A Child’s Right To a Free & Appropriate Education
Federal laws protect the rights of children with disabilities, including children with Down syndrome, to receive a free, appropriate public education.
Unfortunately, this has not always been the case. Until the late 1970s, students with disabilities were routinely placed in often inappropriate segregated educational settings, such as separate specialized schools or institutions. This still occurs but with less frequency. In 1970, schools in the United States served only one in five students with special needs.
The Education for All Handicapped Children Act was instituted in 1975 and later renamed the Individuals with Disabilities Education Act (IDEA). IDEA mandated that a "free appropriate public education" be available to all school-age children with special needs. An amendment added children three to five years of age.
FAPE and LRE
A free appropriate public education (FAPE) requires that students receive special education and related services that meet their unique needs and prepare them for independent living, employment or post-secondary education once their secondary education is complete.
Related services are transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive FAPE, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.
IDEA mandates that an Individualized Education Program (IEP) be developed for each student by an IEP team, which includes the student's parents. When developing the IEP, the team should consider the entire range of the student's abilities and goals, including non-academic goals. The IEP contains a description of the special education services, related services and any other supports, modifications and accommodations that the student may need.
The FAPE and least restrictive environment (LRE) mandates are related. The LRE provision in IDEA states: "Each state must establish procedures to assure that, to the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when 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" [20 U.S.C. 1412(a)(5)(A)].
Through the LRE provision, Congress has expressed a strong preference in favor of general education classes. IDEA does not permit the IEP team to select another educational setting UNLESS the child cannot get an appropriate education in general education classes, even after all the supports and services that are on the IEP have been provided. Therefore, the starting point in any IEP discussion of where a student should be educated is the age-appropriate general education classroom in the school that the student would attend if not disabled (called the "neighborhood school").
The LRE continuum has a hierarchy that starts with general education classes and progresses in order of the restrictiveness of the setting to special education classes, special day schools, special education residential schools and hospital settings. Restrictiveness is determined by the amount of time spent with non-disabled peers. The IEP team is supposed to consider each placement along LRE continuum until the appropriate educational setting for that particular child is identified. This process was designed by Congress to ensure that the child is educated to the maximum extent possible with non-disabled peers.
For a variety of reasons, some parents have concluded that a general education setting is inappropriate for their child needs. It is important for them to know that IDEA requires the IEP team to follow the LRE process described above. However, it will not prevent the child from being educated in special education classes if the IEP team agrees with their conclusion. In spite of the Congressional preference for the general education class, it is still much more difficult to get the IEP team to agree that the general education setting is appropriate, than it is to get your child in special education classes. Many IEP teams do not even follow the process required by IDEA. That is why it is necessary to provide so much information to parents about LRE and inclusion. Of course, parents always have the right to unilaterally place their child in a private school or to home-school their child. Both these choices fall outside the scope of the LRE process.
The FAPE and LRE provisions generally also apply to pre-school age children. LRE for preschool gets complicated by the fact that many districts do not have general education classes for that age group unless they have "universal preschool" for all children with and without disabilities. Some districts use their Head Start classes as general education preschool options for LRE, which creates another set of issues.
The law does not require public school to create general education preschools just to meet the LRE requirements. However, if an IEP team determines that placement in a private preschool program is necessary as a means of providing special education and related services to a child with a disability in the LRE, the program (and transportation as a related service) should be provided at no cost to the parent. This language is in the introduction to the IDEA regulations, but does not appear in the regulatory provisions or the statute. During the next reauthorization of IDEA (the next time it comes up for major amendments) it will be important to get this clearly stated in the law.
Not long ago the only options for 18-21 year old students with intellectual disabilities (some states provide IDEA services even longer) was to stay in high school in order to receive services under the Act. However, now there are many colleges and universities that provide postsecondary programs for students with intellectual disabilities.
In some cases, students are dual enrolled in both the high school and the college even though they receive their IDEA services on the college campus. The introduction to the IDEA regulations states that IDEA funds can be used for transitional programs on college campuses if a student's IEP team determines that his or her needs can best be met through participation in such a program and includes such services on the IEP.