggs, 2001). In addition, high stakes testing determines who receives a high school diploma, increasing the pressure on students and teachers to suc- ceed. In middle and high schools, the goal for using multiple tiers of instructional support is to strengthen literacy skills so adolescents can suc- ceed in content classes, graduate, and be college or career ready. Curricular demands have escalated, but data from classroom studies suggest second- ary instruction continues to be fragmented, with limited ownership among professionals for students’ learning problems.

The prevailing hope in high schools is that older students will have bene- fited from early grade interventions, and that manifestation of their learn- ing difficulties would be minimized or reduced by the time they reach adolescence (Deshler, 2005). The policy emphasis on early intervening ser- vices underscores this hope, but research indicates that adolescents with disabilities “have enduring and unique characteristics that are manifested in differing ways as development and setting demands change” (p. 122). The need for effective intervention strategies for older students is equally if not more important because of the emotional overlays that typically emerge as adolescents mature and continue to experience significant failure. Despite the known link between academic success and social efficacy for youth with disabilities, however, the commitment to school-based social support programs is weak. For example, in studying the implementation of an adaptive coping intervention with 98 adolescents in four secondary schools, Firth and colleagues (2008) found common problems with fidelity,

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noting outcomes might have been stronger if teachers had more time to implement the lessons, and if participating schools placed higher priority on the acquisition of social skills in targeting educational achievement.

High expectations for academic achievement are driven by the need for increasingly literate citizens, which in turn raises priorities for enhancing the literacy instruction of secondary students. Significant federal invest- ments have been used to study the characteristics of younger readers and instructional practices that produce positive outcomes; however, reading research with adolescents has not been well funded. Monitoring students’ progress and their response to intervention in making decisions about instructional intensity and differentiation are not well developed at the sec- ondary level. Consequently, there is insufficient information to inform the kinds of curricula and contexts struggling adolescents need to achieve the gains to be competitive in current economic and academic realities (Vaughn et al., 2008).

The majority of students with disabilities read below grade level, and they require different instructional emphases and pedagogies to improve their reading comprehension. How to meet this challenge when they are primarily served through co-teaching is a special concern, given impressive gaps in their grade level achievement (Faggella-Luby & Deshler, 2008). Schools typically rely on co-teaching as the most frequently used model of inclusive service delivery (Zigmond et al., 2009), and although co-teaching appears to be efficient, the practice of pairing general and special educators for instruction “can, depending on how it is implemented, facilitate or impede effective special education” (Cook, McDuffie-Landrum, Oshita, & Cook, 2011, p. 157). Cook and his colleagues conducted an extensive examination of the impact of co-teaching on both student outcomes and teachers’ practices to determine its empirical support. In their analysis, co-teaching remains popular, but unproven as an organizational approach to resource management. Although teachers perceive co-teaching to be ben- eficial, as a service delivery model it frequently fails to blend the content expertise of general educators with the pedagogical prowess of special edu- cators. More research is needed before conclusive statements can be made about the effectiveness of co-teaching, and unless the resources invested in the special education co-teacher are used to enhance the learning of special education students, then co-teaching could represent a wasted resource.

Recent data also suggest insufficient attention is being paid in most mid- dle and high schools to IEP goals that address the need for intensive and extensive amounts of specialized instruction in both reading and mathe- matics (Catone, Brady, & Brady, 2005; King-Sears & Bowman-Kruhm, 2011;

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Pearl & Miller, 2007). From a policy perspective, the stakes are very high for adolescents with learning and behavioral disabilities to receive the spe- cialized content area instruction they need because students typically make decisions in the middle grades to stay in school or drop-out, and in most cases their decisions hinge on their success in the content areas of English and mathematics (King-Sears & Bowman-Kruhm).

Students with disabilities are frequently placed in academic classes with teachers who have little or no background in teaching them, and limited expertise in using learning strategies and other evidence-based practices. As a result, classroom teachers need professional development and on-going support from specialists to implement evidence-based interventions with fidelity. It is also likely that classroom teachers, pressured by content cover- age and state assessments, will resist giving time to social interventions if they perceive them to be supplementary, rather than complementary to the academic curriculum (Montague, 2008; Montague, Enders, & Dietz, 2011). Although research provides some reason to be hopeful about gains that might be achieved by students with learning and behavioral disabilities in inclusive contexts, sustainable gains across social domains and core curricu- lum classes leading to standard high school diplomas require significant changes in practice (Crockett, Filippi, & Morgan, 2012).

In sum, evidence from empirical research suggests that students with dis- abilities are frequently included for instruction, but often underserved in elementary and secondary classrooms when their learning needs are not appropriately addressed. To ensure equal access to a high quality inclusive education, these students require time-limited, intensive instruction in small groups sometimes in settings other than the general classroom to learn spe- cific strategies designed to support their acquisition of academic content. They also need procedures to ensure they can generalize the use of these strategies when they return to their classrooms (Montague, 2008). The kind of collaboration necessary to support this flexible design is unlikely to occur, however, when serious obstacles prevent the implementation of effective practices in typical classroom settings.

THE FUTURE OF THE LRE PRINCIPLE

Where students with disabilities should be taught has been a complicated and contested terrain for the past 40 years; nonetheless, schools have come a long way since the 1960s in making general education curricula and

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contexts more accessible to a wide range of learners. Some suggest over the next decade the entire educational system will be disrupted by an emphasis on personal choice brought on by technological changes. As a result, the concept of school is likely to take many forms “where learning is no longer defined by time and place. Radical personalization will become the norm as learners and families create individualized learning ‘playlists’ and educators embrace new rules defined by growing relationships with the community and changing credentials” (Pace, 2013, p. 32). The potential realization of this vision poses questions about the meaning of the least restrictive con- struct in the context of highly personalized virtual learning environments.

In the near future, interpretations of the LRE concept are likely to be influenced by competing policies promoting inclusion, and publicly funded school choice options, especially those designed specifically for students with disabilities. Both policies are based on presumptions rather than empirical evidence that inclusive education, or parental choice, will ensure a student an appropriate public education. Considering the current status of inclusionary practice, the current controversy over placement could be described as being about what the public, indeed, finds desirable. The pre- sumption of inclusive placement for all students with disabilities is the pur- suit of an ideal for some, but not for all stakeholders. Ironically, noted educational historian Robert Osgood (2005), assuming “all children will succeed and be happy in an integrated setting � and indeed have a desire and a responsibility to be there � will force children into a setting they neither want nor benefit from” (p. 200), much as the children who were consigned inappropriately to the margins of schooling prior to 1975. Osgood suggested the arguments and aspirations of those involved in cur- rent debates about LRE continue to be complex.

Presumptive Inclusion

Much of the discussion regarding the future of the LRE principle in special education concerns the strength with which inclusive settings should be pre- sumed to be the de facto placement for all students. LRE decisions have traditionally relied on the examination of a set of factors that consider the particulars of diversity and circumstance that comprise the situation for an individual student. In legal reasoning, factors are not based on theories, but on actual data. According to judicial scholar Cass Sunstein (1996), “tests of this sort imply a wide and close look at individual circumstances. On this view, justice is far from blind. It tries to see a great deal” (p. 144).

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Presumptions, in contrast, rest on theory and are by their very nature con- frontational; they beg a challenge rather than offer procedures for careful decision-making (Tannen, 1998). Presumptions are generally considered to be positive policy tools because they push practice toward desired public ends, while offering greater freedom of choice and protection against what affected parties might consider harmful.

Presumptions are blunt instruments, however, with the potential for ben- efit as well as unintended harm. The integration presumption, for example, has been beneficial in monitoring special education placements by race so they do not become vehicles for racial segregation in schools. Overusing this presumption, though, can be harmful by preventing the appropriate delivery of specialized services in alternative settings to those students who need a greater level of support (Colker, 2006). Educational harm results when decisions are based on presumptions instead of students’ individual strengths; when students are miss-placed and left in separate settings that fail to meet their needs; or when they are included in general education contexts without receiving services aligned with their IEPs. “The word harm is mentioned only once in the IDEA, and that is in the LRE require- ments of the federal regulations” (Crockett, 2013, p. 13).

Some parents choose schools dedicated to educating students with dis- abilities because of concerns that district schools fail to offer value for their children. As a consequence, future activity regarding the LRE concept is likely to address what can be done to improve the delivery of effective instruction in general education settings (Weber, 2006). Some states are using policy levers in an attempt to shape practice by defining the term inclusion as part of the continuum of alternative placements in state codes. The Florida legislature recently specified that the term inclusion could be used by school districts when students with disabilities received education in a general education class setting reflecting natural proportions and age- appropriate heterogeneous groups; when a student with a disability is a valued member of the classroom and school community; when teachers and administrators support education for all students, and have knowledge and support available so they can teach all children effectively; and when a student with a disability is provided access to best practices, instructional methods, and supports tailored to his or her needs (Florida Statute Title XLVIII § 1003.57(1)(a)(2)). School systems across the state are expected to use the Best Practices in Inclusive Education (Florida Department of Education, 2013) assessment tool every three years to gauge both district level and school level capacity to implement inclusion aligned with the newly enacted definition. The use of research by school boards in assessing

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the effectiveness of these policy initiatives to improve the delivery of inclu- sive education to students with disabilities is likely to depend on how the research community understands the social ecology of relationships, orga- nizational settings, and political and policy contexts in which district deci- sions are made (Tseng, 2012).

Parental School Choice

Tension and controversy also surround the voluntary aspect of parental school choice and the procedural aspects of implementing the IDEA and the LRE principle. Traditionally a team including both educators and the parents of a special education student has made decisions about where instruction should take place as a way to ensure the student’s right to an equal educational opportunity is protected (Mead & Green, 2012). “Parents have a voice in the process, but may not dictate placement. Therein lies the tension” (p. 116), and tensions have involved every type of choice program from magnet schools, and other forms of inter- and intra- district option, charter schools, and voucher programs. All publicly funded school choice options must be accessible to students with disabilities, and parents cannot be required to waive appropriate services for their children to participate in them. The student’s right to FAPE must be protected in any program delivered in a public school, which includes instruction in charter schools, and each state must determine whether the sending district, the receiving district, or some other entity serves as the local educational agency in implementing the IDEA (Mead & Green).

Charter schools are public schools that have been relieved of certain local and state policy requirements in exchange for compliance with the terms of their charter agreement. As public schools, they must comply with federal requirements, which include the provision of FAPE in the LRE to enrolled students with disabilities (Mead & Green, 2012), including the availability of a continuum of alternative placements (Letter to Anonymous, 2009). The challenge for charter schools is to implement new educational approaches while also providing meaningful participation and progress for children with disabilities, as traditional public schools are required to do. There is variation from state to state, and among charter schools within a state, regarding their responsibility for implementing the IDEA. However, the federal regulations to the IDEA are clear that “children with dis- abilities who attend public charter schools and their parents retain all rights” (34 CFR § 300.209(a)).

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Virtual charter schools raise particular challenges with implementing IDEA, as the question becomes “what does special education look like when the school has no ‘bricks and mortar’?” (Mead & Green, 2012, p. 121). In addition to concerns with accessibility, virtual charters must also consider aspects of service delivery for students separated by great dis- tances. To address the LRE principle, these schools may need to consider contracting with local service providers so that students might receive essential related services, if technology cannot provide these services satis- factorily. Virtual charters also raise the issue of socialization for students who spend their instructional day at home rather than in a classroom, and whose interactions with other students occur online. Addressing social skills on a student’s IEP may require creative interactions with school officials and community resources (Mead & Green).

Charter schools designed specifically for children with disabilities pose the most direct challenge to policies of presumptive inclusion “as they draw attention to the central policy tension between parental choice and the IDEA’s principle that children should be educated in the least restrictive environment” (Mead & Green, 2012, p. 123). According to data published in 2008, 71 charter schools in 13 states and the District of Columbia were authorized to educate (a) students with specific disabilities (e.g., deaf, autism, learning disabilities, behavior disorders); (b) students with any disability; and (c) students with disabilities, and also typically developing students within model inclusion programs (Mead, 2008). Initial guidance provided in the 1990s indicated it would be inconsistent with the IDEA to allow parental choice to trump the decisions of the child’s IEP team, and commentary from the 2006 regulations supported this interpretation of LRE decisions in choice environments. In their analysis of these complex issues, Mead and Green noted if their relatively small number were to increase, federal policymakers would need to consider how these schools could achieve their aim “while genuinely espousing the principles that have characterized our national policy on the education of children with disabil- ities since the mid 1970s” (p. 124). More research is needed to illustrate how these schools are effectively using public resources, how expertise is obtained, and how quality programming is being provided so students receive a FAPE in association with their non-disabled peers to the maxi- mum extent appropriate.

For the past four decades, educators, parents, and attorneys have viewed the integration principle of the LRE from different perspectives as schools have endeavored to provide a genuinely appropriate public education for students with disabilities. For most stakeholders, special education

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continues to be synonymous with appropriate, specially designed instruc- tion delivered across a continuum of alternative placements (Weber, 2006). In contrast, some advocates consider inclusive placements for all students as a civil right to an equal educational opportunity (Jackson et al., 2010). Despite its attendant controversies and complexities, the LRE concept has helped to shorten the distance between special and general education, two branches of the educational system with distinguished histories that increasingly share the responsibility to pursue equitable and effective learn- ing for all students (Zigmond & Kloo, 2011).

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