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Oberti and the Law

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The word "inclusion" is not found anywhere in federal special-education law.

"Least restrictive environment" is the magic phrase used in the Individuals with Disabilities Education Act, the landmark 1975 law that requires schools that accept federal money to provide children with disabilities a "free, appropriate public education." The law also requires schools to educate children with disabilities to the "maximum extent appropriate" alongside their nondisabled peers.

The combination of these key phrases has led to cases like those of Rafael Oberti, which legal experts say is one of about half a dozen inclusion cases that have carved out new legal ground or garnered national attention. Though some inclusion cases have been appealed to the U.S. Supreme Court, the justices have refused to consider any of them.

While Oberti v. Board of Education of the Borough of Clementon School District did not create any new legal standard by which inclusion cases should be judged, it did clarify some issues, many legal observers say. Paramount among them is that districts generally carry the burden to prove why a student should not be included in the regular classroom.

"It's a steep and slippery slope," says Perry Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa. "The words of the law are tilted heavily toward placing students in the regular classroom for a major portion of the day, but it's slippery because the language--'maximum extent appropriate'--is imprecise."

But Oberti was "the right case at the right time" to draw heavy media attention, Zirkel says. At least on paper, Rafael sounded like the student schools fear most--a disruptive and difficult child. Adding to the hype was another high-profile inclusion case unfolding thousands of miles away in Sacramento, Calif., where school officials spent roughly $1 million to fight--unsuccessfully--the parents of Rachel Holland, another child with Down syndrome. Frank Laski, the lawyer who represented the Obertis in their legal battle, says the timing of the cases on both coasts made for more intense media scrutiny than either one would have received alone.

"Oberti stands out as a case educators look at and say, 'My God, this kid was pretty aggressive. What do we have to endure before we can prove it's not appropriate?"' says Melinda Maloney, a lawyer and an associate publisher at LRP Publications, a Horsham, Pa.-based company that produces publications related to disabilities. "I think schools see this case and know the handwriting is on the wall. You can't assume any kid who creates a problem for a regular-education teacher is going to be out."

Oberti clearly has left its mark, besides generating a $214,000 legal bill for the Clementon school district. Since 1993, when the U.S. Court of Appeals for the 3rd Circuit ruled for the Obertis, the case has been cited in at least 20 court cases across the country.

Both the federal courts ruled that the Clementon school district didn't do enough to make Rafael's time in the regular classroom work. But it is telling that the appeals court didn't echo the district court's characterization of inclusion being a "right," says Dixie Snow Huefner, an associate professor of special education at the University of Utah.

"I think they couldn't find the 'right' embedded in the law," Huefner says of the appellate judges. "They found a 'preference."'

The appeals court also emphasized that the specifics of Rafael's program should be left to the child-study team, New Jersey's lingo for the team of experts who make up a student's individualized-education plan.

The Civil-Rights Link

The Oberti ruling, like many others, drew in part from standards set forth in Daniel R.R. v. State Board of Education, a Texas case decided by the 5th Circuit in 1989 in which the parents lost their inclusion battle.

In inclusion cases, the courts have generally looked at:

  • Whether a school has made serious efforts to try placing a student in the regular classroom with the needed aids and supports.
  • What the educational and social benefits for the child are in a regular-education classroom or a more segregated placement.
  • Whether including the child in the regular classroom is likely to "significantly impair" the learning of the other students.
  • What it costs to include a child.

Some courts have criticized the Oberti ruling for declaring a "presumption" in favor of educating a child in his neighborhood school. In recent cases, some parents fighting to have their children educated in the school down the block--rather than in mainstreamed settings in another school building--have lost.

The next generation of inclusion cases, some experts predict, will not be of the Oberti ilk. It is not coincidental that major cases like Oberti and Holland have involved younger children with Down syndrome, who tend to be relatively easily included in regular classrooms, experts say. Expect more cases with older children and children with more complex disabilities such as emotional or behavioral disorders (where parents already have started to lose inclusion cases). And, on the flip side, expect to see more cases with parents fed up with the poor quality of their public schools fighting to move their children out of those schools and into private schools for disabled children--at taxpayer expense.

Regardless of where educators stand philosophically on inclusion, many disability-rights advocates have made the link between inclusion and racial desegregation. And they warn that if schools don't move fast enough to better integrate their disabled children, the courts may step in to do the job for them.

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