Season 2: Episode 12: Mainstreaming Children with Disabilities

What is mainstreaming? In previous generations, most students with special education needs were taught apart from their neurotypical peers, in self-contained classrooms, separate facilities, or even state institutions. Decades of research, however, showed that children with disabilities do better when included in the general education classroom and exposed to peer modeling. Now, school districts are obligated to educate children in the least restrictive environment, also known as inclusion or mainstreaming. But mainstreaming special education students can be complicated and challenging, even for experienced educators.

In this episode, Lisa and Miriam explore a recent surprise ruling from the Sixth Circuit Court of Appeals that addresses mainstreaming and highlights the potential legal liability that comes with using self-contained settings for children who can be served in the general education classroom. What are the challenges teams face when it comes to determining a child’s least restrictive setting? Which factors must districts consider when deciding whether inclusion or a self-contained classroom is best? What benefits must a general education setting provide to a child with severe disabilities to qualify as a least restrictive environment, and what does that instruction look like practically? In this episode, we explore these complicated questions through the lens of the Sixth Circuit’s recent ruling in LH v. Hamilton, and consider the wide-range of implications for school boards, administrators, and teachers.

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Lisa: Welcome back to Class Act: Updates in Education Law. I’m Lisa.

Miriam: I’m Mariam.

Lisa: And we are attorneys at Walter Haverfield in Cleveland, Ohio. We practice school law and every now and then, we get together to talk about the most recent legal developments specific to education. We want to talk about things that are relevant to school boards, administrators, teachers, really, anyone who works in public education. Today, we are going to focus on a new decision issued by the Sixth Circuit. Just in August, LHB Hamilton; it is out of Tennessee, it is a special education decision that has a wide range of potential implications for teams when they’re considering a child’s least restrictive environment for placement. This will be most relevant to our Ohio, Kentucky, Michigan, and Tennessee listeners since you are specifically in the Sixth Circuit but we could see this having implications, also nationwide as courts look to other courts for guidance.

Miriam: Absolutely. Lisa, you just mentioned least restrictive environment. Can you just remind our audience what that is?

Lisa: Yes, absolutely. School districts are obligated to provide special education students, those who qualify under the IDEA, Individuals with Disabilities Education Act, with a free appropriate public education, meaning that these children are entitled to especially designed instruction and related services. Another important part of that education is where the child is educated, so really, the specific location. It’s not only about what the child’s learning but where that learning is taking place. We talk about a least restrictive environment or sometimes we refer to it as LRE. It’s basically the concept that the districts are obligated to educate children alongside their non-disabled peers to the maximum extent possible and appropriate. This is generally referred to as the LRE mandate and it’s basically looking at having a child with a disability exposed to their general education peers throughout the day and through their learning, as much as practical.

Miriam: Yes, I think that we see this specific issue. Sometimes it’s called mainstreaming, sometimes it’s called inclusion. It’s a point of contention. I think that parents and school districts often disagree, like in this case, about what the child’s least restrictive environment is. Some parents want their children to be more mainstreamed and some parents want a separate environment. Let’s talk about the facts here. This was a family in Tennessee who had a child with Down syndrome. He qualified as intellectually disabled and he had an IEP but he attended regular classes for kindergarten, first grade, and second grade as well. He repeated first grade. His parents, according to the case law that we reviewed, these parents were very involved and they had very high expectations. They wanted their little boy to be challenged, they really wanted him to be educated in a general classroom setting and with a standard curriculum despite his intellectual disabilities.

Lisa: Right. Starting in second grade, the team acquiesced to parents and developed an IEP that kept him in the general education classroom but I think from the cases, they were starting to really see that gap develop and really him struggling to keep up with the curriculum. There were some areas, I think, like his basic reading skills that were close to grade level but then when you looked at more reading comprehension, you were really seeing the gap and starting to see that he couldn’t keep up with the peers.

Miriam: I think starting in second grade, that’s when the conflicts developed between the parents and the team. Initially, the team said, “Okay, we’ll go ahead, we’ll do what you want. He will be in the general education curriculum. We will have IEP goals that essentially mirror everything that second graders are supposed to do.”

Lisa: Right. To give you a better picture of what this looks like, what I’m envisioning is this kid is in the general second-grade classroom and has an intervention specialist or special education teacher, whatever terms you use in your state, going into that classroom to provide the service and support, versus we see other models where children are pulled out or in, what we call, maybe a self-contained classroom or unit within the school for their core curriculum and maybe mainstream and go into the second-grade classroom for specials, art, music, PE. I’m getting the picture that this child had the majority of their academics still literally in that second-grade classroom.

Miriam: Yes, and In second grade when he had these high goals, he did not make a lot of progress on those goals. His behavior became more disruptive, depending on the level of work that he was asked to do.

Lisa: To solve that disruption, it sounds like the staff worked to move him into his own space but still within the classroom. It sounded like he was functioning almost at his own pace with his support staff, kind of receiving services, whether he was in that classroom or not in that classroom. In the implication of what was happening, that probably didn’t make a whole lot of difference. I’m just trying to paint the picture of he was kind of just functioning in isolation within that classroom. I don’t know how much he was actually engaging in the regular lessons and activities with the students.

Miriam: I think, during that second-grade year, there were, in the beginning, the teachers tried to engage him in the actual curriculum and that’s when they saw the behavior problems because those goals were too high, he was not able to make progress and he just became more disruptive. Later on, during that second-grade year, they said, “Okay, we’re going to teach him material at his level. So, the other kids might be doing double-digit addition and subtraction. We’re going to be looking at a one-to-one correspondence, making sure that you know that the number three represents three actual things.”

Lisa: I think they basically attributed those behaviors to his academic level of functioning. I’m not sure how much they really delve into what was really behind the behaviors and how they could fix them, other than looking at that academic component. I didn’t see reference related to a functional behavior assessment being done or bringing in any behavior specialist to help find out ways that they could more actively have him engaging, which you’ll then find in the court cases, that they do know. You know, there may have been other methods and means within that classroom to include him that the team wasn’t actively pursuing but not being in the case. We don’t know exactly what that looked like, practically speaking.

Miriam: The tensions between the parents and the team escalated. At the end of that second-grade year when they were planning for this little boy’s third-grade year, the district said, “He needs a self-contained classroom,” which in that district was called a comprehensive development classroom, and, “This self-contained classroom is going to be at another school, in another building using an online program.” The parents were really displeased. They were very unhappy with that. They said, “Look, there’s not going to be typically developing peers there. There’s no standard curriculum. You guys are just using an online program.”

Lisa: I have to say, I kind of wonder, again, not knowing the insides and outs of this case of what did the district have to offer. Did they have any type of program like this in the building, like his home building, and would parents have been so contentious with that in incorporating it into his day, compared to them proposing a placement at an entirely new building where he would not be with the peers that he knew. We just don’t know how that district was set up. We have districts that do have them within every building, we have districts where you have them in a more centralized location. We just don’t know what that, ultimately, looked like there.

I do kind of wonder if it was so much of the programming versus literally, you’re taking this kid from the peers that he knew and then looking to put him just somewhere completely different.

Miriam: I agree with that. I think there’s an expression that really applies to this case and it’s, “Bad facts make bad law.” Even though this child would have been in this self-contained classroom for only about half of his day, and he still would have had specials, music, art, lunch with non-disabled peers. The parents really felt strongly about him being in the general education classroom the entire time. What they did is they removed– after they received this proposed IEP that included placement in the self-contained classroom, the parents removed the child and placed him in a Montessori school and they paid for a one-on-one aide for the Montessori School. I must say, that’s very different because usually, parents, in our experience, I’m sure, parents who place their child at a separate facility typically choose a program that is geared towards the disability that that child has, whether it’s a school for children who have autism or school for children with learning disabilities. He had the parents essentially took him and put him in a general education classroom in a Montessori building and they paid for the one-on-one aide.

Lisa: What I find interesting, kind of twofold there, we don’t see this parental seeking out a Montessori very often, right, in our cases, but we also have a lot of different programs in our state that are other options. I do kind of wonder in this location in Tennessee what did the parents have at their disposal to look at. But the other thing for those that don’t know a lot about Montessori, it really is kind of a child-centered approach in a very individualized approach anyways. I’m guessing that’s part of what they were seeking out, and then by providing the aide that helps support.

Miriam: That probably appealed to them a lot, that freedom of exploration and inquiry and flexibility as well.

Lisa: Right, and with all the students kind of working at their own pace, it certainly makes the child with the disability fit in a little bit more into that picture because they’re just doing kind of the same thing their peers are doing. It doesn’t look very different. I could see the appeal to that to some degree from a parent perspective. They did take this through the administrative process and then ultimately to court.

Miriam: What the parents ultimately sued for was for the Montessori tuition and for the aide and …..

Lisa: I think the cost of the aide.

Miriam: …the cost of the aide. Another question that came up is how much progress the child made at Montessori. That was in dispute because although his national scores on the standardized tests really went up very dramatically, it was unclear what supports or modifications he received on those standardized tests. You know, whether it was really given in a standardized setting, in a standardized format. The report cards from the Montessori school were very general. The district’s assessments after that third-grade year were very different and showed that the little boy was still working on a kindergarten level for math and was also behind in reading and definitely reading comprehension.

Lisa: Right. So, on the face of it, it wasn’t like he completely closed the gaps and was performing at grade level.

Miriam: No, not at all.

Lisa: What’s interesting is through the administrative process and then in the lower court, the lower court actually had found that the district did not educate this child in the best environment that they really should have mainstreamed more versus proposing that placement in the self-contained classroom in a different building. However, the lower court did not award parents the tuition because there’s also a standard when you seek tuition or reimbursement for a unilateral placement that you also have to show that that was an appropriate placement. That was the parents’ burden basically, when they were in court and through the administrative process.

The lower court had said, “Well, parents, you didn’t meet that burden to show that the Montessori placement was appropriate.” However, the Sixth Circuit has taken a very different approach and has said, “Actually, yes, it was appropriate.”

Miriam: The lower court specifically said, “Look, this Montessori placement had teachers who were not intervention specialists. They didn’t have specific training on children with disabilities, children with Down syndrome. This is not a placement that we’re going to require the school district to reimburse you for.” When the parents appealed to the Sixth Circuit, the Sixth Circuit agreed with the lower court that the child should have been mainstreamed and should not have been placed in a self-contained unit. But the Sixth Circuit also ruled for the parents on the tuition reimbursement issue and ordered the district to compensate parents for the tuition that they paid, as well as for the cost of the aide. This is, I think, very controversial decision and a challenging one for school districts. Let’s talk a little bit more, Lisa, about the mainstreaming issue. How did the courts decide that this child should be mainstreamed? What does mainstreaming look like for children who have intellectual disabilities?

Lisa: Well, it might not just only be for intellectual disabilities, there might be a variety that makes it challenging to educate a child in the general classroom all the time. But what’s interesting is the court in the Sixth Circuit isn’t really coming up with necessarily a brand new standard. They’re actually referencing a standard that’s been in place for a while. This one just really highlights it for a group of students, I think, that school districts are pretty often looking at educating either out of the classroom for a good majority of the day, often somewhat hesitant to be using mainstreaming and inclusion and doing those supports in the general classroom. We look at a three-component standard, really, for determining the least restrictive environment or whether the child should be mainstreamed. I think it’s also important to point out before we dive into this standard that the court really took a somewhat controversial approach to looking at this analysis and saying that there is, “Yes, your FAPE analysis that we talk about often with special education in the district’s obligation to provide appropriate education, but then your LRE and environment analysis is completely separate.” They’re saying, “You need to analyze those as two separate things.” This standard that I’m about to discuss is really just specific to that literal placement. Not what the services look like, not the intensity, not the frequency, this is really just specific to the place.

Miriam: Also, I think that nationally, we know that the rallies standard requires school districts to mainstream kids to the maximum extent appropriate. Children are allowed to be separated only when the nature or severity of the disability is such that education and regular classes, with the use of supplementary aides and services, cannot be achieved satisfactorily. That’s the rally standard and applies nationwide.

Lisa: Right. That’s kind of just almost your default. You’re basically going to assume that a child can be educated in the general classroom and then we now have– Well, we reiterate these three categories of when you may look otherwise.

Miriam: The exceptions.

Lisa: The exceptions. These are going to be when a child would not receive a benefit from mainstreaming. Marginal benefits from mainstreaming are outweighed by a separate setting that could not be provided in a non-segregated setting, or where the child would be a disruptive force in the non-segregated setting. But keep in mind that these are really, really stringent in how the court’s interpreting these.

Miriam: This was a difficult decision. This was a difficult decision for school districts. The first point that you just brought up where a child is not receiving a benefit from mainstreaming, how much benefit is enough? According to the Sixth Circuit in this decision, just some benefit was enough. This child, even if he had received some benefit in third grade and being in a general education classroom, that would have been enough to not place him in a self-contained unit. The court kind of delved into this substantially, talked about marginal benefits from mainstreaming and whether those are outweighed by a separate setting that could- and whether those benefits could be provided in the mainstreaming environment, in the inclusion environment. Another issue the courts will look at is whether the benefits of a separate setting can be provided in the mainstream environment in the general education classroom. A part of the issue is that this child was still very young when this conflict came up. He was a second-grader and in second grade- everybody’s learning to read in second grade. He was learning to read in second grade. I think that this case and possibly, this decision would have looked very different if we were talking about a high school student, a junior with a intellectual disability who was- and if the parents wanted that student to be in a literature analysis class in his junior year.

Lisa: I think you’re right. I think part of the thing, again going back to the issues of the facts in this case, we’re looking at a child for their placement for second or third grade, even though by the time that it’s got to the Sixth Circuit, the student-

Miriam: Was 15.

Lisa: – right. We really were looking at a developmental time where he did have some skills that were close to grade level, even though arguably, the ones he really needed developed weren’t, but you also have to look at the social-emotional impact where certainly, he could get some benefit from being around his peers in the classroom for those reasons. Was he also picking up some academic skills incidentally from observing how other peers were applying those skills? I can see that argument pretty clearly for the grade level that he was at this point, whereas how much that gap would have really widened and developed down the road, it may have looked-

Miriam: Looked differently.

Lisa: – very much.

Miriam: It may have looked differently. I think what really kind of stood out for me here is that the court emphasized, the Sixth Circuit emphasized that even if a separate setting is academically better for a child, the schools still may need to choose a general classroom just for the mainstreaming benefits. That’s really a perspective that may be difficult for teams to fully sign on to.

Lisa: Right. Well, and especially with this one, we’re kind of looking at the two extremes, right? He was in pretty much an inclusion model for it sounded like really, the majority of the day versus what was proposed, the district claimed that about half the day, he was with the peers in the new building. You’re going from, with peers all day pretty much to a totally new setting where you’re not with those same peers. You’re now with a small classroom with just your disabled peers for your academics. We kind of went from one extreme to the other is how it appears, at least.

I would argue that a lot of our districts that we work with do have a little more of a continuum. I would hope that they would take the steps to move through that continuum before jumping from one proposal to the other. I saw that as somewhat significant here, but I do think the court statement about this academic component, even though another placement might be better for academic reasons, that you still might need to consider mainstreaming instead. I do. I think that’s astounding in some fashion and somewhat kind of contradictory to education principles and, well, we’re really focused on academic progress and how do we make that happen when we know there’s a better setting to do it in but we need to default to the mainstreaming inclusion setting for other reasons.

Miriam: As we were talking before, school districts are obligated to provide free appropriate public education and they’re also obligated to provide that in the least restrictive environment. I think this case kind of sets up a collision between those two ideas. I think school districts might find themselves in a situation where they’re like, “Okay, well, the free appropriate public education for this child, the placement where he can make the most progress on his goals might be a self-contained classroom, but according to what the Sixth Circuit emphasized here, we are going to choose the general education classroom instead for the mainstreaming benefits.”

Lisa: Miriam, I think that’s absolutely right and I think that’s where teams are going to have to think a little bit outside the box of how can they collide the two concepts, but I do think we’ll also be looking to the courts hopefully, eventually, to clarify a little bit of that because I do think you have two court concepts that do collide, that contradict for some students. If you just take this on its face, are we looking at districts only being able to provide unit classrooms and support only for our medically fragile students and students who really can’t communicate effectively at all? That would be definitely a shift from what I think those-

Miriam: Core practice.

Lisa: – districts are doing. I’m not certain that that is what this court intended but you can’t be certain. I think there’s a little bit of contention too with the concept that the court took about you have this FAPE standard and deciding what an IEP needs to look like and with the services and goals and all of that includes needing education expertise, but then we take this look at LRE and say, “Well, placement, you don’t really need to think about your level of educational expertise to make that decision.” It’s a strange concept.

Miriam: Yes. The Sixth Circuit did have a line in there about how the educator’s experience comes in, the team’s education experience comes into play when they are developing goals and objectives in terms of a free appropriate public education but that the similar expertise is not particularly needed when deciding on the least restrictive environment. I’m sure that was surprising, at the very least, to many educators.

Lisa: Absolutely.

Miriam: Just before we finish up, what are some of the takeaways? What are some things that school district teams should be doing in light of this decision?

Lisa: Well, I think the first one is really reviewing what your continuum of services look like when you are considering a separate setting for a student, especially if it’s a contentious situation and you and the parents aren’t seeing eye-to-eye. Also, look at that continuum of service to see where you can make improvements too. Can you improve your push-in on inclusion services? Even can you improve your pull-out services that still allow the child to participate in the general classrooms but just get pulled out into a more small group or individualized setting for the really key skills as opposed to whole classes? Really look at that as opposed to taking a focus of what units or self-contained programs you are offering. And if you do have those self-contained programs, how can you get those children with their peers…

Miriam: With their peers…

Lisa: …..more frequently and in beneficial ways, not just, “We’ll send them to a special, they are in the same classroom together.” How can you actually get them interacting to benefit from that exposure, I think is important too. And another thing to highlight, we didn’t talk too much about it, but the court did take issue with the curriculum in program.

Miriam: The self program?

Lisa: Yes, the self-contained program apparently was going to use an online program that we won’t really dive into, but they argued that it was not peer-reviewed, research-based and it didn’t align to general academic standards and that was problematic. Definitely, be reviewing the programs that you are using in your units and in your other services too and making sure that they do align to state curriculum and aren’t utilized to replace it. So you may use an online program but maybe, it’s more used in a supplemental nature as opposed to being the core way you’re providing that academic instruction. I also think it’s really, really important that we’re teaching teams that even if a separate placement is academically preferable, mainstreaming is likely more optimal unless the student will absolutely not receive benefit from it. Really getting teams in that frame of thought of, “How do we adjust and modify support the child in the regular education setting,” versus kind of jumping to, “They’re not progressing. We need to pull them out to provide that,” which I think is sometimes the go-to thought process is in a small group setting, in a one-on-one setting, it’s easier to adapt, it’s easier to change and provide, especially designed instruction in that way and I think it’s just a shift of thinking we need to look at too.

Miriam: Right. I think this is probably going to be the most difficult aspect of this for school districts and for teams.

Lisa: Absolutely.

Miriam: I think that if we’re thinking about it, if we’re imagining mainstreaming as everybody in this seventh-grade classroom is doing pre-algebra and Johnny is sitting in the same physical space but just in the back of the classroom and he’s working on touch points math and that’s just inclusion by virtue of him being in the same four walls, that’s probably difficult for districts to swallow and it’s not a particularly helpful model. But these are conversations that you should be having with your teams. What does inclusion look like when a child’s abilities are so different from those of his peers?

Lisa: Absolutely.

Miriam: Anyway, thanks for joining us today. We don’t have any solid answers for you on these questions.

Lisa: But hopefully, we gave you some things to think about and be talking about with your team and looking out at options out there.

Miriam: Next time, we will talk about dual enrollment programs and that’s where students attend both college and high school and get credit for both college and high school. We will also discuss how that may affect students with disabilities. Have a great day. Don’t forget to leave us feedback and rate us on iTunes, Stitcher or wherever you get your podcast. Take care. Thanks for listening.

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matter should be taken only upon advice of legal council. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.