The Strained Dynamic of the Least Restrictive Environment Concept in
By Bonnie Spiro Schinagle and Marilyn J. Bartlett*
A. Preliminary Remarks
“Disability” is not a simple term referring to a narrow state of existence.1 Disability
encompasses those with physical challenges as well as the entirety of human intellectual
capability—from extreme impairment to extreme gift. Rigid adherence to placing children in the
general education population is a dangerously simplified view; placement in the general public
school environment can benefit some students but irretrievably damage others.2 Thus, the
individualization mandate of the Individuals with Disabilities in Education Act (“IDEA”)3 is
theoretically sound, but elevating the mainstreaming concept to the level of a mandate is not.
What we propose here is acceptance of inclusion as a parent-driven mandate rather than a
mechanically-applied rule. Parents, after all, know their children best. In the Authors’ experience,
placement negotiations between parents and school districts are more a matter of jockeying for
position in which school districts put their financial interests at the forefront.4 School districts
have greater resources than do parents, resulting in an extreme imbalance in bargaining power.5
The Authors agree with Colker that inclusion should be a means to “improve the educational
outcome for children with disabilities”6 and that those parents wishing to have their children
participate in mainstream educational settings be supported.
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* Bonnie Spiro Schinagle is a special education lawyer in New York. She earned her Juris Doctor and Master of Laws degrees from
Benjamin N. Cardozo School of Law. She received additional training at The Marshall-Wythe School of Law at the College of
William & Mary, Institute for Special Education Advocacy.
Marilyn J. Bartlett is a professor of educational administration and law at Texas A&M University Kingsville. She earned
her Bachelor of Science in Education at Worcester State University (Ma.), a Master’s Degree in Special Education at Boston
University, a Doctor of Philosophy in Organizational Studies at New York University and a Juris Doctor at Vermont Law School. She
is a trained advocate having studied at The Marshall-Wythe School of Law at the College of William & Mary, Institute for Special
1 This complexity was recognized by Congress in 1975. See H.R. REP. NO. 94-332, at 8 (1975); see also Ruth Colker, The Disability
Integration Presumption: Thirty Years Later, 154 U. PA. L. REV. 789, 799–800 (2006).
2 H.R. REP. NO. 94-332, at 9 (“An optimal situation, of course, would be one in which the child is placed in a regular classroom. The
Committee [on Education and Labor] recognizes that this is not always the most beneficial place of instruction.”); see also Colker,
supra note 1, at 796–97 (stating that for some children the integration presumption “hinders the development of an appropriate
individualized education program” and with certain disabilities, such as dyslexia, infinite modifications are unlikely to enable a
student to learn effectively in a general education classroom).
3 Individuals with Disabilities in Education Act, 20 U.S.C. §§ 1400–1491 (2012).
4 See infra note 9.
5 Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory, Adversarial in Fact, 32 J. NAT’L ASS’N
ADMIN. L. JUDICIARY 423, 450–54 (2012) (noting that special education hearings can cost thousands in legal fees, that school districts
have law firms on retainer and that liability insurance is available to cover special education claim defense costs); see also The
Sandner Grp., School Board Legal Liability (SBLL), OKLA. SCH. RISK MGMT. TRUST, http://www.osrmt.org/SBLL.html (last visited
Apr. 25, 2015) (noting the availability of a school board legal liability insurance coverage with a $500,000 defense coverage limit for
defense of “administrative hearings seeking injunctive and declaratory relief in special education hearings”); ACE GRP., ACE
SCHOLASTIC ADVANTAGE EDUCATORS LEGAL LIABILITY POLICY (2015), available at http://www.acegroup.com/us-en/assets/617200-
ace-scholastic-advantage-03.15.pdf (noting the availability of coverage for claims arising out of Individual Education Plan/Special
Needs Due Process Hearings or Desegregation). Chopp also notes that parents are further hampered by the fact that attorneys’ fees are
reimbursable to the prevailing party, but that expert witness fees are not. Chopp, supra at 451 n.120 (citing 20 U.S.C. § 1415( i)(3)(B)
(2006); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 323 (2006).