FAPE, LRE, and Related Laws: Implications for Inclusion and Co

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FAPE, LRE, and Related Laws: Implications for Inclusion and Co-teaching

Introduction

As more students with disabilities receive special education services in general education

classrooms, all teachers, including beginning teachers, must have knowledge on the legal

requirements of the Individuals with Disabilities Education Improvement Act (IDEIA) and how

to ensure the legal rights of students are not violated directly or indirectly. There has been a

significant positive change in education with each new piece of federal special education

legislation which ultimately led to the principles of the settings where students with disabilities

are to receive services. Schools districts and teacher preparation programs should make certain

that all teachers understand how to comply with legal issues and laws that protect students with

disabilities. This article discusses how critical court cases have shaped special education through

legislation. Furthermore, we examine the current research in inclusion and co-teaching.

Brief History of Special Education Delivery Settings

Federal Law and Supporting Court Cases

In 1975, Congress passed Education of All Handicapped Children Act (EAHCA) also

known as PL 94-142, which secured educational rights for persons with disabilities. After

numerous amendments, PL 94-142 became known as the Individuals with Disabilities Education

Act of 1990. Individuals with Disabilities Education Act of 1990 was reauthorized again in 1997

and 2004 as Individuals with Disabilities Education Improvement Act (IDEIA), but the purpose

of IDEA remained, which was to: 1) provide a free appropriate public education (FAPE)

designed to meet the needs of the individual student through special education and related

services; 2) ensure the rights of parents and children with disabilities were protected; 3) help

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States and schools provide education to students with disabilities with federal funding; and 4)

evaluate and assure the effectiveness of efforts to education students with disabilities. The

founding principles of EAHCA are reemphasized IDEIA (2004), which are: 1) IDEA guarantees

a free appropriate public education; 2) IDEA requires an appropriate evaluation to receive

services; 3) IDEA requires an individualized education plan (IEP) designed to meet the needs of

the individual; 4) IDEA requires that parents participate in the special education process; 5)

IDEA requires the procedural safeguards be in place; and 6) IDEA requires a student with a

disability be provided FAPE in the least restrictive environment (LRE).

One of the founding principles of EAHCA is to provide access to students with

disabilities through FAPE. Federal law defines FAPE as:

(18) The term 'free appropriate public education' means special education and related

services which (A) have been provided at public expense, under public supervision and

direction, and without charge, (B) meet the standards of the State educational agency, (C)

include an appropriate preschool, elementary, or secondary school education in the State

involved, and (D) are provided in conformity with the individualized education program

required under section 614(a)(5) (EAHCA, 1975).

States are required to provide access to education through FAPE through the development and

implementation of an IEP determines the quality of that education. EAHCA (1975) defines an

IEP as:

(19) The term 'individualized education program' means a written statement for each

handicapped child developed in any meeting by a representative of the local educational

agency or an intermediate educational unit who shall be qualified to provide, or supervise

the provision of, specially designed instruction to meet the unique needs of handicapped

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DOI: 10.61611/2995-5904.1004

children, the teacher, the parents or guardian of such child, and, whenever appropriate,

such child, which statement shall include (A) a statement of the present levels of

educational performance of such child, (B) a statement of annual goals, including short-

term instructional objectives, (C) a statement of the specific educational services to be

provided to such child, and the extent to which such child will be able to participate in

regular educational programs, (D) the projected date for initiation and anticipated

duration of such services, and (E) appropriate objective criteria and evaluation procedures

and schedules for determining, on at least an annual basis, whether instructional

objectives are being achieved.

One purpose of an IEP is to develop goals and implement services that are based on the

individual needs of students with disabilities (IDEIA, 2004). Another purpose of an IEP is to

determine the LRE for each specific student, with a preference for of including students in the

general education setting (Gordon, 2006).

Students with disabilities receive FAPE as directed in their IEP in the least restrictive

environment. The LRE focuses on the location/setting of where the IEP services will be

implemented. What does least restrictive environment (LRE) mean? Least Restrictive

Environment (LRE) is the requirement in federal law that students with disabilities receive their

education, to the maximum extent appropriate, with nondisabled peers and that special education

students are not removed from regular classes unless, even with supplemental aids and services,

education in regular classes cannot be achieved satisfactorily. [20 United States Code (U.S.C.)

Sec. 1412(a)(5)(A); 34 Code of Federal Regulations (C.F.R.) Sec. 300.114.]

What do the terms “mainstreaming,” “integration,” “full inclusion” and “reverse

mainstreaming” mean? None of these terms appears or are defined in federal or state statutes.

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They are terms that have been developed by educators to describe various ways of meeting the

LRE requirements of special education law. As a result, different educational agencies—school

districts, county offices or Special Education Local Planning Areas (SELPAs) —may have

somewhat different definitions of these terms.

Several court cases were used to determine when services would be in the general

education class and when it was necessary to use another placement based on decisions of cases

such as Board of Education v. Rowley (1982), Roncker v. Walter (1983), and Daniel R.R. v. State

Board of Education (1989). In the case of the Board of Education v. Rowley, the parents of a

student who was deaf sued the Hendrick Hudson School District for not providing a sign

language interpreter for their daughter while in the general classroom (Board of Education v.

Rowley, 1982; Gordon, 2006). The school claimed that it had provided the student who was deaf

with an interpreter for a period of 2 weeks, but the student did not need the interpreter’s services

during that time in the classroom. The parents requested an independent evaluation, but both the

examiner and hearing officer concluded that the student did not need the interpreter. The parents

sued the school district under the notion that the school failed to provide their child with FAPE.

The court sided with the parents, concluding that even though the student did not need the

interpreter at that time, because of the student’s disability, she was academically disadvantaged

and must have some educational gain in addition to social gain. This court case defined the

proper procedures needed when determining appropriate placement and services for each

individual child. It has also served as an important model in subsequent cases to determine if a

student would benefit by placement in the general education classroom utilizing appropriate

accommodations and modifications. This court case was important because it gave cause to

including students with disabilities in the general education class room using proper supports, i.e.

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DOI: 10.61611/2995-5904.1004

accommodations that make the curriculum accessible and modifications which modify the

curriculum so that students can perform similarly to peers without disabilities. Additionally,

supports are put in place in an inclusive classroom to support students with disabilities when they

are needed.

In the case of Roncker v. Walter (1983), a 9-year-old with an intellectual disability was

sent to a facility where only students with disabilities attended. The parents appealed the school’s

decision because they believed the student had not been given the opportunity to attend school

with his peers without disabilities and had been denied placement in the least restrictive

environment (LRE) (Roncker v. Walter, 1983). The district court agreed with the school system’s

placement stating that the separate facility was the best placement (Gordon, 2006; Roncker v.

Walter, 1983). In addition, the Sixth Circuit Court ruled that if the separate facility was more

appropriate, then the court should decide what factors determined that this facility was more

suitable than the general education classroom. The case was then returned to the district court to

consider those issues. The Sixth Circuit Court determined if the placement was appropriate and

transferable to general education classroom by reviewing the following: (a) which was most

appropriate, general education classroom or special education classroom; (b) which services

could be transferred from the restrictive classroom setting to the general education classroom; (c)

would the student benefit from being in the general education classroom; (d) would the benefits

of the regular classroom outweigh the services provided in the restrictive classroom; (e) would

the student’s behavior cause disruption in the general education classroom; and (f) what would

be the cost to provide the services. These six factors were combined to coin the term the Ronaker

test. Ultimately, the Ronaker test was used to determine if a student should be placed in the

general education classroom.

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In Daniel R.R. v. State Board of Education (1989), the court voided the Ronaker test and

established a two-part test that other courts could utilize to determine if schools were complying

with LRE (Gordon, 2006; Sanks, 2009). Daniel was a kindergarten student with Down syndrome

who was initially placed in the general education classroom (Daniel R.R. v. State Board of

Education, 1989; Gordon, 2006). He was moved to a special education classroom after his

teacher explained that he was not mastering the skills even though she had modified her teaching

methods. Daniel’s parents sued the school district for not placing Daniel in the LRE. The court

applied a two-part test, which asked the questions: (a) if accommodations were used, could

education be successful in the general education classroom; and (b) if not, and there was a

change of placement, was the student included in the regular classroom or activities with peers as

much as possible. The court ruled that the student would benefit more from being in a special

education classroom than a general education classroom after considering the factors. The court

encouraged the school’s decision-making process as long as it could show that it had complied as

closely as possible with the IDEA requirement of the least restrictive environment.

Partly due to the aforementioned court cases as well as many additional factors, IDEA

was reauthorized to include federal mandates based on several of the recommendations by the

courts. These changes within the law provided schools with clear direction on how best to meet

the needs of students with disabilities in their schools.

Special Education Legislation

Individuals With Disabilities Education Act. IDEA was reauthorized in 1997. The

purpose of the 1997 amendment to IDEA was to ensure that students with disabilities were

improving academically and prepared to enter society as productive, independent members of the

community (IDEA, 1997). A major change to IDEA was the philosophy of including students

Kentucky Teacher Education Journal: The Journal of the Teacher Education Division of the Kentucky Council for Exceptional Children, Vol. 5 [2018], Iss. 1, Art. 1

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DOI: 10.61611/2995-5904.1004

from self-contained classrooms in the general education curriculum, while also expecting them

to achieve the same academic standards. This amendment also required students with disabilities

to be included in the general curriculum and to take state-required assessments with the

appropriate modifications and accommodations.

The second revision on IDEA occurred in 2004. With this reauthorization, it was

renamed the Individuals with Disabilities Education Improvement Act (IDEIA). IDEIA

mandated that FAPE be provided for students with disabilities ages 3 through 21 as directed by

their IEP in the LRE (Gordon, 2006; IDEIA, 2004). Inclusion in the general education

classroom is the first, least restrictive option to consider for a child, while special education

classes and special education schools are examples of more restrictive environments (Gordon,

2006). One of the purposes of an IEP is to determine the LRE for each specific student, with a

preference for inclusion (Gordon, 2006). The goal of special education is to develop and

implement instruction that is based on the individual needs of students with disabilities (IDEA,

1997; IDEIA, 2004).

No Child Left Behind Act of 2001. In 1965, the Elementary and Secondary Education

Act (ESEA) was enacted, providing states with grant support for the education of students with

disabilities. ESEA was reauthorized in 2001 as the No Child Left Behind Act of 2001 (NCLB,

2002). The purpose of the NCLB (2002) was to increase accountability for student achievement

(including students with disabilities), and it also required schools to make adequate yearly

progress (AYP) (Gordon, 2006; Harvey, Yssel, Bauserman, & Merbler, 2010). Pulliam and Van

Patten (2007) suggested that the primary focus of NCLB was to hold states and school districts

accountable for student achievement. NCLB also required students to be taught by highly

qualified teachers (Mainzer & Mainzer, 2008; Sanks, 2009). The emphasis on highly qualified

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teachers was also reiterated in IDEIA (2004), which required special education teachers to be

high qualified (IDEIA, 2004). To meet NCLB (2002) and reauthorization of IDEIA (2004),

students with disabilities are to be taught in the least restrictive environment by highly qualified

teachers (Conderman & Johnston-Rodriguez, 2009; Cook, Tankersley, & Landrum, 2009;

Cooper, Kurtts, Baber, & Vallecorsa, 2008; DeSimone & Parmar, 2006; Friend, 2008; Idol,

2006; Kloo & Zigmond, 2008; Mainzer & Mainzer, 2008; Nichols, Dowdy, & Nichols, 2010;

Rice, Drame, Owens, & Frattura, 2007).

In 2004, amendments were added to IDEA and with the purpose of enhancing alignment

with NCLB (2002). New accountability was placed on students with disabilities; therefore,

students with disabilities had the same achievement expectations as their peers (Gordon, 2006;

IDEIA, 2004; Mainzer & Mainzer, 2008). Among the changes in IDEIA of 2004, Congress

mandated that students with disabilities have access to a challenging general curriculum

(Hardman & Dawson, 2008). With this alignment, the requirement for more students with

disabilities to be placed in the general education classroom increased (Shoulders & Krei, 2016).

More and more schools were implementing an inclusive classroom model within their schools

due to this federal mandate.

Every Student Succeeds Act (2015). In December of 2015, the Every Student Succeeds

Act (ESSA) replaced NCLB. ESSA's primary focus was to lessen the government constraints on

federally required assessments and give more control to each state regarding how those

assessments would be administered. Most importantly, the AYP requirement of NCLB, is no

longer a requirement within ESSA (Franquiz & Ortiz, 2016). Additionally, ESSA has also

removed the highly qualified teacher requirement (Sawchuk, 2016). ESSA only requires

teachers, who teach in Title I schools, to fulfill their states’ licensure policy (Sawchuk, 2016).

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IDEA of 2004 still had the highly qualified teacher requirement, but ESSA included amendments

to remove the highly qualified reference in IDEA (Gardner, 2017). While ESSA removed the

highly qualified teacher requirement, many states still require teachers to be highly qualified. As

alluded to before, schools use the inclusion model to ensure that students with disabilities are

taught by highly qualified teachers and those teachers of record are usually general education

teachers. Thus, the law forced schools into this model without considering the needs of students

and if the inclusion classroom is actually the LRE for some students with unique, challenging

needs.

Best Practices in Special Education Service Delivery:

Inclusion

How do schools meet the previously discussed federal mandates about highly qualified

teachers and still provide FAPE? Most experts would say by the inclusion model (Friend, 2008;

Gordon, 2006; Sanks, 2009; Shoulders & Krei, 2016). Inclusion is a service delivery model

employed to fulfill the least restrictive environment requirement for students with disabilities

who attend class in the general education classroom with peers (Sanks, 2009). In an inclusive

classroom, a student is presumed to belong in the general education class that the student would

attend if he or she did not have a disability and an IEP (specially designed instructional services

are provided there) (Gordon, 2006). Inclusion restructures the way services are provided to

students, so they are brought into the classroom instead of receiving services in a pull-out model.

This model requires collaboration between the general and special education teachers (Friend,

2008). Inclusion into the general curriculum means providing the necessary supports and services

in the general education classroom, but it does not mean doing away with special education

instruction. Friend (2008) claimed that inclusion is the process of incorporating special education

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and general education initiatives and tactics in order to obtain a cohesive educational system that

includes all students as active, fully participating members of the school that views diversity as

the norm and that provides a rigorous curriculum, effective teaching, and necessary supports.

Praisner (2003) noted that in the inclusive classroom, the general education teacher works

willingly and consistently with the special education teacher to provide challenging curriculum

to all students. Inclusion allows access for all students to learn. If students with disabilities are to

have equal achievement on accountability tests then they must have access to the same

curriculum as their peer, not just specially designed instruction (Hardman & Dawson, 2008). As

a result, Hardman and Dawson (2008) noted that expectations of students with disabilities were

frequently lowered because special education teachers lack content certification and do not have

the same curriculum expectations when compared to general education teachers.

Co-teaching

Boudah, Deshler, Lenz, and Schumaker (2008) identified a trend in co-teaching towards

more students with disabilities being instructed in the general classroom versus the resource

classroom. To meet the instructional challenges an inclusive classroom can present (i.e. IEP

modifications such as reading orally and oral testing, specially designed instruction), many

schools are implementing co-teaching models in order to support all learners (Friend, 2008).

Mainzer and Mainzer (2008) suggested co-teaching is one way to fulfill the highly qualified

teacher and content requirement of IDEIA (2004), which required students with disabilities to be

taught by highly qualified teachers in the LRE.

Friend (2008) suggested a variety of instructional arrangements available co-teaching:

one teach, one observe, one teach, one assist, parallel teaching, team teaching, alternative

teaching, and station teaching. Similarly, Cahill and Mitra (2008) identified four types of co-

Kentucky Teacher Education Journal: The Journal of the Teacher Education Division of the Kentucky Council for Exceptional Children, Vol. 5 [2018], Iss. 1, Art. 1

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DOI: 10.61611/2995-5904.1004

teaching which were: lead and support, station teaching, parallel teaching, and alternative

teaching. The dominant co-teaching roles were found to be one teacher instructing while the

other teacher assisted, a practice not recommended by the literature (Scruggs, Mastropieri,

& McDuffie, 2007). Station teaching, parallel teaching, and alternative teaching are the co-

teaching models recommended to increase student success. Using these co-teaching models is

one way to meet the needs of students with disabilities by maximizing their instructional

supports in the general education classroom and meeting the LRE requirement.

Conclusion

Teaching, as a profession, has under prepared teachers in key areas of inclusion, co-

teaching, and special education law. The responsibility to equip teaches to successfully educate

students with disabilities in their LRE largely falls upon teacher preparation programs and school

districts. The literature reviewed within this study has revealed several key issues that focus on

access, quality, and delivery of services in special education. Every teacher should have

knowledge of these topics, particularly the meaning and implementation of LRE, inclusion, and

co-teaching. Teachers should possess a strong understanding of special education law and its

evolution process.

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