Least Restrictive Environment and Inclusion: A Storm Sometimes Brings Relief

Least Restrictive Environment and Inclusion: A Storm Sometimes Brings Relief

G. Emerson Dickman, J.D.

The Law

The Individuals with Disabilities Education Act (IDEA) provides that each state establish:

Procedures to assure that, to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and that removal of children with disabilities from the regular education environment occurs only when education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. S 1412 (5) (B)).

This mandate is often referred to as the “least restrictive environment” (LRE) requirement. For many years this requirement was seen to be satisfied by providingmainstreaming opportunities for many classified pupils who received academics in a self-contained special education classroom and were integrated with children who were not disabled in non-academic activities such as art, music, lunch, gym, and recess. In the 80′s courts started to struggle with the necessity to develop a formula or test for determining whether or not the “least restrictive environment” requirement was being met. (Roncker, 1983; Greer, 1991; Daniel R. R., 1989; Oberti, 1993; Holland, 1994).

The most succinct and parsimonious of these decisions is the Holland case. (Holland, 1994). The court in Holland applied a four-factor balancing test to be applied if a self-contained special education environment is to be legally (and pedagogically) supportable:

  1. The Educational Benefit Test: Are the educational opportunities available in the self-contained environment better than those available in a regular classroom?
  2. The Non-Academic Benefit Test: Are the opportunities available in the self-contained environment more conducive to developing non-academic skills such as social skills, communications skills and self-confidence?
  3. The Impact on the Regular Class Test: Does the child pose a detriment to the education of the other children in the regular class because he/she is disruptive, distracting or unruly, or because he/she takes up so much of the teacher’s time that the other children would suffer from lack of attention?
  4. The Cost Test: Will the cost of placement in a regular class so burden the District’s funds that services available to other children are adversely affected?

Although some questions may still exist, the Holland court has provided guidelines that are understandable and easily operationalized.

Clearly, the courts have taken a position that assumes the correctness of the most inclusive option. The Holland tests places the factual burden on the party seeking to justify the more restrictive setting. It is also interesting to note, in cases where the school district seeks the more inclusive placement that concerns regarding impact on the regular class and cost are virtually moot, and the district need only show that the inclusive program provides an educational benefit and is not a detriment to developing non-academic skills.

As the law develops, several fundamental legal issues continue to be in flux. For example, although some courts continue to hold that the initial burden of proof rests with the party challenging the agency decision (Roland, 1990; Kerkam, 1988), the more enlightened position seems to be that, when the needs of persons with disabilities are at issue, the agency always has the initial burden to justify it’s decision (Holland, 1994; Oberti, 1993; J.E.,1993; Lascari, 1989).

The primary issues likely to result in a dispute requiring due process resolution in cases involving inclusion are the character and extent of the in-class support necessary to provide the regular classroom with the educational opportunities necessary for the student with disabilities to receive the requisite educational benefit(Rowley, 1982). The first step is, therefore, to develop an Individualized Education Plan (IEP) tailored to the child’s educational needs (Rowley, 1982). The second step would be to apply the four tests of the Holland case to determine if a regular classroom must be ruled out as the least restrictive environment.

In due process litigation, the school district has the theoretical advantage in inclusion cases, regardless of which side is required to carry the initial burden. If the district favors inclusion, it need only prove that the inclusive environment provides an educational benefit (cost, impact on the regular class, and the relative superiority of the self-contained placement are either moot or not relevant). The parent not only has to prove that the self-contained program is superior to the inclusive program, but that the inclusive program is, in fact, inappropriate. If the parents favor an inclusive environment, they not only have to prove that it is appropriate but, also, that such inclusion will not “pose a detriment to other children” nor “burden the district’s funds.” I believe that the fact that the cases we look to for guidance have favored the parent’s wish for inclusion, over the school district’s objection, is as indicative of the momentum of the inclusion movement as it is of the legal presumption favoring inclusion. I predict that this trend will slow down as school districts become increasingly aware of what is required to present their case.

The policy of the Office of Special Education and Rehabilitation Services (OSERS) has been addressed by Judith E. Heumann, herself having received part of her education in segregated settings, “for no other reason than I happened to use a wheelchair,” and by Tom Hehir, the Director of the Office of Special Education Programs (OSEP). Secretary Heumann stated that: “The regular classroom in the neighborhood school should be the first placement option (emphasis courtesy Secretary Heumann) considered for students with disabilities.” However, she emphasized that: “At the same time, we fully appreciate and support the important role of other options on the continuum for some students”, and that: “the continuum of alternative placements is an integral part of the regulations.” (Heumann, 1994).

Director Hehir wrote that Part B of the Individuals with Disabilities Education Act recognizes “that regular class placement may not be appropriate for all children” and that “each public agency [is required] to make a full continuum of alternative placements available to meet the needs of children with disabilities for special education and related services” (34CFR S 300.552(b)) (Hehir, 1994).


As an educational advocate for almost twenty years, and as a parent, I have worn two hats. My oldest son is developmentally disabled (Down Syndrome), and my younger son is learning disabled (Dyslexic/ADD). I have worked with and for The ARC, TASH, COSAC, and the Down Syndrome Congress, as well as I.D.A., N.C.L.D., L.D.A., and CH.A.D.D. Although the issue of inclusion has appeared to polarize the positions of advocates for the learning-disabled from the advocates for the developmentally disabled, I must say that all the hats I have worn are white. Historically, a learning disability has been considered an invisible disorder where those affected had to fight for the individual attention they needed and deserved. On the other hand, persons with developmental disabilities (DD), because they stood out as being different, had to fight to keep from being isolated away from the mainstream. Now that the buzz word is “inclusion,” individuals with learning disabilities (LD) are continuing to fight for recognition of what makes them unique and individuals with developmental disabilities (DD) are continuing to fight for recognition of what makes them the same. There is no doubt that inclusion offers justified hope that has so often eluded the DD and justified fear on the part of the LD that they will once again become invisible.

Like the REI [Regular Education Initiative], which grabbed the field’s attention nearly a decade ago, the newer term [inclusion] seems to defy straightforward interpretation. And like the REI, this is partly because “inclusion” means different things to people who wish different things from it. (Fuchs & Fuchs, 1994)

Those who push for full inclusion adhere dogmatically to the belief that:

The rational for educating students with severe disabilities in integrated settings is to ensure their normalized community participation by. (a) the development of social skills. (b) the improvement in the attitudes that non-disabled peers have.and (c) the development of positive relationships. between peers. (Fuchs & Fuchs, 1994; Gartner & Lipsky, 1987; Snell, 1991).

Those who adopt a more moderate approach, including the Learning Disabilities Association (1993), the National Joint Committee on Learning Disabilities (1993) and the International Dyslexia Association (1994), claim:

  • that students with learning disabilities sometimes require an intensity and systematicity of instruction uncommon to general education classrooms. (Fuchs & Fuchs, 1994).

The “Non-Academic Benefit Test” applied in the Holland case appears to have been developed in response to arguments presented by advocates for the DD. It poses a question that, for this focused constituency, is impliedly rhetorical; i.e., is the self-contained environment more conducive to developing social skills, communication skills, and self-confidence? However, for a LD child, who confuses being different with inferiority and stupidity, an experience away from the mainstream with others similarly situated may be just what is needed to develop “self-confidence,” “communications skills,” and “social skills.”

Now that he is grown, my oldest son is totally integrated in the adult community in which he lives and works (three jobs). Although there is no effort to avoid others with disabilities, he is so busy that he has no need to seek out programs that would provide experiences to groups of persons with disabilities, e.g., dances, canteens, camps, Special Olympics. He was provided with limited mainstreaming opportunities in school and was in self-contained classrooms throughout his educational experience. He learned reading, writing, arithmetic, and a variety of vocational skills consistent with his potential. He has always been motivated and there has never been a reason to question his self-image. There were challenges to overcome (Dickman, 1990), but he never had cause to feel inferior or experience chronic failure. He is the happiest, most well adjusted person I know. I question if my son’s life could or would be better today if he were in a regular education class where everyday the blackboard contained information beyond his comprehension and every other student read better, spelled better, understood better, and communicated better. The regular education student may indeed be better off for the experience and come to appreciate him as an individual, but at what cost to his academic achievement and self-esteem?

Roberts and Mather (1994), in a comprehensive and articulate article on inclusion, point out that the federal law (34CFR S300.552) mandates a full continuum of alternate placements and qualifies the indiscriminate use of regular classes “to the maximum extent appropriate.”

Roberts and Mather (1994) question the basic assumptions behind the full inclusion movement:

  • (a) integration fosters acceptance of the individual both by the teacher and other students; (b) teachers receive more support (e.g., procedural, strategic, and administrative); (c) the general curriculum is suitable for all students; (d) teachers are equipped with strategies, materials, and time needed by the integrated individuals; and (e) all individuals. can be successfully taught in regular classrooms.

Their analysis suggests that these assumptions may not always be met for students with severe LD. They cite, for instance, many studies (seventeen) that find that inclusion does not equate to increased social acceptance for some students. “Individuals with LD are often identified by peers as among the most unpopular students in the regular classroom.” (Roberts & Mather, 1994).

A student who is not viewed and does not viewed himself as part of the culture of the school cannot be successfully included. If the student sees himself as no more than a stain on the fabric of the culture of the school, he is marginalized and psychologically damaged by the experience. In such a case, inclusion is a pathogen with predictably negative consequences. As distinct from supervised social experiences, research has shown that popularity with childhood peers depends on effective play skills and that there is a relationship between the absence of play skills and social isolation (Gottman, Gonso & Rasmussen, 1975; Hartup, Glazer & Charlesworth, 1967; Kelly & Hansen, 1987). Meaningful social interaction requires the ability to parallel play during early pre-school years, (Kelly & Hansen, 1987), progressing to a mutual sharing and exploration, unstructured, unsupervised cooperative play, and helping. Should a child not engage in meaningful social interaction in unstructured, unsupervised environments he/she risks social avoidance, neglect, rejection, or even mistreatment by peers (O’Connor, 1972). If these conclusions have been developed from research on children without apparent disabilities, how much more robust would be the findings if the research was confined to children with disabilities? The structured and supervised experience of educational inclusion does not correlate well with social integration.

On the other hand, my younger son is going into the eighth grade and has had two highly successful years as an included student. His program consists of Resource Center for study skills and in-class support with a special education certified learning specialist in math, social studies, and science. He is a highly empathetic child with good communication skills. He has many friends, both in special ed. and the mainstream. He feels good about himself and sees himself as different, not disabled. I question whether he could have learned more or be as emotionally intact if he had been segregated in an environment that emphasized his differences, limited his challenges, and manipulated his expectations.

I predict that “inclusion” will pass through like a spring storm, all lightening, thunder and bluster, causing apprehension for some and hope for others. In the long run, the storm of inclusion will leave in its wake successful experiences with in-class support strategies, collaborative teaching methods, and a more sensitized regular education environment. Inclusion is neither an evil plot of a budget driven bureaucracy nor is it an educational panacea. Inclusion is simply the least restrictive environment at one end of a continuum of special education options.


Daniel, R.R. v. State Bd. Of Education, 874 F.2d 1036 (5th Cir. 1989).

Dickman, J. (1990). Courage in Adversity: My Brother Dick, Exceptional Parent,Jan./Feb., 52-54

Fuchs, D. & Fuchs, L.S. (1994). Inclusive Schools Movement and the Radicalization of Special Education Reform. Exceptional Children, 60, 294-309.

Gartner, A. & Lipsky, D.D. (1987) Beyond special education: Toward a quality system for all students. Harvard Educational Review, 57, 367-395.

Gottman, I.M., Gonso, I. & Rasmussen, B. (1975). Social interaction, social competence and friendship in children, Child Development, 38, 1017-1024.

Greer v. Rome City School District, 950 F.2d 688 (11th Cir. 1991).

Hartup, W., Glazer, I. & Charlesworth, R. (1967). Peer reinforcement and sociometric status, Child Development, 38, 1017-1024.

Hehir, I., Letter to Kohl, 20 IDELR 1465 (OSEP 1994).

Heumann, J. E., Letter to Spratt, 20 IDELR 1457 (OSERS 1994).

Holland adv. Board of Educ., 786 F. Supp. 874 (9th Cir. 1994).

J. E. v State of New Jersey, 131 N.J. 551 (1993).

Kerkam v. McKenzie, 862 F.2d 884 (D.C. Cir. 1988).

Kelly, J.A. & Hansen, D.J. (1987). Social Interactions and Adjustments, Handbook of Adolescent Psychology, 131-146.

Lascari v. Board of Educ., 116 N.J. 30 (1989).

Learning Disability Association of America (1993). Position paper on “Full Inclusion” of ALL students with learning disabilities in the regular classroom. LDA Newsbriefs, 28 (2), 3.

National Joint Committee on Learning Disabilities (1993). A reaction to “Full Inclusion”: A reaffirmation of the right of students with learning disabilities to a continuum of services. LDA Newsbriefs, 28 (2), 3.

Oberti v. Board of Educ., No. 92-5462, slip. op. at 17 (3rd Cir. May 28, 1993, as corrected, June 23, 1993).

O’Connor, R.D. (1972). The relative efficacy of modeling, shaping and combined procedures, Journal of Abnormal Psychology, 74, 327-334.

The Orton Dyslexia Society (1994). Position Statement on Inclusion. Perspectives, Special issue on inclusion, this issue.

Roberts, R. & Mather, N. (1994). The Return of Students with Learning Disabilities to Regular Classrooms: A Sellout ? In Press.

Roland, M. v. Concord Sch. Comm., 910 F.2d 983 (1st Cir. 1990).

Roncker v. Walter, 700 F.2d 1058 (6th Cir.) cert. Denied, 464 U.S. 864 (1983).

Rowley adv. Board of Educ., 458 U.S. 176 (1982).

Snell, M.E., (1991). Schools are for all kids: The importance of integration for students with severe disabilities and their peers. In J.W. Floyd, A.C. Repp, & N.N. Singh (Eds.), The Regular Education Initiative: Alternative perspectives on concepts, issues, and models (pp. 133-148). Sycamore, IL: Sycamore