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School Construction Imminent? Consider Impact on LRE

Special Ed Connection

September 25, 2006

Most of the time, parents advocate for more modern and spacious schools for their children. But an advocacy group and parents of students with disabilities are clashing over a Wisconsin county's plan to build a new $22 million special education facility to replace the Lakeland School.

This recent activity shows you should consider how new facilities will affect your district's placement offerings before school construction gets under way. Also, consider how parents might react to potential building changes in your district and obtain their feedback.

In Disability Rights Wisconsin Inc. v. Walworth County Board of Supervisors, parents and Disability Rights Wisconsin claim Walworth County's plan to build a larger school for students with disabilities translates to a plot to segregate more students with disabilities. The lawsuit seeks to have the county stop all development projects related to the new school and place students with disabilities in the most integrated environments.

In the other corner, 100 families have filed a complaint with OCR in Chicago and OSERS in Washington, D.C., against the advocacy group. They state that eliminating the specialized school would violate their children's right to a "continuum of alternative placements" and the right for parents to choose what's best for their children -- even if that means a highly restrictive placement.

According to the LRE mandate, districts must educate children with special needs alongside nondisabled children to the maximum extent appropriate. But, according to the mandate, districts also have to provide a continuum of placements that includes everything from full-day inclusion in a regular classroom with support services to full-day exclusion.

"It's an interesting dilemma," said Susan C. Freedman, an attorney who represents school districts with Shipman & Goodwin LLP in Hartford, Conn. "Both sides are trying to protect what they perceive as the appropriate implementation of the IDEA."

Get beyond assumptions

The problem with those fighting against the construction, Freedman said, is that the opponents assume the district will favor more restrictive placements for students with special needs once there is a new building.

"You can't categorically decide that the mere building of a facility will violate LRE," she said. "The only way districts can violate it is if we find upon review of several cases that the district is using the facility as an excuse not to offer an inclusive education to those students who can learn in an inclusive setting."

Before starting a construction project, you should hold public forums for parents and community members where you assert your intentions to continue an individual assessment of each child to determine appropriate placement, Freedman said. Demonstrating your dedication to the placement process early on can ease the concerns of those suspicious of your motives.

"A district should discuss that a new building will be just a part of a continuum of services and assure parents that no child will go into that building without going through the placement process with the IEP team," she said. "They have to assure parents, 'We're not going to be dumping kids into this facility.'"

Discuss everyone's rights

You also should remind parents of their procedural safeguard rights and explain that you won't be able to put any placement decision into place without their approval, Freedman said. That may diffuse their defensiveness and allow them to see the building as a positive addition for those students who need more intense services.

But you also should inform parents that districts have the right to regionalize services, said Rochelle S. Eisenberg, an attorney who represents school districts with Hodes, Ulman, Pessin & Katz in Towson, Md. If four children require the same small multisensory, language-rich environment all day, for example, a district can group these children together to use staffers and materials more efficiently. A new building may be in order if there isn't a wing of an existing school suitable for these children.

"You can't arbitrarily put all children in one building just because they have an IEP," Eisenberg said. "But some children with intense sensory needs may need something very quiet and can't be in the hallways with a lot of other children."

Jeffrey Spitzer-Resnick, the managing attorney for Disability Rights Wisconsin, said the advocacy group and parents probably would not have filed suit if the school board were planning to build a small facility.

They think that would allow more students with disabilities to be integrated instead of being kept in their own facility. The Lakeland School is about 105,000 square feet. The county plans call for the new school to be larger by about another 48,000 feet.

Look at each child individually

In Walworth County, 11 percent of children with disabilities are segregated, which is a notably higher percentage than other districts in the state, the advocacy group's complaint said. But your district may segregate more or less students depending on their individual needs. That's why it's important to have diverse placement options available.

"The more of a continuum a school system can offer, the better it will be for everyone," Eisenberg said.

Cara Nissman Kraft covers inclusive and early childhood education issues for LRP Publications.

Reprinted with permission from Special Ed Connection™. Copyright 2006 by LRP Publications, PO Box 24668, West Palm Beach, FL 33416-4668. All rights reserved. For more information on Special Ed Connection™ please visit or call 1-800-341-7874.

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