The Foundation of Inclusion in Federal Legislation and Litigation

The Foundation of Inclusion in Federal Legislation and Litigation

Mitchell L. Yell (University of South Carolina, USA) and Christine A. Christle (University of South Carolina, USA)
DOI: 10.4018/978-1-5225-2520-2.ch002
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Abstract

The foundation of inclusion in special education law is the least restrictive environment (LRE) mandate of the Individuals with Disabilities Education Act. This federal mandate requires that all students with disabilities receive their education with students without disabilities to the maximum extent appropriate. Our purpose in this chapter is to examine the legal basis of inclusion. We first review the historical antecedents of inclusion. Second, we examine the LRE mandate and the student placement requirements of the IDEA. Third, we survey the most important case law rulings regarding LRE and the placement of students with disabilities. Fourth, we consider strategies that have been used to promote inclusive placements and briefly review the literature on these strategies. We end this chapter by offering principles to guide IEP team members in making educationally beneficial and legally correct placement decisions for students with disabilities.
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Historical Antecedents Of Inclusion

According to Turnbull (2012), American law creates a presumption that favors liberty and integration. This presumption stems from a principle of American Constitutional law that allows a state to only intervene in issues regarding a citizen's liberty to the extent necessary to achieve a legitimate public purpose (Johnston & Sherman, 1993; Turnbull, 2012; Yell, 2016). The U.S. Supreme Court established this principle in a 1960 ruling, Shelton v. Tucker. In the majority opinion, Justice Potter Stewart wrote that

…in a series of decisions this court has held, even though a governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same purpose (p. 482).

Although this decision involved First Amendment rights and not education, the ruling had a profound effect on education as well as other areas such as mental health law (Johnston & Sherman, 1993). When applied to educating students with disabilities, this principle, which was typically referred to as the least restrictive alternative, required that students with disabilities receive their education in environments that were as close to the normal classroom environment as possible given the student's educational needs. As Johnson (1976) noted

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