Alabama Attorney General Opinion 1979-0201

THE ATTORNEY GENERAL 179- DocQcii CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA OFFICE .0 LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM M. BEKuns. JR. EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSISTANT April 25, 1979 AOMNN I VS BUN.01013 04 NORTH UNION STREET MONTGOMERY. ALADAMA 10130 AREA 11011). 1344150 Dr. J. Carlton Smith Superintendent of Education Hartselle City Schools P. 0. Box 97 Hartselle, Alabama 35640 Schools - City Boards of Education - Special Education, classroom facili- ties discussed. Dear Doctor Smith: We have your letter in which you request an opinion of this office concerning the construction of a separate facility for housing exceptional children on the campus of Morgan County High School within the jurisdiction of the Hartselle City Board of Education. As we understand your request, the proposed facility would house trainable mentally retarded children who are assigned to Morgan County High School. The facility will be separate and apart from the rest of the school campus on the other side of a parking lot on school property. You speci- fically ask our opinion on the legality of providing a separate facility for exceptional children. It is our opinion that a separate facility for exceptional children may not be provided unless the needs of the children to be housed in such facility require that they be separated from non-exceptional children. We recognize that this is a difficult standard to apply. We therefore feel that a discus- sion of this standard is necessary. aratenswasstressmeased " Dr. J. Carlton Smith April 25, 1979 Page Two As you are aware, Section 16-39-8 Code of Alabama 1975 provides in pertinent part: "In providing for the instruction of exceptional children, the school boards shall utilize regular school facilities and adapt them to the needs of exceptional children, except as otherwise provided herein. No exceptional child shall be segregated and taught apart from other non-exceptional children until a careful study of the child's case has been made and evidence obtained which indicates that such segregation would be for the excep- tional child's benefit or is necessary because of difficulties in teaching the child in a regular school program. Appro- priate placement shall be made on the basis of the placement committee recommen- dation wherever this is practicable." This paragraph of Section 16-39-8 is the Alabama codification of the least restrictive environment requirement in the educa- tion of exceptional children which is necessary to meet federal constitutional standards. In its simplest terms this require- ment simply means that exceptional children must be given the opportunity to benefit from association and education with non- exceptional children to the extent that their abilities allow them to do so. This requirement is mandated for the benefit of both exceptional and non-exceptional children. It is recog- nized that exceptional children should become prepared to be- come contributing members of society to the greatest` extent of their abilities; and that non-exceptional children should be given the opportunity to learn that exceptional children can so contribute. These principals cannot be adequately learned and exceptional children cannot be adequately prepared to make their way in a normal world where the exceptional children are kept apart and segregated from non-exceptional school programs. In numerous recent federal court decisions separate facilities for exceptional children have been successfully challenged as a denial of equal protection of the laws in violation of the least restrictive environment requirement. Dr. J. Carlton Smith April 25, 1979 Page Three It is our opinion that in most instances separate facili- ties such as the one you propose would not withstand consti- tutional challenge. In exercising your judgment concerning whether the facility should be built as proposed you must first determine that the needs of the children to be served by the facility absolutely requires that these children be segregated and kept apart from the children participating in the regular school programs. If the needs of the exceptional children do not require such separation, then their classes must be more physically integrated into the regular classroom programs. It appears from the information which you have furnished that a separate facility would probably not meet constitutional standards in this instance. I hope that the above discussion is helpful to you, If we can be of further assistance regarding this matter, please do not hesitate to call upon us. Sincerely, CHARLES A, GRADDICK ATTORNEY GENERAL By- R SA G, HAMLETT ASSISTANT ATTORNEY GENERAL RGH:dpr