Under P.L. 94–142, sensorily impaired children must receive appropriate public education in the least restrictive environment. This means, in practice, that some of them must be placed in residential schools; which means, in turn, that legally such schools must exist and be available. Here the requirements and difficulties are considered, with emphasis on the differing and varying needs of the children involved, and reference to several court cases and administrative decisions.
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References
1.
20 U.S.C. 1401 et. seq.
2.
See Senate Report No.043168, 94th Congress, 1st Session (1975). and House of Representatives Report No. 94–332, 94th Cong., 1st Sess. (1975).
3.
Section 504 of the Rehabilitation Act of 1973 (20 U.S.C. 795) obligates recipients of federal financial assistance to provide elementary and secondary students with a free appropriate public education. Regulations implementing Section 504 are found in 34 CFR Part 104. The requirements in the Section 504 regulation are “virtually identical” with those found in PL. 94–142. 42Federal Register 42475 (Aug. 23, 1977).
4.
42Fed. Reg. 42474 (Aug. 23, 1977). The effective date of the regulations was Oct. 1, 1977.
5.
See Rowley v. The Board of Education of Hendrick Hudson Central School District, 102 S. Ct. 3034 (1982) [EHLR (Education of the Handicapped Law Report) 553:656] and Pinkerton v. Moye, 509 F. Supp. 107 (Western District, Va. 1981). [EHLR 554:291].
6.
See Rept. No. 94–168, above, Note 2 at footnote 9; also Rowley, above, Note 5 at footnote 23.
7.
Board of Education of the Franklin Lakes School District v. Mr. and Mrs. R.B., Case No. 83–1178 (N.J., Feb. 22, 1984). [EHLR 505:266, 273].
8.
Rowley, above, Note 5 [EHLR 553:656, 667].
9.
Grace v. Springdale School District No. 50 of Washington County, 693 F. 2d 41 (8th Cir. 1982). [EHLR 554:200].
10.
For a detailed description of the facts and holding in this case, see below.
11.
Roncker v. Walters, 700 F. 2d 1058 (6th Cir. 1983). [EHLR 554:381].
12.
Section 612(5) of P.L. 94–142 (20 U.S.C. 1412[5]. See also title 34 of the Code of Federal Regulations (CFR), section 300.550.
13.
Roncker v. Walters, above, Note 11.
14.
Roncker v. Walters. See also In re: Garland Independent School district, Case No. 0193SE–1081 (Texas, Feb. 1, 1982). [EHLR 503:265], where a hearing examiner warned an LEA against using the mainstreaming requirement as an excuse for providing less expensive, inappropriate services.
15.
Grkman v. Scanlon, 528 F. Supp. 1032 (Western District, Pa. 1981). [EHLR 553:508, 510]. See also Grkman V. Scanlon, 563 F. Supp. 793 (Western District Pa. 1983) [EHLR 555:101]. It should be noted that, on several occasions, the U.S. Office for Civil Rights has cited state schools for the deaf and blind for failing to reassess the continued need for children's placement in the residential program. See, e.g., Nebraska School for the Deaf, Aug. 14, 1982, and The New Mexico School for the Deaf, Nov. 4, 1982.
16.
DeWalt v. Burkholder, C.A. No. 80–0014–A (E.D. Va. 1980). [EHLR 551:550]. See also Wilson v. Marana Unified School District No. 6 of Pima County, Nos. 83–1588 and 83–1628 (9th Cir., June 26, 1984).
17.
34 CFR 300.302.
18.
Compare Grace v. Springdale School District, above, Note 9, where a court found that a program at a state school for the deaf and a program in the LEA both provided the necessary floor of opportunity, and thus required placement in the LEA program because it was less restrictive, with a decision by a hearing examiner in New Jersey (above, Note 7), who ordered placement in a private school for the deaf because the LEA program did not provide the necessary floor.
19.
The seminal case defining the term “education” is Kruelle v. New Castle County School District, 642 F. 2nd 687 (3rd Cir. 1981). [EHLR 552:350].
20.
See, e.g., In re: B.B. and DeKalb County Board of Education, Case No. 1983–37 (Georgia, Dec. 12, 1983). [EHLR 505:262].
21.
Department of Education, Policy Interpretation on IEP Requirements, Question 44 [EHLR 103:43, 57]. See also In re: Educational Assignment of Michael G., Case No. 215 (Pennsylvania, June 30, 1983).
22.
Department of Education. State of Hawaii v. Katherine D., No. 82–4096 (9th Cir. 1983). [EHLR 555:276].
23.
See Pinkerton v. Moye, above, Note 5.
24.
See Roncker v. Walters, above, Note 11.
25.
In re: Olan H. and Cobb County Board of Education, Case No. 1983–41 (Georgia, 1983). [EHLR 505: 232].
26.
In re: Monroe County Community School Corporation (Indiana, 1982). [EHLR 504:247].
Board of Education of the Franklin Lakes School District v. Mr. and Mrs. R.B., above, Note 7; Age v. Bullitt, 673 F. 2nd 141 (6th Cir. 1982 [EHLR 553:556]; and Frank v. Grover, (Cir. Ct. Wisconsin, 1982) [EHLR 554:148].
29.
In re: B.B. and DeKalb County Board of Education, above, Note 20.
30.
See, e.g., DeWalt v. Burkholder, above, Note 16: In re: California School for the Deaf, Case No. SE–152 (California, April 27, 1981). [EHLR 502:228].
31.
See, e.g., Grace v. Springdale School district, above, Note 9; Franklin Lakes School District, above, Note 7; In re: Frederick County Public Schools, Case No. 023–82 (Maryland, Sep. 15, 1981). [EHLR 503:191].
32.
See, e.g., Grace v. Springdale School District, above, Note 9; Franklin Lakes School District, above, Note 7; In re: L.S., Case No. 82–34 (Connecticut, Nov. 19, 1982). [EHLR 504:185]; In re: Brockton Public Schools, Case No. 5532 (Massachusetts, Aug. 16, 1982) [EHLR 504:128].
33.
See, e.g., Grace v. Springdale School District, above, Note 9; Franklin Lakes School District, above, Note 7; In re: Frederick County Public Schools, above, Note 31.
34.
See, e.g., Grace v. Springdale School District, above, Note 9.
35.
See, e.g., Grace v. Springdale School District, above, Note 9.
36.
See above, Note 7.
37.
In re: B.M., Case No. 84–09 (Connecticut, Apr. 4, 1984) [EHLR 556:101].
