In educational circles, “inclusion” is frequently discussed as a progressive teaching philosophy or best-practice model. Actually, inclusion is a federally protected civil right. In Pennsylvania, the mandate to educate students with disabilities alongside their non-disabled peers is built upon three legal cornerstones: the Individuals with Disabilities Education Act (IDEA), Oberti v. Board of Education (1993), and Gaskin v. Pennsylvania Department of Education (2005). These three milestones mandate inclusion as a right rather than an aspirational goal.
- IDEA: An “Ambitious” Mandate for Progress
The Individuals with Disabilities Education Act (IDEA) guarantees every eligible child a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE).
As the United States Supreme Court observed in its landmark decision, Endrew F., the “IDEA [is] an ‘ambitious’ piece of legislation enacted ‘in response to Congress’ perception that a majority of handicapped children in the United States were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to drop out'”.
Under IDEA’s LRE mandate, school districts must assume that a student belongs in the general education setting first. A student can only be removed to a more segregated or special education setting if the severity of their disability means they cannot achieve a satisfactory education in a regular classroom, even when provided with specialized accommodations, tech, and modifications, aka, axillary aids and services.
2. Oberti v. Board of Education: Inclusion is a Right
The Third Circuit Court of Appeals decision in Oberti v. Board of Education (1993) makes clear school districts must first consider full inclusion. The court affirmed the decision of the district court which declared that “inclusion is a right, not a privilege for a select few.” The Oberti decision established a legal presumption of full inclusion, including a strict two-part test, which asks:
- Can the student be satisfactorily educated in a regular classroom with supplemental aids and services?
- Has the district made reasonable efforts to accommodate the student?
- Are the benefits in the regular education greater than in the special education classroom— such benefits include the social and language models of neurotypical peers?
- Would the disruptive behaviors of the student negatively impact the learning of other students?
- If the child needs to be educated in a segregated classroom, is the child mainstreamed as much as possible?
Mainstreaming needs to be on a continuum so inclusion is not an all-or-nothing proposition.
Further schools cannot demand that a student prove they are “ready” for a general education classroom; instead, the school must adapt the classroom to be ready for the student.
- Gaskin v. Pennsylvania: Systematic Enforcement
IDEA provided the rule and Oberti provided the overarching mandate, including the continuum available for regular education. The landmark Gaskin v. Pennsylvania (2005) class-action settlement provided the systematic enforcement mechanism. Before Gaskin, there were significant disparities in how school districts handled inclusion. Gaskin sought to eliminate these disparities. The Gaskin court approved settlement provided for:
- “Regular Class First”: Individualized Education Program (IEP) teams must explicitly consider the general education classroom with supplemental aids and services. A student cannot be excluded from a regular classroom based on the severity of their disability including a cognitive disability.
- Proving Removal Necessity: If a team decides to remove a student for any part of the day, they must formally document exactly why supplementary aids cannot bridge the gap.
- Statewide Auditing and Funding: The settlement required the state aggressively audit school districts, implement mandatory inclusion training for general educators, and fund systemic support networks.
In the coming weeks, we will discuss various aspects of inclusion on this blog.