different circuits have treated the issue of whether the LRE could be used as a defense to defeat
parental claims for private school tuition reimbursement. The Authors agree with Weber18 that the
application of the LRE standard should apply when parents are seeking inclusion, but should not
be considered in evaluating unilateral private school placements in tuition reimbursement cases.
II. BRIEF HISTORY OF THE IDEA
At the dawn of American public education in the 1800s, people “with disabilities were
often abused, condemned as incapable of being able to participate in social activities, and simply
forgotten.”19 Interest in educating those with differences emerged toward the end of the
nineteenth century, when Thomas Hopkins Gallaudet and Samuel Gridley opened schools for the
education of the deaf, blind, and mute populations, as well as “the idiotic and feeble-minded.”20
The effort did not extend to those with physical handicaps or who were incontinent.21 In 1850, the
first school for youth with cognitive disabilities opened in Massachusetts.22 Though compulsory
education also emerged in the nineteenth century, special classes served as “a mechanism to
remove undesirables from the regular classroom.”23 Simply being physically repulsive was a
legally sufficient basis to bar a paralyzed child from the classroom.24
The legal principle that “separate is not equal” set forth in Brown v. Board of Education25
has been credited with inspiring pursuit of inclusion by disability advocates.26 In the mid-1960s,
Congress began funding states’ efforts toward improving education for the disabled.27 The
Elementary and Secondary Education Act of 196528 provided federal funding to the states for
development of expanded special education programs and was replaced in 1970 by the Education
for the Handicapped Act.29 Neither statute, however, conferred individual rights or procedures for
identifying or serving students as in today’s legislative schema.30
State legislation developed in the 1970s expanded educational access for children with
specialized needs.31 Chapter 766 of the Acts and Resolves of Massachusetts,32 enacted in 1972,
;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;
18 Mark C. Weber, Vincent de Paul Professor of Law, at DePaul University College of Law, is the author of Disability Harassment
(2007), Understanding Disability Law (2007), Special Education Law and Litigation Treatise (3d ed. 2008), and co-author of Special
Education Law Cases and Material (2d ed. 2007). Society of Vincent de Paul Professors, Mark C. Weber, DEPAUL UNIV.,
http://offices.depaul.edu/svdpp/Members/Pages/Mark-Weber.aspx (last visited Apr. 17, 2015).
19 151 CONG. REC. S13,399–400 (daily ed. Nov. 18, 2005); see also COLKER, supra note 9, at 25–27 (“[U]ntil the nineteenth century,
most individuals with disabilities received no education whatsoever, because they were feared and shunned by society.”).
20 151 CONG. REC. S13,399–400; COLKER, supra note 9, at 25–27; see also Daniel H. Melvin II, Desegregation of Children with
Disabilities, 44 DEPAUL L. REV. 599, 670–71 (1995) (noting a congressional preference for mainstreaming, but cautioning that each
child’s case must be scrutinized).
21 COLKER, supra note 9, at 25–27; see also Melvin, supra note 20, at 603–04.
22 See 151 CONG. REC. S13,399–400.
23 COLKER, supra note 9, at 26–27.
24 Id. (citing State ex. rel. Beattie v. Bd. of Educ., 172 N. W. 153 (Wis. 1919)).
25 Brown v. Bd. of Educ., 347 U.S. 483 (1954).
26 Theresa M. DeMonte, Comment, Finding the Least Restrictive Environment for Preschoolers Under the IDEA: An Analysis and
Proposed Framework, 85 WASH. L. REV. 157, 160–61 (2010); Stacey Gordon, Making Sense of the Inclusion Debate Under IDEA,
2006 BYU EDUC. & L.J. 189, 192 (2006); Melvin, supra note 20, at 607.
27 See Beyer, supra note 8, at 367.
28 Elementary and Secondary Education Act of 1965, Pub. L. 89-10, 79 Stat. 27.
29 Id.; Education Amendments of 1974, Pub. L. No. 93-380, 84 Stat. 175; Gordon, supra note 12, at 276 (noting that the EHA sought
to stimulate development of resources and personnel without further guidelines).
30 Beyer, supra note 8, at 367–68.
31 Beyer, supra note 8, at 367 (citing Comptroller General of the United States, Disparities Still Exist in Who Gets Special Education 3
(Sept. 30, 1981)) (“Prior to 1971, many state statutes contained provisions excluding from the educational system children with certain
physical or mental conditions. In 1970, only fourteen states had statutes mandating appropriate education to children with handicaps.
By 1974, however, this number had grown to forty-six.”).