History Of Special Education Law Essay Writer

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Inclusion in the American Public Schools:
The History, the Law, the Controversy

Ima Sample
7U: 100 Mainstreaming the Exceptional Learner
March 2, 200x

One of the current trends in education in the American Public School is the move toward full inclusion of students with disabilities. There has been a rapid rise in the number of students with disabilities who are spending their school day in a general education classroom under the guise of full inclusion. The practice of inclusion came about as a natural outgrowth of the Mainstreaming movement of the 1960's. Inclusion is purported to be based on the rights of the students and the social benefits that they receive from being in a general education classroom. There are many who see this as a solution to the problem of how to best educate children with disabilities. On the other hand, there are those who believe that this practice is based solely on the feelings of what the inclusionists see as socially correct, and not on any real benefit to the students involved. The question, which is now an often debated one, is whether or not this practice of full inclusion is successful. Is including children with special needs in the general education classroom beneficial to their education? Since we cannot expect to "cure" or "fix" these kids who have disabilities, how can we educate them to their fullest capacity? The goal of educating these students with disabilities should be no different than the goals of educating the students who are in general education, which is that we should educate them in such a way as to help them realize their full potential. This is where the problem and controversy arises in regard to students who have disabilities; how best to do this? To fully understand the issue of inclusion in the American Public School, we must examine the history of inclusion, the laws regarding the education of students with disabilities, and what some of the experts in education have to say about it. Only after a full examination of the facts can we decide for ourselves which is most beneficial and appropriate in the education of students with disabilities today: to fully include students with disabilities in the general education classroom or not.

Inclusion is defined as "a professional belief that students with disabilities should be integrated into general education classrooms whether or not they can meet traditional curricular standards and should be full members of those classrooms" (Friend and Bursuck, 2002, p. 505) . Just how did the practice of inclusion come about? Modern day special education began in the 1960's after several hundred years where we saw thinking change from the time prior to1800 where the disabled were thought to be "demon possessed"; to the time in the 1800's where public thinking was largely based on the misinterpretation of Darwin's Theory of Evolution and the disenchanting effects of the Civil War; to theearly 1900's where the work of scientists such as Freud, Kanner, and Binet began to impact the public thinking; to the post-war era of the 1950's when special education was shaped by the work of Bettleheim, Redl and Wineman, and Bower and many categories of disabilities became identified. From the 1960's through 1985 we saw a real take off in public funding, the beginning of many organizations to assist the disabled, and the emergence of a number of conceptual models of special education. Modern special education in the 1960's was from the point of view that because students with disabilities were so different in both their problems and abilities, that it did not make sense to treat all of these students the same. Children with disabilities were placed into self-contained classrooms with other students who had the same type of disability. The programs were categorical and the teachers were those with a degree in special education who had a specialty in a specific area of disabilities. The idea was to get these kids in school and get them in a program tailored specifically to their disability. In the early 1970's parents wanted to be assured of a suitable education for their children, so Public Law 94-142, the Education for Handicapped Act (EHA) , was passed which set guidelines for the services of special education (Friend and Bursuck, 2002) . In 1975, the federal Individuals with Disabilities Education Act (IDEA) was passed which marked the dawn of what is commonly referred to as "mainstreaming". This was a practice designed to get the students with disabilities out of their categorical classrooms and back into general education for "specials" (Music, Art, and Physical Education) , but for the most part the students were still separate and segregated within their schools. Proponents of mainstreaming were of the mind that social behavior does not occur outside of social contact and therefore, students with disabilities should be with their non-disabled peers. This involved the physical integration, functional integration, and social integration of the students. So, mainstreaming went from a time where we just wanted to get these kids in school, to a time where we mainstreamed them for "specials", to a time where they were mainstreamed to become a part of the school. Thus the argument became that if we can include these kids with disabilities some of the time, why not include them all of the time? This was the basis for our current trend toward full inclusion of all students with disabilities, regardless of their disability or abilities. Full inclusion is based on the rights of the students to be in the general classroom and the perceived social benefits that being in that classroom provides. There is, however, a difference in the social integration we saw in early mainstreaming versus that which we see in today's inclusion practices; the social integration of the 80's was done under highly controlled situations, while the social integration of full inclusion is not controlled. Understanding where the trend toward inclusion comes from is only a factual beginning in the understanding of whether or not inclusion is appropriate in the American Public School of today. What does the law have to say about the practices of inclusion? Have there been any tests of the law? How can this knowledge shape what is happening in our schools?

One can find commentary on the laws regarding inclusion on a website of the University of Northern Iowa which includes IDEA, passed in 1975, which states the current federal mandate regarding the laws on inclusion in the American Public School: "Each State must establish procedures to assure that, to the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and that special education, separate schooling, or other removal of children with disabilities from the regular educational environment occurs 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." 20 U. S. C. 1412(5) (B) (Website, Inclusive Education, <http: //www. uni. edu/coe/inclusion>, Feb. 27, 2003) . Dr. Susan Etscheidt, University of Northern Iowa professor and administrative law judge, says that some of the first legal analysis of IDEA came when the Supreme Court said that everyone is to be given a free and appropriate public education (FAPE) (Inclusive Education, 2003) . This is important to note in regard to the practices of inclusion. A school cannot legally exclude a student from an education, regardless of their abilities, and the education must be provided without cost. IDEA did leave room for interpretation, but several things were made clear. The responsibility would lie with each state. A child with disabilities can not be removed from a regular education classroom until such time as it is determined that a satisfactory achievement can't be made in a regular classroom even with the addition of supplementary aids and services. Just what is a satisfactory achievement? This is one area of hot debate. Is this strictly an academic achievement, or a social achievement? Who makes this determination and how do they make it? What are "supplementary aids and services"? These questions and their interpretation is what cause the controversy on whether or not full inclusion is appropriate. Amendments to IDEA, in 1977, helped to clarify a few of the issues—supplementary aids and services were defined, and general education teachers were included in the teams which write the Individualized Education Program (IEP) for each student so that they can be a part of the regular classroom (Inclusive Education, 2003) . This is where IDEA and our federal mandate stand currently. There is still plenty of room for debate. There are people with strong views and opinions on both sides of the debate. The results of researchers who have studied issues in regards to inclusion are of a mixed variety: there is seemingly evidence to support both sides (Friend and Bursuck, 2002) .

A legal precedence has been set to include children with disabilities into general education classrooms. IDEA, preceded by and including EHA, is based on several principles including zero reject (a rule against excluding any student) , nondiscriminatory evaluation (requires the fair evaluation of students to determine if a disability exists, and if so what kind and how extensive treatment should be) , individualized education (a tailored education for each child based on evaluation and enhanced by supplementary aids and services) , least restrictive environment (LRE--the education of students with disabilities along the side of students without disabilities to the highest extent possible) , and procedural due process (protects students rights and allows for necessary court actions) (Friend and Bursuck, 2002) . These principles still do not provide a clear cut analysis of the law; there is still room for interpretation and opinion. Specific cases which have been brought before the courts have helped to clarify the meanings of IDEA, as well as provide an argument on the side of full inclusion.

Several court cases demonstrate the difficulty in making a clear cut analysis of the law, as well as setting precedences for the practice of inclusion. The case of Brown v. Board of Education (1954) is discussed by Friend and Bursuck as a "case establishing the principle that school segregation denies some students equal educational opportunity ... . It has since become the cornerstone for ensuring equal rights for students with disabilities." (p. 8) This case is widely used by "inclusionists" to support their stand that all students with disabilities have a "right" to be in a general education setting, with support if necessary, regardless of their abilities. Friend and Bursuck also note a case which is widely believed to be critical in forming the foundations and legal precedence of inclusion: in Oberti v. Board of Education of Clementon School District (1993) , which dealt with a student with Down syndrome, it was ruled by the court and later upheld by the court of appeals that school districts are required to make the supports available to students with disabilities to fulfill their needs in the regular classroom, and furthermore that they can't exclude a student from a regular classroom because they learn in a different manner than other students (p. 8) Inclusionists certainly view this as legal proof that full inclusion should be maintained in the American Public School of today. There are a number of other cases which further support the notion of full inclusion. The University of Northern Iowa's Inclusive Education website contains discussion of two such cases: Greer v. Rome City School District (1990/1991/1992) and Board of Education v. Holland (1992, 1994) (Inclusive Education, 2003) . In the Greer case, the courts found that school officials had not made the necessary changes to a kindergarten curriculum to facilitate the inclusion of a child into a regular classroom and that the "whole range of supplemental aids and services" must be offered by the school (Inclusive Education, 2003) . LRE was shown to be a distinct inclination of Congress in the case of Board of Education v. Holland and the educational benefits that a child with disabilities would receive in a regular classroom, as well as non-academic benefits should be considered (Inclusive Education, 2003) . Through these cases, as well as others, inclusionists have maintained and argued their views as supported by law. The law has shown a penchant for the inclusion practices of ensuring equal rights for students, for not excluding students because of their abilities, for facilitating inclusion through the support of supplemental aids and services, and for always maintaining that LRE is the best way to assure a student gets the benefits of his/her education. These court cases are a strong support for the argument of inclusion.

In the journal Childhood Education, Douglas Fuchs and Lynn S. Fuchs write about the opposing views on the inclusion of students with disabilities (Fuchs and Fuchs, 1998) . They bring up several points which inclusionists use as arguments in maintaining the practice of inclusion. Inclusionists state the necessity of depending on a regular classroom to provide the instruction necessary for students to succeed in school, and eventually get a job—"teachers in these settings are experts in instruction ... To the fullest extent appropriate, teachers and students work on general education curricula and have an explicit understanding of the level of academic accomplishment necessary for success in regular classrooms" (Fuchs and Fuchs, 1998) . "Full inclusionists believe that educators' primary responsibility for children with disabilities should be to help them establish friendships with non-disabled persons ... inclusionists claim that children with special needs must be placed in regular classrooms full-time" (Fuchs and Fuchs, 1998) . Dorothy E. Hardin and Sally J. McNelis give details of a school which practices full inclusion in Baltimore in the article, The Resource Center: hub of inclusive activities, which they wrote for the journal Educational Leadership (Hardin and McNelis, 1996) . Hardin and McNelis speak highly of the success of full inclusion in this school with the support of a resource center which is used by all students, those with and without special needs—it is their conclusion that this would work in all schools (Hardin and McNelis, 1996) . It is the opinion of the inclusionists that full inclusion and the changes necessary to make it work is something to which we are "morally bound" (Fuchs and Fuchs, 1998) . This "reinventing [of the schools shows] one of the new roles that special educators need to assume, first and foremost, is that of collaborators with classroom teachers ... special educators ... should spend 100 percent of their time with mainstreamed students, with and without disabilities, who require additional help" ( Fuchs and Fuchs, 1998) . It is the stand of inclusionists that without full-time placement in regular classrooms, students with disabilities will not receive the type of academic teaching or the opportunities to make friends that is necessary to their success. They say that it is the moral obligation of our society to make the necessary changes in our schools, including full collaboration of general education and special education teachers, to allow full inclusion to be successful. Those who are against full inclusion see this in another light.

Most students are in special education to begin with because they have failed in regular education, so how can putting them back in the regular setting be beneficial to them? What evidence shows that full inclusion is the answer for all students? In a full general education classroom of students, a teacher must teach to an array of students. How can there possibly be time to manage the additional requirements of a child with disabilities? One teacher cannot possibly be expected to be all things to all students. Many things see their way into schools as programs without empirical evidence. Those who argue against the full inclusion of all students further maintain that a regular education teacher does not or cannot teach to the special needs of a child with disabilities which require much specialization, they are not trained to teach to that child, and there are no resources available for such. James M. Kauffman states in his book, Education Deform: Bright People Sometimes Say Stupid Things about Education, that "Some of us have maintained the position that although inclusion in general education in regular schools with support from special educators may work well for some students, such inclusion is neither feasible nor effective for all students" (Kauffman, 2002, p. 177) . Those who argue against full inclusion maintain that the needs of each student must be assessed individually; inclusion can not and must not be done in a manner which does not explore what is right for the individual.

Those who are in opposition to full inclusion have a very different view on Brown v. Board of Education (1954) than do their inclusionist colleagues. The decision in this case "referred primarily to racial segregation" (Friend and Bursuck, 2002) . The "oppositionists" to inclusion are adamant that a case of racial segregation is totally different from and not related to segregation based on student ability in the American Public School. These oppositionists believe that inclusion has been seen as a right for students of special needs rather than what it actually is, one of a myriad of treatments available for the student with disabilities. Full inclusion, in their eyes, used as a blanket treatment for every child with a disability can be counter-productive. Where it may work for some students, it can't and won't work for all and therefore should not be used in every case.

The oppositionists, like the inclusionists, use court cases as a basis to support their arguments on whether full inclusion should be used to educate all students in the American Public School. In Clyde K. v. Puyallup School District (1994) , as discussed on the University of Northern Iowa's site Inclusive Education, the determination was made that a boy with Tourette syndrome and attention deficit hyperactivity disorder could be put into a special education setting, outside of the regular classroom,because he wouldn't benefit in a social or academic way from being in a general education setting—the court further stated that the school had met the demands of IDEA by providing the necessary supplementary aids and supports which were to no avail (Inclusive Education, 2003) . Thus, the oppositionists conclude IDEA suggests that inclusion is not the best solution for some students; therefore inclusion must not be applied in all cases. In Fort Zumwalt School District v. Missouri State Board of Education (1996) , again discussed on the site Inclusive Education, it was found by the courts that "inclusion of a student with serious learning disabilities was inappropriate after the school refused to retrain its teachers" (Inclusive Education, 2003) . Here we see the oppositionists argue that the courts agree that inclusion for all students is not always appropriate. The use of these court cases by the oppositionists to support their views is used in a similar fashion as the way in which the inclusionists used court cases to support their views. We can see that the IDEA laws and subsequent court cases are open to a broad range of interpretations and that both sides use them and translate them to their best advantage.

To not use full inclusion as a blanket treatment for all students with disabilities is the basis for the argument presented by the oppositionists. Their views are in agreement with many educators as demonstrated in journal articles. In the Journal of Disability Policy Studies, Jean P. Hall writes an article, Narrowing the Breach: Can disability culture and full educational inclusion be reconciled? , where she states "People and organizations favoring inclusion, however, are overlooking the value of the disability culture that is fostered when children with disabilities have the opportunity to associate with and learn alongside other individuals who share similar identities and life experiences ... changes to the existing system rather than a movement to full inclusion will be more effective in supporting disability culture and , ultimately the needs of children with disabilities" (Hall, 2002) . Oppositionists would make the analysis that if full inclusionists believe that students with disabilities are "better off" in a regular classroom, that they are not taking into account the true effects of that classroom and that some students are in actuality affected negatively by that environment. Oppositionists maintain that the education of a student should always be a top priority when placing a child, or writing an IEP for a student. This opinion is supported by Tom E. C. Smith and Carol A. Dowdy in their article for Childhood Education, Educating young children with disabilities using responsible inclusion (Smith and Dowdy, 1998) . Smith and Dowdy say, "Placing children with disabilities in general education classroom settings, without regard to individual needs, because it reflects current ideas about best practice, does not support the least restrictive environment concept nor the goal of providing appropriate educational programs for all children" (Smith and Dowdy, 1998) . The analysis of the oppositionists here concludes that education is to be accounted for first and is more important, ultimately, than any current trend in education. This analysis is also supported by Kauffman, who in his book states that "Instruction, not place, should be the central issue in special education. Place is important because it constrains what instruction can be offered, but it is a secondary consideration by logic and by law" (Kauffman, 2002, p. 183) . The oppositionists inherently believe that full inclusion is wrong and that students are not necessarily better off in a regular educational setting; in addition, they believe that education of each student should always be the driving force in determining the IEP and education of a student with disabilities, whether in a general education setting or not.

Looking at inclusion from both sides, we see biases and opinions. We see that both sides are guilty of measuring the effectiveness and using units of analysis which can be biased toward their agendas. We must not let these biases, however, cloud the real issue. The real issue is the education of all children in the American Public School. All children's educational needs should be addressed individually. What is often seen missing from this debate is the effect that full inclusion has on the non-disabled students in the classroom. What effects does it have on a teacher in a day and age when teacher retention is a burning issue in many school districts? We must remember that our decisions in regard to the education of students with disabilities will affect real children and are not just hypothetical situations. We must not forget that if we follow the path the inclusionists would have us follow, that we get rid of an array of services for students with disabilities leaving only two real options: full inclusion, or no school. There would be no middle ground. What happens then when full inclusion does not work for a student? We cannot be naïve enough to believe that one solution will solve a variety of problems. In education, one size does not fit all. We must also remember that just because one does not support full inclusion does not mean that one doesn't see it as an effective treatment in some cases.

It is the opinion of this author that to institute full inclusion in the American Public School would be to do a disservice to our students. We mustn't look at only limited factors, that of student rights and social benefits to students, in determining the appropriate education plan for a student with disabilities. Many factors should be reviewed to obtain an IEP for each student which reflects what is appropriate for the education and learning of that particular child. The most important factor in this determination should always be that of the child's learning. Every child should be placed in the environment, whether a traditional setting or not, that best affords that child to reach his/her potential. We should also remember that when we place a student, that the needs of other students in that classroom also need to be considered. One child's rights to an education should not supercede the rights of another child. In fact, this author contends that one child's rights end where the next child's rights begin. We must consider that a child who is fully included in a classroom may not be fully served in that classroom. Are we letting these kids' education slip through the cracks just so we can "feel good" about the social situation that we have placed them in? Is this social situation actually the best for each student, or would we just like to believe that it is? Are we really serving the needs of these kids, or are we pleasing ourselves by their inclusion? Full inclusion is right for some students, and not for others. We must learn to put the needs of the child first, making accurate assessments of their needs and abilities, and passing policies which protect them from "social do-gooders". We must ensure the rights of all students, both abled and disabled, to receive the education to which they are entitled by law. Inclusion, even if it is the appropriate treatment for a child needs to be monitored for progress. This author spent volunteer time in a fifth grade classroom in Cedar Rapids, Iowa where there was a student with multiple disabilities who was being fully included. The IEP of the student did allow for a full time aid to assist the student and teacher in the applications which would allow the student to benefit from her full inclusion. This all looked good on paper, but in reality this was disastrous—not only for this student, but also for other students, one in particular, in that classroom. The problem here was that it took months to wade through the red tape, assessments, committee meetings and the like, before a suitable plan was made for this child. Once the plan to hire an educational aid to work with the child and her teacher was made and implemented, the aid quit after only three days because of the difficulty of the situation. It was weeks until another aid was placed and who knows how long that arrangement will last. In the meantime while all of this was going on in the background, the child was spending her days in a general education classroom with very little in the way of supports. The teacher had another student assigned to be the permanent "helper" of this child—the child was expected to help the disabled student with her work, help with the discipline of said student, and to be an advocate for this child in the classroom. This was done under the guise of education. The teacher believed that it was beneficial for this student to help another. There is nothing wrong in teaching one student to help another, or to be empathetic toward his/her situation, but it is entirely another issue in making one eleven year old child responsible for another child in the classroom. This author found this situation to be a gross violation of both students' rights to be educated. We must not only place a student where they will be best served, but we must also make arrangements for what happens to that student in the time that the appropriate treatment is being arranged. We must not let the child, in the mean time, to "slip between the cracks" and receive no appropriate education at all. It is because of this experience, as well as the examination of the history, the laws, and the views of educators that this author believes that full inclusion should only be used as one of many treatments for a child with disabilities, not as an answer for all.

There are strong points of law, court cases, and expert opinion to support both sides of the inclusion debate. We know that more and more students with disabilities are spending their school days in general education settings. The debate on the issue of inclusion will continue for some time. We must remember what we have learned from both the proponents of full inclusion, as well as those who oppose it. The inclusionists are right to bring special education out into a new light, to consider the rights of children and the social ramifications of their placement. The oppositionist would ask, is this enough to determine the placement of a student with disabilities? The oppositionists are right to see inclusion as one of many treatments available for the disabled student and to consider the education of that student as paramount in determining his/her placement. The inclusionists would ask, where are the rights of the student? The history and subsequent laws of inclusion can help us to understand how we got to this point. Where will we go from here? When all is said and done, it still comes down to the lives of children. We cannot forget that how we proceed in the issue of inclusion will dramatically effect these children and their futures. What if it was your child?

References

Books

Friend, Marilyn and Bursuck, William D. (2002). Including Students with Special Needs, A Practical Guide for Classroom Teachers (3rd ed.). Boston, MA: Allyn & Bacon, 2002.

Kauffman, James M. (2002). Education Deform, Bright People Sometimes Say Stupid Things about Education. Lanham, Maryland: Scarecrow Press, Inc.

Journals

Fuchs, Douglas and Fuchs, Lynn S. (1998). Competing visions for educating students with disabilities: inclusion versus full inclusion. Childhood Education, Midsummer 1998 v74 n5 p309 (8).

Hall, Jean P. (2002). Narrowing the breach: can disability culture and full educational inclusion be reconciled? Journal of Disability Policy Studies, Winter 2002 v13 i3 p144 (9).

Hardin, Dorothy E. and McNelis, Sally J. (1996). The resource center: hub of inclusive activities. Educational Leadership, February 1996 v53 n5 p41 (3).

Smith, Tom E.C. and Dowdy, Carol A. (1998). Educating young children with disabilities using responsible inclusion. Childhood Education, Mid-Summer 1998 v74 n5 p317 (4).

Websites

University of Northern Iowa. (1999). Inclusive Education.

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