Inclusion and the Law

What is Inclusion? 

Inclusion is the term used to describe when a student receiving special education and related services is placed or “mainstreamed” into the general education classroom.

When is Inclusion/Mainstreaming required? 

Every student who receives special education and related services must be educated with non-disabled peers to the “maximum extent appropriate,” and may be removed from the regular education environment only when the nature and severity of the student’s disabilities is such that education in the general education setting with the use of supplementary aids and services “cannot be achieved satisfactorily.” (See 34 C.F.R. §300.114).

The Least Restrictive Environment

Students who receive special education and related services must be placed in the least restrictive environment (“LRE”). This requires, to the maximum extent possible, students with disabilities to be educated with their typically developing peers. What is an LRE for one student will not necessarily be the LRE for another student. Below is a list of different placement options from least to most restrictive.

  1. General Education
  2. General Education with pull outs
  3. Special day class with some inclusion/mainstreaming
  4. Special day class full day
  5. Nonpublic School
  6. Home or hospital instruction
  7. Residential treatment facility

While not every student will benefit from mainstreaming or inclusion in the general education setting, under LRE, the school district must consider all appropriate placement options and continually work towards each student’s progression into a lesser restrictive environment.

Four Part Test to Determine if Mainstreaming is Appropriate

The courts have developed four factors to consider when determining whether mainstreaming is appropriate. (See Ms. S. v. Vashon Island School Dist., 337 F.3d 1115, 1136-1137 (9th Cir. 2003); Sacramento City Unified School District v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994)).

  1. The academic benefits of placement in a mainstream setting, with any supplementary paraprofessional and services that might be appropriate;
  2. The non-academic benefits of mainstream placement, such as language and behavior models provided by non-disabled students;
  3. The negative effects the student’s presence may have on the teacher and other students; and
  4. The cost of educating the student in a mainstream environment.

What if Inclusion/Mainstreaming is NOT Appropriate?

If a student who qualifies for special education and related services is determined that he/she cannot be educated in a general education environment, the next step is to determine if that student has been appropriately mainstreamed to the maximum extent in relation to the continuum of program options available. Alternative placement options include among others, resource specialist programs (“RSP”), special day classes (“SDC”), nonpublic schools (“NPS”), and home or hospital instruction (“HHI”).  (See Ed. Code, § 56361).

The key for the IEP team is to develop a placement that allows a student receiving special education and related services to make meaningful progress in the least restrictive environment. While Parents may want their child to be in the general education setting it is more important for the student to be able to access and benefit from his/her placement. In the end, inclusion and mainstreaming should always be considered and if the general education setting is not appropriate, goals and services need to be developed for the eventual transition into a less restrictive environment.

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