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33 J.L. & Educ. 167 (2004)
The Least Restrictive Environment: How to Tell

handle is hein.journals/jle33 and id is 179 raw text is: The Least Restrictive Environment: How To Tell? PATRICK HOWARD * I. INTRODUCTION The Individuals with Disabilities Education Act (IDEA),' first enact- ed in 1975 as the Education for All Handicapped Children Act, is a fed- eral spending program that all fifty states have implemented in their pub- lic schools.2 As conditions of funding, the federal law mandates a free appropriate public education (FAPE) for all school children with dis- abilities3 and further provides procedural remedies to ensure IDEA com- pliance.4 The landmark case of Brown v. Board of Education5 held that separate, but equal schools are inherently unequal, as they deny both equality and opportunity.6 Building upon civil rights litigation and other political activism, Congress included within IDEA the policy that chil- dren with disabling characteristics should be educated with children who are not disabled to the maximum extent appropriate.7 The result is a Least Restrictive Environment (LRE) provision that has been the subject of two intense debates. First, a legal division exists among the federal court circuits over the proper criteria to employ in testing whether the LRE requirements are met. Second, a policy debate rages among activists over whether the LRE provisions go far enough, not far enough, or too far in integrating America's school children with disabilities with children without disabilities in the educational class- room. In this discussion, the two debates are analyzed independently *University of Arkansas School of Law, J.D. candidate 2004. 1.20 U.S.C. §§ 1400 et seq. (1997). 2. 20 U.S.C. § 1412(a). 3. 20 U.S.C. § 1412(a)(1)(A), see generally THOMAS F. GUERNSEY & KATHE KLARE, SPECIAL EDUCATION LAW § 1. 1 (1993). 4. 20 U.S.C. § 1412(a)(6). 5. 347 U.S. 483 (1954). 6. Id. at 495. Brown struck down Plessy v. Ferguson, 163 U.S. 537 (1896), which established that racially segregated public facilities were constitutional. 7. 20 U.S.C. § 1412(a)(5)(A).

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