T he concept of inclusion in special education gated from their - PDF document

New Jersey’s Move Toward Inclusion by Jessica P. Limbacher and James J. La Rocca T he concept of inclusion in special education gated from their non-disabled peers in school. But it was not law generally refers to the placement of a until 1975 that a federal law, the Individuals with Disabili- ties Education Act (IDEA), 2 set forth the rights of students student with a disability in a general educa- tion classroom alongside peers who do not with disabilities. have disabilities. The notion that children For the past 40 years, states across the country have made with disabilities should be included in the concerted efforts toward ensuring that students with disabil- general education classroom setting began gaining steam fol- ities would be included in their general education class- lowing the U.S. Supreme Court’s 1954 ruling in Brown v. Bd rooms. Last year, following lengthy litigation in Disability of Educ. 1 The Brown decision, while specifically related to Rights N.J. v. N.J. Dept of Educ., 3 brought by disability advo- race, focused attention on segregated schooling in general, cates who alleged that the New Jersey Department of Educa- at a time when most special education students were segre- tion excluded children with disabilities throughout the state This article was originally published in the October 2015 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association, and is reprinted here with permission. 69 N EW J ERSEY L AWYER | October 2015 NJSBA . COM

from general education settings, New Jer- nitive and physical impairments began mentally interfere with the student’s sey entered into a comprehensive settle- to deteriorate in his public school class- ability to learn in a local placement; 6) ment agreement focused on inclusion. room, and the parents sought a residen- whether any health or educational pro- tial program for him. The hearing officer fessionals had previously determined Least-Restrictive Environment and state review officer both determined that a residential placement was appro- Standards and New Jersey’s History the IEP proposed by the district was priate; 7) whether the student had sig- of Restriction appropriate and the residential place- nificant unrealized potential that could ment was too restrictive. 11 However, the While inclusion is not explicitly ref- only be developed in a residential place- erenced in the IDEA, students with dis- Third Circuit held the student’s social, ment; 8) whether past experience indi- abilities are required to be educated in emotional, medical, and educational cated a need for a residential placement; the “least-restrictive environment” problems were so intertwined it was not and 9) whether the demand for residen- (LRE), and the general education class- possible to separate them, and that resi- tial placement was primarily to address room is the first placement option to be dential placement was, therefore, neces- the student’s educational needs. 17 considered. sary. The school district was thus held Despite the standards set forth by Under the New Jersey Administrative responsible for the cost of the residential federal and state laws, and although Code, and in language that mirrors the placement. more recent court decisions in New Jer- sey supported inclusive settings, 18 New IDEA, each school district is required to In a subsequent case in New Jersey, ensure that a student with a disability is Bd. of Educ. v. Diamond , a school district Jersey continued to favor separate place- educated with children without disabili- appealed from a final judgment requir- ments for students with disabilities. This ties, to the maximum extent appropri- ing the district to pay for a child’s pri- is due, in part, to New Jersey’s state laws ate. 4 The separate schooling, special vate educational expenses in a residen- prior to the IDEA, beginning as early as classes, or any other form of removal of tial placement on a full calendar basis. 12 1911, 19 which promoted what was a student with a disability from the gen- The court, in determining that residen- believed at that time to be most effec- eral education class can only occur when tial placement was appropriate for the tive: educating students with disabilities education could not be achieved satis- student, defined the LRE standard as in separate settings. After the IDEA man- factorily in general education class- “the least restrictive environment in dated that children with disabilities rooms with the use of supplementary which educational progress rather than should be educated alongside children supports and services. 5 In addition, alter- educational regression can take place.” 13 without disabilities whenever possible, In Oberti v. Bd. of Educ., 14 the Third native placements must be available to New Jersey struggled to shift toward meet the special education and related Circuit identified three factors to consid- inclusion. services needs of the student. 6 These er when determining whether a child’s In 1994, the New Jersey Developmen- placements, as well as any activities nec- placement is in the LRE: 1) whether the tal Disabilities Council compiled infor- essary to transition a student to a less school district has made reasonable mation about students educated in seg- regated settings. 20 The result, a report restrictive placement, are required to be efforts to accommodate the student in a determined at least annually. 7 general education classroom with sup- titled Separate and Unequal , highlighted A student’s placement must be based plementary aids and services; 2) a com- a pattern of segregation of students with on his or her individualized education parison of the benefits of a general ver- disabilities in New Jersey compared with students nationwide. 21 Even 10 years program (IEP), and the appropriate edu- sus special education classroom; and 3) cational settings must be as close to the the potential negative effects a place- later, in 2004, 8.8 percent of New Jer- student’s home as possible. 8 If the IEP ment may have on other students in the sey’s students classified as eligible for classroom. 15 Two years later, in D.B. v. does not provide any specific restric- special education were segregated in Ocean Twp. Bd. of Educ. , 16 the court iden- tions, the student is educated in the separate facilities, as compared with the national average of 2.9 percent. 22 In par- same school he or she would be educat- tified six additional factors to determine ed in if he or she did not have a disabil- whether a residential placement would ticular, minority students were classified ity. 9 be appropriate: 4) whether any emotion- and placed in segregated settings at sig- Several cases in the 1980s and 1990s al conditions fundamentally interfered nificantly higher rates than their white peers. 23 Students with behavioral chal- set the standard for LRE determinations with the student’s ability to learn in a in New Jersey. In Kruelle v. New Castle local placement; 5) whether the stu- lenges were also disproportionately County School District , 10 the behavior of a dent’s behavior was so inadequate, or placed in restrictive classrooms—during 13-year-old student who had severe cog- regressing to such a degree, as to funda- the 2002-03 school year, nearly one 70 N EW J ERSEY L AWYER | October 2015 NJSBA . COM