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In the United States, a child with a disability is vested with the statutory right to a free appropriate public education. Public school districts fulfill this right with an individualized education program designed to address the educational needs of the child. As with all governmental programs designed to extend positive benefits, statutory rights to a free appropriate public education come with attendant and commensurate costs that must be paid by the taxpayer. Rights have costs, and while the rights may be absolute, the remedy to a rights deficiency is subject to political processes. To borrow from Ronald Dworkin’s famous aphorism, costs and politics ultimately trump the right to a free appropriate public education.

The essential obligation of special educators under the law known as individuals with disabilities education act (IDEA) is to provide a free appropriate public education (FAPE) to all students identified as having a disability. A secondary and related obligation is to provide a FAPE in the least restrictive environment (LRE). To assist a student's individualized education program (IEP) or placement team to determine the setting in which a student will receive a FAPE, the IDEA mandates that school districts have available a continuum of placements (CAP) in which the team will choose the least restrictive and appropriate setting in which the student will receive their special education and related services. Our purpose in this chapter is to explain these requirements and why following the chronological order of determining FAPE and then LRE when developing a student's special education program is critical to meeting the IDEA's programming and placement mandates. We also explain why determining FAPE in the LRE cannot be accomplished without using the CAP.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (Declaration of Independence, 1776)

States that historically, students with disabilities in the public schools in the USA were subjected to discrimination in the form of segregation from non‐disabled students. Also reports that much of this discrimination has subsided in recent years owing to successful advocacy by parents and community organizations before the Congress of the United States and both the federal and state judiciary. Reveals that national legislation was created so as to protect the education rights of such students and the courts have provided tests for their integration into school systems. Notes that, currently, there is some concern that this advocacy has gone too far and that court decisions authorizing “full inclusion” misinterpret the full extent of the law. Examines the scope of education for disabled children and provides a legal analysis of the educational placement of students with disabilities in the “least restrictive environment”.

Special education in the USA is, in most respects, a 20th century phenomenon and is now governed primarily by federal legislation first enacted in 1975. The federal law in its most recent reauthorization (2004) continues to require a free appropriate public education (FAPE) for all students with disabilities, a full continuum of alternative placements (CAP) ranging from residential or hospital care to inclusion in general education, an individual education plan or program (IEP) for each student identified as needing special education, and placement in the least restrictive environment (LRE) that is thought best for implementing the IEP. Parents must be involved in the special education process. Approximately 14 percent of public school students were identified for special education in 2004–2005, but the number and percentage of students identified in most high-incidence categories as needing special education have declined in recent years (the total for all categories was about 8.5 percent of public school students in 2010). A variety of evidence-based interventions can be used to address the wide range of instructional and behavioral needs of students with disabilities and their families, including transition to further education or work, family services, and teacher education. Special education in the USA may find new sources of support and thrive or may become less common or be abandoned entirely due to criticism and withdrawal of support for social welfare programs of government.

Concern about special education's future is widespread. Now there are calls for special education's abandonment or its nonexistence in any environment other than general education (i.e., for full inclusion or some form of general education only). Some advocates for reform consider special education obsolete, to be rejected in favor of newer ideas known as inclusionary education, and they advocate abandoning special education.

Now may be the time for a second revolution in thinking about what special education is and does so that it evolves into a service that more consistently realizes its promise. Special education is likely to become extinct if its devolution continues. Its collapse would hasten the abandonment of public education. Alternatively, it could evolve to become a viable part of public education, a distinct entity, a clearly identifiable and viable part of educating all children appropriately in public schools.

Among the many causes of special education's devolution, some stand out prominently: (1) confusing must and may; (2) accepting illogic and imprecision of language; (3) responding to all diversities in the same way; (4) spurning science; (5) confusing attribute and person; (6) putting the worst possible face on special education; and (7) misconstruing least restrictive environment.

Better thinking and clearer communication are required to achieve special education's revitalization. These include calling things what they are and relying on new, younger leaders. Clear and wide understanding – consensus – about what special education is and does and acceptance of the idea that we must have it as a separate and distinct part of universal public education would be revolutionary.

The Least Restrictive Environment (LRE) requirements of the Individuals with Disabilities Education Act address factors to consider in educating students with and without disabilities together to the maximum extent appropriate. This chapter is designed to examine the origins and evolving interpretations of the LRE concept in special education policy and practice. Discussion traces the evolution of the concept as a legal principle, and reviews its application to educational strategies for students with learning and behavioral disabilities in contemporary schools. In conclusion, the future of the LRE concept is addressed in light of competing policies promoting presumptive inclusive education, and publicly funded school choice programs promoting greater involvement of parents in choosing where their children with and without disabilities should be educated.

This chapter describes possible effects of the 2017 Endrew F. Supreme Court decision that raised the de minimus standard established in 1982 in Board of Education of the Hendrick Hudson School District v. Rowley. In Rowley, the court held school districts provided an appropriate education to students with disabilities by demonstrating that students' Individualized Education Programs (IEPs) are reasonably calculated to provide some educational benefit. In contrast, the Endrew F. decision requires IEPs to be reasonably calculated to provide progress that is appropriately ambitious in light of the child's circumstances. The implications of Endrew F. in the IEP process are delineated, including the importance of meaningful parent involvement; relevant and current statements of present levels of performance; challenging; ambitious and measurable goals; and frequent, systematic progress monitoring used to inform effective instructional changes that maximize student progress toward IEP goals. Finally, the authors discuss ways that Endrew F. may affect future litigation and that school districts may prepare to avoid possible litigation in the post-Endrew era.

The tremendous relevance of societal discrimination to special education of the learning disabled cannot be gainsaid. Mistreatment of disabled children in public and private educational institutions is a bad reflection on the moral and egalitarian values of the society at large. “Many students, regardless of race, who are deemed eligible to receive special education services [mandated by federal laws] are unnecessarily isolated, stigmatized, and confronted with fear and prejudice” (Losen & Welner, 2001, p. 407). According to the U.S. Congress, “poor African-American children are 2.3 times more likely to be identified by their teacher as having mental retardation than their white counterpart” (20 U.S.C. §1400 (8)(c) Individuals with Disabilities Education Act (IDEA)). Congress has also found that a highly disproportionate number of elementary and secondary special education students are African-Americans (IDEA §1400 (8)(D)) and their social disadvantage stems from “lack of opportunities in training and educational programs, undergirded by the practices in the private sector that impede their full participation in the mainstream society” (IDEA §1400 (10)).

Critical theory integrates the value of social justice into the practice of research and focuses on the manner in which injustice and subjugation shape peoples’ experience and understanding of the world (Endres, 1997). A critical theory perspective is specifically concerned with issues of power and justice and the ways that the economy, race, class, gender, ideologies, discourses, education, religion, disability, and other social institutions interact to construct a social system (Kellner, 2003). Thus, critical inquiry must be connected to attempts to confront injustices of society. Clearly, an effective history of special education law can better illuminate some of the injustices commonly experienced by students with disabilities. However, the majority of school administrators and directors of student services and special education have viewed special education regulations through a positivist lens. Skrtic (1995) contended that although positivism has been discredited, it is still the theory of knowledge used in modern professionalism (including education, special education, and other social sciences). Professional knowledge in this positivist framework is received and perceived by students as objective truth because the scientific process remains the mechanism for discovering and applying new knowledge. Society affords professionals autonomy on the assumption that professionals, by virtue of their access to specialized knowledge, know what is best for their clients. In a type of moebius loop construction, only the professionals can judge what is best for their clients because they are the only ones with access to the specialized knowledge. This knowledge, frequently based on “traditional” histories, becomes the pervasive, professional knowledge employed in practice. Thus, it is essential to understand the assumptions inherent in this knowledge base.