The 6th Circuit Court of Appeals recently called a school district’s arguments in favor of segregating a student with Down syndrome “a bit bizarre.” I’ve written about the case of 15-year-old Luka who wanted to continue to be included with his typical peers here. The school district’s arguments to send him to a separate school, in a self-contained class for students with more significant disabilities won’t surprise most of my readers though. Many of us have heard the same argument.
In the case, officially named L.H. v. Hamilton County Department of Education, The district referenced a video of Luka in a general education class at the public school stating, “‘L.H. was functionally isolated from typically developing peers despite sitting in their midst.’ The district contended that this is common because ‘the academic gap between students with disabilities and typical peers can be so extreme that it is isolating and stigmatizing.’”
The U.S. District Court’s response is one that you’ll want to keep in your IEP meeting playbook:
“This is really an argument against ‘mainstreaming’ as a concept, because the district believes it is impossible, impracticable, or counterproductive . If this is truly the district’s view, then it is worrisome and inadvertently supports the parents’ experts opinions that the teachers and staff reject mainstreaming because they do not understand it, do not believe in it, and need extensive training on why it is valuable and how to do it .”
Read Related Post: Using Luka’s Case at Your Child’s Next IEP Meeting
The U.S. District Court went on to say the “premise is that L.H. should not be mainstreamed because the teachers and staff were unwilling or unable to properly engage in the process of mainstreaming L.H., as they deemed it futile or useless in light of his disability.”
“These actions do not demonstrate a failure of mainstreaming as a concept, but a failure of L.H.’s teachers and the other staff to properly engage in the process of mainstreaming L.H. rather than isolating and removing him when the situation became challenging.”
Wow! This is what advocates of inclusion have been arguing for FOREVER! But finally a U.S. District Court of Appeals confirms this legal precedent, and you can use it to fight for a general education placement with supports FIRST. Luka’s lawyer, Justin Gilbert, is using the ruling in cases in Tennessee, Michigan, North Carolina, and even California to shift LRE back to general education first.
Read Related Post: Ninth Circuit Appeals Court to Decide if a Student with Down Syndrome Can Stay in General Education Classroom
Remember, IDEA defines LRE as follows: “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 nondisabled; and Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”
Remember these important points when fighting for LRE in general education with appropriate supports:
- Your child does NOT have to keep up with their typical peers or the grade level curriculum to be included meaningfully in general education. The 6th Circuit Court of Appeals confirmed this in Luka’s case. You can make the argument that the LRE is always general education with supports, as long as your child is making meaningful progress on IEP goals in light of their disability.
- IDEA and state laws outline a continuum of placement that always starts in general education with appropriate supports and moves to more restrictive environments only after all supports have been exhausted. How do you know when they’ve been exhausted? When you’ve tried everything (1:1 aide, modified curriculum, behavioral plans, etc) and your child has made no progress individual progress.
- The placement decision happens annually. Even if your child is in a more restrictive environment now, you can make the argument that LRE needs to be discussed and re-evaluated every year.
- Be careful how your child’s IEP goals are written. Those goals drive placement. So if you’re child’s goals are life skills based, like counting coins or tying their shoe, you may be writing your child right into a more restrictive placement. Always tie your child’s IEP goals to the grade level curriculum at their level.
- There’s no legal statute that defines “inclusion.” LRE is as close as you get to the idea of inclusion. Use the language in IDEA defined above, as well as this case to make your case for general education with supports FIRST.
Luka’s mother, Deborah Rausch, says “all those sleepless nights were worth it!” She has one message for parents: “Do not accept a segregated placement. It is not appropriate for most any child. Insist on inclusion, and use a great advocate to negotiate with the school until you get it.”
Luka has made meaningful progress in a general education setting at a private Montessori school since his case went to due process in his 3rd grade year. He was recently accepted into a private high school. Read more about his case here.
I could never imagine my son’s teachers using the techniques the teachers above used and my son doesn’t really have any violent behaviors. Still, I have a “No Consent” letter on file. The statistics are not in your child’s favor, no matter who your child’s teacher is. It’s prudent to add this type of letter to your child’s record whether you like their teachers or not. The letter need not be adversarial, but instead puts in writing your expectations for behavior supports.
