Input from Legislation and Litigation

Legally, integration is a civil rights issue, not a philosophical or educational trend. Federal courts have made clear that if a child can "feasibly" be integrated, segregation is illegal, regardless of the school district's philosophical perspective on integration. (Ringer & Kerr, 1988)

As mentioned previously, parents of children with disabilities, advocacy groups, and others became more vocal and politically active in the 1950s and 1960s. Court decisions and legislative efforts began to change the way America treated its disabled. Their efforts were significantly strengthened with the passage of the Education for All Handicapped Children Act (PL 94-142). This act, signed into law by Gerald Ford in 1975, embraced two hallmark components for children with identifiable disabilities. It mandated that all children were to be afforded a "free appropriate education." Further, this public education was to be delivered in the "least restrictive environment." Since then, schools, parents, and others have struggled with finding the balance between the appropriateness of educational services and the location/environment in which those services are found. Essentially, inclusion is primarily an issue addressing this second component of least restrictive environment.

The Individuals with Disabilities Education Act of 1990 (PL 101-476), which updated PL 94-142, further strengthened these two components by strongly encouraging that students with disabilities be educated in their home-school, regular-education classroom whenever possible. Specifically, it mandates:

  • 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 non-disabled;
  • special classes, separate schooling or other removal of children with disabilities from the regular educational environment occur only when 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; and
  • the educational placement of each child with a disability is as close as possible to the child's home.

(Individuals with Disabilities Education Act of 1990, §300.550, §300.552, 20 U.S.C. §1412 & 1414)

It should be noted that the law does not abolish all settings except the regular classroom. Indeed, it requires more restrictive alternatives when the regular classroom has been shown to be inappropriate, thus the need for a continuum of placement options from the regular classroom to institutionalization. However, the intent of the law is that the rightful place for educating students, regardless of special need, is with neighborhood peers in a regular education classroom setting unless that setting is inappropriate. "In plain language, these regulations appear to require that schools make a significant effort to find an inclusive solution for a child" (Rogers, 1993, p. 2). But just how far are schools required to go? In recent years, several decisions indicate that the courts are giving more serious consideration to the inclusion of children with even severe disabilities in mainstream education. However, none of the decisions has ordered full inclusion, and several have alluded to the possibility that mainstream education may not be appropriate as a given student advances through school. Currently, the legal system is depending heavily on the reasoning in Daniel R.R. v. State Board of Education (1989) to make decisions regarding inclusion.

Daniel R.R. was a six year-old boy who had been identified for special education because of moderate retardation. His developmental age was between two and three years. He was placed in a pre-kindergarten for half a day and a special education class for half a day. However, when Daniel's kindergarten teacher reported that he was not succeeding because he required almost constant attention and was not mastering skills, the school wanted to remove Daniel from the regular classroom and place him in special education full time. The parents protested the change in placement and requested a hearing. Because Daniel was found to be receiving very little educational benefit from the regular class and was diverting too much of the teacher's time, the hearing officer found for the school district. The case was taken to the district court, which affirmed the hearing officer's decision. The parents then appealed to the Fifth Circuit Court of Appeals. In deciding the case, the Circuit Court developed a two-pronged test to determine if the district's actions were in compliance with the Individuals with Disabilities Education Act (IDEA):

  • Can education in the regular classroom with the use of supplemental aids and services be achieved satisfactorily?
  • If it cannot, has the school mainstreamed the child to the maximum extent appropriate?


Because the court found that the district had tried several alternatives to accommodate Daniel in the regular class, it determined that the district had complied with the mainstreaming preference expressed in IDEA and affirmed the decisions of the hearing officer and the district court.

The Daniel R.R. test has been used to decide whether a school district is meeting the letter and the spirit of the IDEA's stated preference for mainstreaming in such highly visible cases as Greer v. Rome City School District (1991), Oberti v. Board of Education of the Borough of Clementon School District (1993), and Board of Education, Sacramento City Unified School District v. Rachel Holland (1992, 1994). Particularly in the latter decision, the court further refined the first "prong" of the Daniel R.R. test to include four factors that schools must consider before removing a student to a more segregated setting:

  • academic benefit-To what degree is the child benefiting academically from placement in a regular classroom setting?
  • nonacademic benefit-To what degree is the child benefiting in nonacademic ways from placement in a mainstream setting (e.g., language development, appropriate behavior models, social development)?
  • classroom management-To what degree is the child disruptive to other students or to what degree is the teacher's time being occupied with the student with a disability to the detriment to other students? [The issue of employing supplemental aids and services (equipment, technological, and human) must be taken into consideration.]
  • cost-What is the financial burden placed on the school district relative to the mainstreamed child versus a more segregated placement?

    It appears that the current wisdom of the courts is relying on schools to weigh and balance these factors in making placement decisions "in good faith." Based on the facts of these cases and the resulting decisions, school districts may improve decision making or, in some cases, simply strengthen their positions in the case of disputes through consciously attending to the following considerations:
  • What modifications and supports in a regular class have been considered and/or tried before a decision is made to segregate a student with disabilities from mainstream education?
  • When a child is removed from the mainstream, has each subsequent possible placement in the continuum of services been considered and/or tried in order that the child is as close to the mainstream as possible?
  • Are physical, emotional, and social hardships being placed on a child who must move back and forth between the mainstream and special education?
  • Are there identifiable and coherent relationships between a student's IEP goals, placement, and activities?
  • What benefits can be provided in special education that cannot be provided in the mainstream?
  • What are the underlying assumptions regarding the kind of instruction identified as needed for a child to be a successful participant in life? Are these assumptions based on the highest expectations for the child?

Next Page: So What's A School Leader To Do?

Published in Issues ...about Change Volume 4, Number 3, Inclusion: The Pros and Cons (1995)