B. Article Overview
The IDEA guarantees accessibility to education in public school systems for students
with a broad range of disabilities.7 The IDEA’s mandate requiring educating disabled children in
the “least restrictive environment” (“LRE”) focuses on accomplishing that goal.8 Orthodox
adherence to mainstreaming may once have served an important purpose, but it does not
necessarily serve each child. In point of fact, the LRE requirement may well be at odds with the
IDEA’s current objectives of providing an education that promotes preparation for “further
education, employment, and independent living.”9
One of the initial motivations for the IDEA was to open the doors of public schools to
students who were either excluded entirely or for whom resources were not available.10 Yet many
parents find that their children’s needs are not served by the public schools, even with the
availability of a variety of public educational settings. Frequently, parents run in the opposite
direction, seeking education for their children in specialized programs.11 In those circumstances,
school districts frequently assert restrictiveness as a defense to claims for private school tuition,
and the implication is that those districts are motivated more by financial interests rather than
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7 Qualifying disabilities are “[intellectual disabilities], hearing impairments (including deafness), speech or language impairments,
visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as ‘emotional disturbance’),
orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities” for which the child,
“by reason thereof, needs special education and related services.” 20 U.S.C. § 1401(3)(A)( i)–( ii). Children aged three to nine are
considered disabled if they “experience[e] developmental delays as defined by the State . . . in [one] or more of the following areas:
physical development; cognitive development; communication development; social or emotional development; or adaptive
development . . . .” 20 U.S.C. § 1401(3)(B)( i). “Specific learning disability” is defined as “a disorder in [one] or more of the basic
psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the
imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.” 20 U.S.C. § 1401(30). “[P]erceptual
disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia” are included in this category, while
learning problems that are “primarily the result of visual, hearing, or motor disabilities, of [intellectual disability], of emotional
disturbance, or of environmental, cultural, or economic disadvantage” are not. 20 U.S.C. § 1401(30)(B), (C).
8 The objective of inclusion was “to improve student learning, including socialization . . . and educational attainment.” Christian P.
Wilkens, Students with Disabilities in Urban Massachusetts Charter Schools: Access to Regular Classrooms, 31 DISABILITY STUD. Q.
1, 3 (2011), available at http://dsq-sds.org/article/view/1374/1541. But even after passage of the IDEA, “special education remained
primarily the domain of specialists; it was typically administered in separate schools, separate wings or separate classrooms, and
taught by separate teachers. Students with disabilities—even those entirely capable of benefit—only gradually gained equal access to
the regular curriculum or regular teachers.” Id. at 4; see also Henry A. Beyer, A Free Appropriate Public Education, 5 W. NEW ENG.
L. REV. 363, 364 (1983) (stating that in 1954 “the great majority of public school districts were segregating [children with mental or
physical handicaps] from their nonhandicapped peers, were providing them with grossly inappropriate educations from which they
could draw little benefit, or were excluding them entirely from public education systems”).
9 20 U.S.C. § 1400(d)(1)(A) (stating that the purpose of the IDEA is “to ensure that all children with disabilities have available to them
a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and
prepare them for further education, employment, and independent living”); see generally Colker, supra note 1, at 799 (positing that
the integration presumption was adopted from the civil rights movement “without any empirical justification” and concluding that the
presumption actually impedes the objective of allocating educational resources that are appropriate to students’ individualized needs).
The article caused quite a kerfuffle, resulting in responses by Mark C. Weber and Samuel Bagenstos. See RUTH COLKER, WHEN
SEPARATE IS UNEQUAL 24 (2009) (arguing that a pure integrationist agenda was justified in a time when “individuals with disabilities
were excluded from juries, had few educational opportunities, were disenfranchised, were often housed in inhumane warehouses . . .
and had no ‘right to live in the world’” and urging an individual approach for each student classified as disabled); see generally Mark
C. Weber, A Nuanced Approach to the Disability Integration Presumption, 156 U. PA. L. REV. 174 (2007) (responding to Ruth
Colker’s The Disability Integration Presumption: Thirty Years Later, supra note 1, and disagreeing that the integration presumption
should be altogether abandoned and suggesting that integration be given greater weight if sought by the parent and less weight if
sought by the school district); see Chopp, supra note 5, at 441. C.f. Samuel R. Bagenstos, Abolish the Integration Presumption? Not
Yet, 156 U. PA. L. REV. 157, 161 (2007) (arguing that the integration presumption “requires nothing more than the most integrated
setting appropriate to the individual child” and cautioning that abandonment of the integration presumption could revitalize reliance
on segregated placements).
10 See 20 U.S.C. § 1400(c)(2)(A)–(D) (stating that before enactment of the Education for All Handicapped Children Act, now the
IDEA, “the educational needs of millions of children with disabilities were not being fully met” because they “did not receive
appropriate educational services,” they were excluded entirely from the public school system, their disabilities were undiagnosed or
the public schools lacked “adequate resources”).