In California, a school district is not required to operate a preschool for children without disabilities. Nevertheless, District must ensure that a preschool child with a disability is provided a FAPE in the least restrictive environment. Both the IDEA and California law require the provision of early education programs to children with disabilities between the ages of three and five.
Preschool aged students requiring special education services and entering a public school district for the first time are systematically being denied general education placement.
Children with disabilities and their families receive early intervention services under Part C of the Individuals with Disabilities Education Act (the “IDEA”), from birth to two years old. The education of children between the ages of 3 and 21 is covered by Part B.
A common issue occurs when a child becomes of pre-school age and transitions to Part B: the school district that the child enters tells the family that the school district does not have a preschool class because it is not mandated by the state. The family is told to send the child to private preschool. Or alternatively, the family is told that the child’s needs dictate placing the child in the district’s special day class (SDC). There are no typical students in a SDC – all the students there are receiving special education services.
Many families in this scenario want to see their child educated with typical, nondisabled peers.
But, since this is the first encounter with the school district, the IEP team, and the IEP process in general, many families tend to trust the school district’s decision or believe that the district has the child’s best interests in mind. Or the family disagrees, but is not familiar with the IEP process to know how to challenge the IEP team’s offer.
The law strongly favors educating special education students with typical peers “to the maximum extent appropriate”, and only permits removing a special education student from the general education environment when the “nature or severity” of the student’s disabilities is such that education in a general education class with the use of supplementary aids and services “cannot be achieved satisfactorily”.
“Mainstreaming” is the concept of educating special education students with typical peers in a general education (GE) setting, or the “normal” classroom. The GE setting also includes non-academic times, such as recess, lunch, and even non-academic times in a GE classroom.
In California, the commonly known “Rachel H.” factors determine the “least restrictive environment” (LRE). These four factors are a “balancing test” used by courts to determine whether a child may be educated in a general education setting: (1) the academic benefits of placement in a lesser restrictive environment; (2) the non-benefits of such placement; (3) the effect the student’s presence in the lesser restrictive environment would have on the teacher and classmates; and (4) the school district’s costs of such placement.
But a conflict arises because school districts in California are not required to operate a preschool for children without disabilities. So, there is no GE preschool classroom available in most school districts that can be used to mainstream a student receiving special education services.
However, the law also mandates that when a school district does not have a placement that is appropriate for a child, the district must provide opportunities to participate in preschool programs operated by other public agencies, fund the child’s placement in a private program with typical peers, arrange for another district with an appropriate placement to service the student, or fund home-based services.
The Example Case of G.R.:
G.R. was a preschool aged student who entered Brentwood Union School District. The district offered him special day class (SDC) placement for 100% of the time. The district did not have a general education preschool classroom.
G.R. was a student with Down’s syndrome, resulting in overall developmental delays and low muscle tone. He also had a hearing impairment, and gastrointestinal problems requiring frequent, immediate diaper changes. G.R. had moderate deficits in speech, language and motor skills.
Before the age of 3, G.R. was receiving services through Early Start, a program through the Regional Center of the East Bay, and attending a private day care that was not a registered private school or a certified nonpublic school. None of the staff at the day care were licensed teachers, and none had experience working with children with disabilities. The day care was licensed to service up to 12 two to five year olds. The Regional Center’s service providers assisted the day care staff on how to modify its curriculum and teaching methods to address G.R.’s needs, and he attended there with all typical peers.
G.R. was progressing and gaining confidence at the day care. He learned from modeling his peers and instructors. The day care staff supported him with a one-to-one aide to address inappropriate behavior or prompt him to stay on task.
Once he was of preschool age and entered the school district, an initial IEP meeting was held. No general education teacher was present, and the IEP team recommended SDC placement for 100% of the time. This offer of placement did not change during the course of 10 months, wherein two additional IEP meetings were held.
Mr. Kim persuasively argued, and the judge agreed, that the school district’s lack of a preschool classroom did not excuse it of its obligation to provide mainstreaming services. Mr. Kim also argued that the lack of a general education teacher at the IEP meeting evidenced the district’s intention of never offering GE placement, as the law mandates a GE teacher be present when a child may be mainstreamed.
And while the district attempted to argue that G.R. was offered 100% SDC placement because of the severity of his needs, it was established that he obtains academic and non-academic benefit in a GE setting, as seen by his time at the private day care. G.R.’s needs did not warrant exclusion from typical peers for 100% of his time in school. The school district was obligated to provide some mainstreaming in a GE setting.
The parents obtained reimbursement of the costs of private placement at the day care, from after the initial IEP meeting to the date of the hearing in the legal proceeding.
More importantly, in a post-trial federal district court decision, a federal judge confirmed that G.R. obtained something of more value than just the monetary reimbursement: a judicial order that 100% SDC placement is not appropriate.
The case of G.R. confirmed a similar outcome obtained by Mr. Kim a year prior against another school district. And since then, Mr. Kim has successfully raised the same issue against other school districts. Unfortunately, this issue occurs frequently because school districts generally do not operate a general education preschool classroom.
It has only been within the past few years that one or two Bay Area school districts have created a GE preschool classroom. But until more districts have this placement available, this scenario is likely to occur on a regular basis.
* Click here for the full text and legal authorities in G.R.’s case.