What should we do if some of our buildings are not physically accessible?

Every school district completes a self-evaluation under the Americans With Disabilities Act (ADA), to look at physical accessibility. Under ADA, schools are required to have only one age appropriate building in an area accessible for students with disabilities. All new construction or major remodeling must be physically accessible. To gain information about your school district, contact your school superintendent's office and ask about the self-study and the time-lines to make the schools accessible.

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Should the Board of Education have a special policy on education which is inclusive or is it all right to assume it is embedded in the current school board mission where it refers to all?

Research tells us that organizations and individuals who hold a vision are most apt to realize the outcomes of that vision. A vision statement regarding education which is inclusive may provide short term benefits for some districts, since children with disabilities have been systemically excluded for so many years. Boards of Education who have a vision of education which is inclusive for all their student populations and who value all those student populations will ultimately have a higher probability of achieving the academic, citizenry and social goals of their students. When school districts have a vision statement on education which is inclusive, all policies should be reviewed as to their compatibility with that vision statement. A district's vision should address an education that is inclusive for all students, not just those with identified disabilities. This will avoid the probability that other groups of students may also feel disenfranchised, left-out and excluded.

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Do some aspects of education which is inclusive require legislation?

Article 14 of the Illinois School Code parallels the federal Individuals with Disabilities Education Act (IDEA). In that sense, no legislative language requires changing. However, the rules and regulations (23 Illinois Administrative Code) governing Article XIV 14 of the school code require significant change. In Illinois funding of special education is tied to self-contained classrooms, class size, the type and severity of a student's disability and teacher certification.

Congress' intent was clearly non-removal from the general education classroom by providing supports and aids. To have this truly individualized for students, the rules and regulations and funding formulae in Illinois will require significant modification. The Illinois State Board of Education (ISBE) has been working on a funding formula that would neutralize some of the current incentives for segregated vs. inclusive placements.

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Who is advocating for change?

A number of organizations and agencies have federal goals or organizational missions which guide the activities they engage in. The federal goals of the state councils on developmental disabilities require those state agencies to work for the integration and inclusion, productivity and independence of persons of all ages with developmental disabilities. Therefore, the Illinois Council on Developmental Disabilities (ICDD) is to advise the Governor on policies and legislation regarding the integration and inclusion, productivity and independence of Illinois' persons with developmental disabilities. By federal mandate, the ICDD is also to issue Calls for Investment to accomplish these goals in the state of Illinois.

In addition to the ICDD, several other organizations in Illinois have as their organizational intent and bylaws the accomplishment of an education which is inclusive for persons with disabilities. Among these are the Illinois The Association for Social Justice and Human Rights (IL-TASH) and People First of Illinois, and Parent Training and Information Centers (PTI's) such as Designs for Change, National Center for Latinos with Disabilities, and Family Resource Center On Disabilities.

The Illinois State Board of Education (ISBE) approved and adopted a policy on Least Restrictive Environment to ensure that it meets the requirements of IDEA 97 and its associated regulations, 34CFR § 300.550-330.556.

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What are the issues with teacher unions regarding an education which is inclusive?

Currently, experience tells us that issues related to education which is inclusive with teacher unions in Illinois mostly center around concerns relating to supports and aids, class size, staff development and joint planning time. The inclusion of any child into a public school or class should not be negotiable. The rights of students with disabilities to access all of the services, activities, programs and classes is a civil right guaranteed under Section 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA). Planning time and class size should be negotiable items only if in the context of all students. Where supports and aid(e)s, class size, staff development and joint planning time are an issue for an individual child with a disability, all needs should be incorporated into the Individualized Education Program (IEP) of that child. This would be in a section of the IEP having to do with "other considerations."

In policy document No. 45 issued on June 12, 1985, the U.S. Office for Civil Rights (OCR) ruled:

"The collective bargaining agreement provisions that impose restrictions on the placement of handicapped students in regular classes are not a per se violation of Section 504. However, any implementation of the provisions that has the effect of limiting the participation of handicapped students in the regular education environment or imposing other burdens on handicapped students would be a violation of Section 504 and the implementing regulation. Where this issue arises, the LEA (Local Education Agency) should be advised that these contract provisions will not be regarded by OCR as a justification fornot educating handicapped children in the least restrictive environment that their disabilities will allow." (p.5)

Reprinted in the Individuals with Disabilities Law Report) (p.79) are Thomas Hehir's (Director, Office of Special Education Programs) and Jeanette J. Kim's (Director, Policy Enforcement and Program Service, Office for Civil Rights) responses to questions regarding teacher union and board negotiations.

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Are teachers' unions allowed to make contracts which contain rules that are in opposition to civil rights laws such as Section 504?
Can a teachers' union be brought up before OCR for violation of students' civil rights by promulgation of rules and regulations that deny childrens' civil rights?

Because these questions are related, we are issuing a combined response. Implementation of any collective bargaining agreement or of any rules and regulations that have the effect of limiting the participation of children with disabilities in the regular educational environment or of imposing other burdens on children with disabilities or of making the aids, benefits, and services provided by the school district less effective than those provided to other students would constitute a violation of Section 504 and its implementing regulation. In enforcing Section 504, however, OCR has no jurisdiction over entities that do not receive Federal funding through the Department. As long as a teachers' union does not receive such funding, OCR could not dictate the terms of any collective bargaining agreement it proposes or find the union in violation of Section 504 and its implementing regulation if the terms of the proposed contract prove to be discriminatory. OCR could, however, find a school district in violation if it ratified such a collective bargaining agreement and then attempted to use it as a justification for not meeting the LRE requirement or for restricting children with disabilities in obtaining aids, benefits, or services or for providing these children with aids, benefits, and services that are not as effective as those provided to nondisabled children.

We know of at least one school district in Illinois where the Board of Education refused to negotiate education which is inclusive because they would not knowingly or willingly negotiate any language that potentially violates federal law or the individual civil rights of children. Instead, a District Learning Leadership Team was established where any problem regarding student learning could seek resolution. Problems have to seek their resolve at the building level first, then with central administration and lastly with the Learning Leadership Team.

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What are the effects of the American with Disabilities Act (ADA) on education which is inclusive?

Proponents of an education which is inclusive predict that the effects of the ADA will be profound. The ADA gives significant power to the "non-discrimination on the basis of disability" aspects of Section 504 of the Rehabilitation Act of 1973. No public agency can deny any person with disabilities access to any of its programs, services, activities or facilities that are accessed by persons without disabilities. While the ADA requires school districts to have only one school in an area physically accessible, program accessibility is 100 percent. Persons knowledgeable about ADA are saying that even if a child with disabilities is not attending their home school because of a lack of physical accessibility, they must be included at the school they are attending. The issue of home school physical accessibility, however, is one that parents are pursuing. Those parents whose children cannot attend their home school because of a lack of physical accessibility feel that the ADA discriminates against their child in this regulation.

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Is education which is inclusive a legal mandate?

The terms inclusion, mainstreaming and integration are not mentioned specifically in federal statute. Through the years, these terms have reference to best practices in implementing the mandate for placement in the least restrictive environment (Individuals with Disabilities Education Act amended 1997).

The 1975 Education for All Handicapped Children Act (P.L. 94-142), now IDEA 97, requires that each public agency insure,

...that to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled, and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature of severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (Section 612 (a) (5) (A))

With more and more examples of successful education which is inclusive occurring in school districts throughout the country, it is becoming difficult to rationalize the exclusion of children on the grounds of the severity of their disability.

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Will education which is inclusive be reversed down the road?

Since the passage of PL 94-142 in 1975, best practices in special education has recognized Congress' intent to maximize the education of children and youth with disabilities in less restrictive environments. While the movement toward education which is inclusive varies greatly from state to state and district to district, recent legislation (IDEA, ADA) and case law (Oberti, 1993 and Holland, 1993) are giving clear direction to school districts. School districts will be held accountable for the education of children and youth with disabilities in general education classrooms in their home schools. The federal judge in the Oberti case said that education which is inclusive was a right of all children, not a privileged few. Rachel Holland, a child with a, disability seeking inclusion in the Sacramento City Unified School District won a state level due process hearing. The school district appealed this decision to the Federal District Court. In an unprecedented move, the United States filed an amicus curiae brief (Brief for the United States as Amicus Curiae Supporting Appellees, 1992) on behalf of Rachel.

A more recent case before the Supreme Court was Cedar Rapids v. Garret F. (1999). The Supreme Court ruled that IDEA requires school districts to provide nursing services if such services are necessary for the child to receive an education. Garret attends regular classes in a typical school, however, he is ventilator dependent requiring a responsible individual to attend to his physical needs.

In Ryan B. v. LaGrange (1999) 7th Circuit Court of Appeals recently ruled that the local district must provide the least restrictive environment in preschool settings. This meant the school district had to pay tuition for the child to attend private preschool with typically developing peers because the district did not offer a setting that provided for interaction with typically developing peers. This precedent setting case has led to an increase in districts looking for ways to create early childhood classrooms that either include typically developing peers in their preschool or partner with community preschools to offer a setting that is primarily used by typically developing children.

A 1992 class action lawsuit (Corey H. v. Board of Education of the City of Chicago/ISBE) has far reaching implications for inclusive education. The complaint alleges that the Board has a practice and policy of unnecessarily educating children with disabilities separately from their non disabled peers and which unnecessarily excludes from….

Findings indicated that contrary to the LRE mandate and contemporary educational practices, Illinois' system has continued to place children by the categories of their disabilities rather than their individual educational needs and objectives. This systemic failure results from poor understanding by and training of general education teachers and administrators in the meaning of LRE. Consequently, disabled children are typically "pulled out" of regular classrooms for specialized services (Corey H. vs. City of Chicago/Illinois State Board of Education).

The Chicago Board of Education pleaded "no lo contendre" and entered into a settlement agreement in 1997. The settlement requires the Board to invest $24 million dollars over an eight year period for training staff and developing resources to build capacity within the schools to support any student with a disability in the least restrictive environment (the school or classroom the student would attend if (sh)he did not have a disability).

In 1998, the court ruled against ISBE in trial. ISBE then moved to negotiate a voluntary settlement with the plaintiffs. The court approved and the settlement agreement has been developed with the participation of the plaintiffs, the court monitor, and the Chicago Public Schools. As per the federal court's decision, "ISBE's Comprehensive system of Personnel Development must be designed to ensure that necessary personnel are available to implement the IDEA and that such personnel are trained and qualified. Such training programs shall allow for courses of study to be provided on site at CPS and the communities in which practitioners will provide the services for which they are being trained." (Corey H. Settlement Agreement, V.30, a).

Project CHOICES is one of the two programs that addresses training issues to ensure that teachers and administrators in the state of Illinois are fully informed about their responsibilities for implementing the LRE mandate. The project provides on site technical assistance and training to assist teachers and administrators with knowledge and appropriate attitude and skills to guarantee children with disabilities are educated in the least restrictive environment.

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Is the goal of education which is inclusive to get rid of special education?

The 23 Illinois Administrative Code, Part 226, defines special education as:

...those instructional and resource programs and related services, unique materials, physical plant adjustments, and other special education facilities described or implied in Article 14 of The School Code which, to meet the unique needs of exceptional children, modify, supplement, support, or are in place of the standard educational program of the public schools. The term includes speech pathology and vocational education.

Nowhere in the nation have we heard proponents of education which is inclusive advocate the dissolution of special education supports and services. Rather, the goal is to eliminate the placement of students, based upon a label, into categorical programs that are segregated from general education classrooms. Such placements cannot meet the federal mandate to maximize interactions between children and youth with disabilities and their peers who are not labeled or provide equal access to curriculum content and activities. Experience of successful general and special educators tell us that roles will change, but that supports, aids, and services will most probably always be needed. The education of children and youth with disabilities which is inclusive must be accompanied by the provision of necessary supports, aids and services.

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