Excerpted From: Alexis Cherry, A Good “IDEA” with No Clear Plan: The Lack of Uniformity in Evaluating Compliance with the IDEA's Least Restrictive Environment Provision Has Led to Arbitrary Segregation of Children with Disabilities Across the United States, 35 UC Law SF Journal on Gender and Justice 3 (December, 2023) (277 Footnotes) (Full Document)


AlexisCherryThe inclusion of individuals with disabilities in society has been and continues to be one of the most controversial developments in America. The intent of the present analysis is to explore the protections given to students with disabilities through the enactment of the Individuals with Disabilities Education Act and examine how those students continue to face ongoing barriers to a free and appropriate public education in the least restrictive environment. Although school districts are required to educate students with disabilities alongside nondisabled students in the regular classroom to the greatest extent possible, determining when it is appropriate to remove a child with disabilities from the general classroom is a highly contested issue. A large reason behind this controversy is because the U.S. Supreme Court has refused to create a uniform standard for lower courts to implement, thus leading to a circuit split consisting of four different tests adopted amongst ten different circuits.

Part I of this paper provides a brief background on the history and development of federal disability law, focusing on the interplay with special education. Part II dives into the specific details and requirements of the Individuals with Disabilities Education Act. Part III provides examples of how students with disabilities are still facing unequal treatment in the education system through segregated placement. Part IV discusses the current circuit split and the different legal standards various courts use when determining what constitutes the proper placement in the least restrictive environment. Lastly, Part V explores the possibility of a uniform standard that the Supreme Court could adopt to alleviate arbitrary placement decisions and honor the procedural safeguards guaranteed to students by the Constitution.

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By enacting the IDEA, Congress intended to rectify the pervasive practice of denying children with disabilities access to equal opportunities for education. Unfortunately, thousands of children continue to face barriers when it comes to accessing an appropriate public education in the least restrictive environment. These challenges are partially due to the Supreme Court's silence on what standard should be used to determine compliance with the IDEA's LRE provision as well as a lack of knowledge amongst parents regarding the requirements of the IDEA. To alleviate some of these challenges and ensure equal implementation of the LRE provision across the country, the Supreme Court should adopt the proposed two-prong test and its accompanying factors. In addition, policymakers should demand an amendment to the IDEA that requires school districts to communicate the provisions of the IDEA with parents of children with disabilities so that they may be properly informed of their children's rights.

Alexis Cherry is a 2024 J.D. Candidate at University of California College of the Law, San Francisco.