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On June 25, United States District Court Judge Thomas M. Durkin affirmed a hearing officer’s ruling that School District 65 violated the Individuals with Disabilities Education Act (IDEA) in developing an Individual Education Program (IEP) for a student for the 2011-12 school year. The Court, in a 53-page opinion, affirmed findings that District 65 failed to complete the student’s IEP in a timely fashion, that the District failed to conduct a functional behavioral analysis and develop a behavioral intervention plan, and that the District’s proposed placement of the child in a general education classroom was not reasonably calculated to provide the child with educational benefits.

While the Court’s decision involved the IEP of a single student for the 2011-12 year, portions of its decision may have broader implications. The Court held there was substantial evidence to support the hearing officer’s finding that District 65’s decision to place a student in a general education classroom was “predetermined” and that it was guided, at least in part, by the District’s “Inclusion Policy” which on its face, the Court said, “takes mainstreaming a step too far.” 

Some Background

The student was prematurely born and underwent numerous surgeries to his heart, lungs, eyes and brain. After attending a private school for several years, his mother told District 65 of her intent to register him in the District’s schools for the 2011-12 school year, and she requested that the District conduct a case study evaluation process. At the District’s request, the student’s parents asked the private school to provide an evaluation. Staff at that school concluded in their assessment that the student “is unable to benefit from and attend general education instruction” due to certain disabilities.

At an IEP meeting in August 2011, the student’s parents presented copies of private evaluations from 11 different professionals. Two of the professionals recommended that the student receive instruction in a small class setting  (one said ideally a ratio of three students to one teacher) and that he be provided other enumerated supports.  In three prior years, 2006, 2007 and 2008, the District concluded in in its own evaluations that the student needed a small, structured, individualized program with a low teacher/pupil ratio.

In August 2011, however, the District proposed placing the student in a general education “inclusion” classroom, consisting of 20 or 21 students, five of whom had disabilities. The plan was for the student to spend 95 percent of his time in the classroom, and the balance receiving special services outside the classroom. The class would be staffed by a general education teacher, a part-time special education teacher, and an aide when the special education teacher was not present. The District also offered to hire a full-time aide dedicated to the student.

The student’s parents visited the general education classroom and concluded their child could not function there, and they enrolled their child in a private school. They then filed a due process hearing to challenge the District’s proposed placement and to seek reimbursement for the cost of sending their child to a private school.

The Court’s Rationale

At eight full-days of hearings, the parties each submitted voluminous evidence.  A hearing officer appointed by the Illinois State Board of Education ruled against the District in a 33 page opinion.

Judge Durkin affirmed that ruling. The Court found that District 65 “paid little if any attention to the [student’s] significant behavioral issues,” that the District failed to show that the student could receive an appropriate education “without the accommodations of small class size and a quiet, calm learning environment,” and that the District “predetermined”  that the student’s placement would be a general education inclusion classroom and “there was little evidence that other options were seriously considered” by the District. 

The Court also found that the District’s decision to place the student in a general education inclusion classroom “was guided at least in part by an ‘Inclusion Policy’ adopted by the District in or around 2009.” The policy provides that “[a] continuum of services and supports should reflect the intensity of supports and not a separate place,” and that it announces a strategy to “[a]ssign all students with disabilities to a general education classroom.” The Court said, “In practice, the policy has led the District to cut back on the availability of self-contained special education classrooms.”

“The inclusion policy, at least on its face, takes mainstreaming a step too far,” said Judge Durkin. He said that IDEA requires a “continuum of program options” which includes regular classrooms with supplementary aids, special classes and special schools.  While acknowledging that “it appears that the District does not take its inclusion policy literally” because it still offered at least some separate classes in some schools, “the policy provides further evidence that  the District’s proposed placement was largely predetermined.”

Prior Concerns

Parents of children with disabilities had previously expressed concerns that the District’s inclusion policy would have the impact Judge Durkin found it had. On Feb. 16, 2010, fourteen parents of children with a disability presented a letter to administrators and the School Board. They said they were concerned that the District, in its effort to include students with a disability in the general education classroom, would not provide a “continuum of services” to meet the individual needs of those students and that it would eliminate self-contained programs and Park School as options for children with severe disabilities.

In their letter they urged that the discussion shift from “we are implementing inclusion” to “we are offering inclusive programming.” They said this would allow professionals on IEP teams more flexibility in recommending an IEP that fit the needs of an individual child, as opposed to an ideology of full inclusion.

In several emotionally charged forums, parents of students at Park School also raised concerns that it would be closed

From the start, several School Board members sought assurances from then Superintendent Hardy Murphy that the District would continue to have both self-contained classrooms and Park School as options for students with severe disabilities. Ultimately, Dr. Murphy assured the Board and the public that self-contained programs and Park School would remain options.

Reactions to the Decision

The parents’ and student’s attorney, Matt Cohen of Matt Cohen & Associates, told the RoundTable, “The Court wasn’t rejecting the notion of inclusion, but it was strongly endorsing the requirement that services be individualized and that there be a continuum of services available to meet the needs of the particular student.”

In this case, he said, “it certainly was clear that there was insufficient individualization and insufficient options to allow for individualization to meet the student’s needs.”

“I think the concept of the District’s inclusion policy may have been well intentioned, but the result for this student was there were structural gaps in what the District could offer …. and that led to trying to fit the student into what the District had rather than developing a program that responded to the student,” Mr. Cohen said.

When asked about the Court’s finding that the Inclusion Policy’s strategy to “assign all students with a disability to a general education classroom” was an influencing factor, he said, “I think it’s more than just an influence. I think it has a strong impact in terms of resource allocation.

“In this instance the student needed more individualized service, needed a smaller classroom, needed less distraction and needed more intense and sophisticated instruction, and those things simply weren’t feasible within the staff and resource structure the District had provided. It wasn’t just a question of the policy influencing the thinking of the staff, but it was that there was essentially no way to functionally do more than what they were proposing because there were no resources to do it.

“The outcome is predetermined if they have no staff available to do things in a way that’s inconsistent with the policy,” Mr. Cohen said

Joyce Bartz, current director of special education services, told the RoundTable, “The Illinois State Board of Education has been very clear about districts improving their level of inclusion in terms of serving children in the least restrictive environment. Inclusion is not a policy, but is part of the special education law, providing services to students that meet FAPE [free appropriate public education] and in the least restrictive environment. 

“ISBE has been concerned about the level of restrictiveness in the placement of students in Illinois which is why we expanded our practices in the past few years,” Ms. Bartz continued. “We have expanded inclusion practices and have been supported and monitored in this effort by Project Choices, a technical assistance arm of the ISBE. They have worked with us extensively on both a district-wide and school-by-school basis in order to respond to ISBE’s requests for providing services to students in the least restrictive environment.

“We provide services to students to meet their needs,” said Ms. Bartz. “Services are provided on a continuum that ranges from no service to self-contained within the school setting. IEP teams and staff collect data and use this information to make data-driven decisions about the student’s services.” 

She added, “We have extremely dedicated staff who work to provide the best services to all students, regardless of what educational environment they are in.” 

In June 2012, Ms. Bartz told the School Board the District had nine self-contained classrooms, down from 20 in 2009. She told the RoundTable the District now has 15 self-contained classrooms, not including those at Park School.

Richard Rykhus, vice president of the School Board and a member of the District’s Inclusion Leadership Team, told the RoundTable, “The ruling reinforces that we must ensure that placements of children with IEPs are based upon timely evaluations and their individual needs – a message which the District takes very seriously.”

Core Legal Principles

Judge Durkin outlined some basic core legal principles applicable to educating students with a disability. First, he said, “”the IDEA requires only ‘an appropriate education, not the best possible education, or the placement the parents prefer.’””

Second, he said, “”the IDEA requires that school districts educate disabled children in the ‘least restrictive environment.’”” Thus, “”to the maximum extent appropriate, children with disabilities … are educated with children who are not disabled.””

Judge Durkin said, though, “”when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily”” then mainstreaming is not appropriate. To accommodate children with more severe disabilities, “”school districts are ultimately required to ‘ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.’”” These include special classes and special schools.

Larry Gavin

Larry Gavin was a co-founder of the Evanston RoundTable in 1998 and assisted in its conversion to a non-profit in 2021. He has received many journalism awards for his articles on education, housing and...