The U.S. Dept. Education, 2005a regulations implementing IDEA states: “…to the maximum extent appropriate, children with disabilities including children in public or private institutions or care facilities, are educated with children who are nondisabled; and special classes, separate schooling or other removal of children with disabilities from regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”
Simply put, the LRE is the environment most like that of typical children in which the child with a disability can succeed academically (as measured by the specific goals in the student’s IEP). This refers to the two questions decided upon in Daniel R. R. v. State Board of Education, 874 F.2D 1036 (5TH CIR. 1989).
This court, relying on Roncker, also developed a two-part test for determining if the LRE requirement is met. The test poses two questions:
- Can an appropriate education in the general education classroom with the use of supplementary aids and services be achieved satisfactorily?
- If a student is placed in a more restrictive setting, is the student “integrated” to the “maximum extent appropriate”? (Standard in AL, DE, GA, FL, LA, MS, NJ, PA, TX).
Discipline of a child with a disability
Pursuant to IDEA, discipline of a child with a disability must take that disability into account. For example, if a child with Asperger syndrome is sensitive to loud noises, and if the child runs out of a room filled with loud noises, any discipline of that child for running out of the room must take into account the sensitivity and whether appropriate accommodations were in place. According to the United States Department of Education, for children with disabilities who have been suspended for 10 days total for each school year, including partial days, the local education agency (LEA) must hold a manifestation determination hearing within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct following either the Stay Put law which states that the child shall not be moved from his or her current placement or interim services in an alternative placement if the infraction was deemed to cause danger to other students. The LEA, the parent, and relevant members of the individualized education program (IEP) team (as determined by the parent and LEA) shall review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was:
- Caused by, or had a direct and substantial relationship to, the child’s disability; or
- The direct result of the LEA’s failure to implement the IEP.
If the LEA, the parent, and relevant members of the IEP team make the determination that the conduct was a manifestation of the child’s disability, the IEP team shall:
- Conduct a functional behavioral assessment and implement a behavioral intervention plan for such child, provided that the LEA had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in Section 615(k)(1)(C) or (G);
- In the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and
- Except as provided in Section 615(k)(1)(G), return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavior intervention plan.
If it is determined that a student’s behavior is a manifestation of his or her disability, then he or she may not be suspended or expelled. However, under IDEA 2004,if a student “brings a weapon to school or a school function; or knowingly possess, uses, or sells illegal drugs or controlled substances at school or a school function”; or causes “serious bodily injury upon another person,” he or she my be placed in an interim alternate educational setting (IAES) for up to 45 school days. This allows the student to continue receiving educational services while the IEP team has time to determine the appropriate placement and the appropriate course of action including reviewing the FBA and the BIP.