Colker on IDEA's Integration Presumption
Just posted on SSRN: Ruth Colker, The Disability Integration Presumption: Thirty Years Later (forthcoming 2005 in the U. Pa. L. Rev.). The abstract:
The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of "integration." This article brings that debate to a new context - the integration presumption under the Individuals with Disabilities Education Act ("IDEA"). The IDEA has contained an "integration presumption" for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In addition, the article demonstrates that Congress created this presumption to mandate the closing of inhumane, disability-only educational institutions but not to require fully inclusive education for all children with disabilities. This article examines the available empirical data and concludes that such evidence cannot justify a presumption for a fully inclusive educational environment for children with mental retardation, emotional or mental health impairments, or learning disabilities. While this article recognizes that structural remedies, such as an integration presumption, can play an important role in achieving substantive equality, such remedies also need periodic re-examination. Modification of the integration presumption can help it better serve the substantive goal of according an adequate and appropriate education to the full range of children who have disabilities while still protecting disabled children from inhumane, disability-only educational warehouses.