The ABCs of Special Education Law
Special education means an individualized education program
(IEP) for students with disabilities to receive a free and appropriate public
education (FAPE) that addresses their unique needs to access, to the extent
possible, the general education curriculum alongside, to the maximum extent
possible, non-disabled peers. According
to the latest statistics available,[1]
13% of all public (and charter) school students have an IEP and are thereby
designated as special education students under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
In 1975, Congress passed the Education of All Handicapped
Children Act, Public Law, (P.L.) 94-142, with its main objective to provide a FAPE
to each child with a disability. This followed
earlier legislation in the 1960s that grew out of the civil rights movement and
sought to correct public schools excluding children and youth with disabilities,
including those with severe disabilities who were often sent to institutions
where they were left to languish.
In the 47 years since, federal law has evolved (been
re-authorized) and today we have the IDEA
which is implemented through federal regulations issued by the U.S.
Department of Education, specifically, 34 C.F.R. § 300.1 et. seq. IDEA is “spending
legislation,” meaning states that opt in receive federal monies in the form of
grants, but are obligated to comply with the law or risk losing funding. Every state in turn has its own statutory
scheme and implementing regulations, or rules, promulgated by their state
education departments that comport with the federal rules. As “spending legislation,” the Act has teeth;
U.S. Department of Education and state departments of education monitor
enforcement. IDEA is applicable to public schools
and charter schools, but not private schools.
Parents who choose to send their children to private schools, or use the
“vouchers” that are gaining popularity, cut their ties with public schools along
with IDEA protections.
IDEA ensures that “eligible” students with disabilities, ages
3 to 21[2],
are provided FAPE in the Least Restrictive Environment (LRE). Special
education, is defined as “specifically designed instruction, at no cost to the
parent or guardian, to meet the unique needs of a disabled child…”[3]
Related services are supportive services
that the student needs to benefit from special education. [4]
The non-exhaustive list of related services includes speech & language therapy,
psychological and counseling services, physical and occupational therapy, and
transportation (to, literally and physically, access the school).
Perhaps the most ambitious goal of the IDEA is inclusion, commonly
known as
“mainstreaming.” This requires students with disabilities be educated in the LRE, meaning they are to be included with non-disabled / typical peers to the maximum extent possible.
“mainstreaming.” This requires students with disabilities be educated in the LRE, meaning they are to be included with non-disabled / typical peers to the maximum extent possible.
The IEP is a
legally binding written document functioning, essentially, as a blueprint for
the child’s education. It sets out the child’s
individual needs and describes the services and supports the child will receive
to meet those unique needs, and the LRE - the placement. In accordance with FAPE, the IEP must be
appropriate - the “A” in FAPE. That is,
it must include attainable, realistic goals, not too low and not too high. Many disputes and ensuing litigation in
special education arise over the interpretation of appropriateness for a child,
usually in terms of whether the child is making “enough” progress. In 1982, in a landmark case known as Rowley, the U.S. Supreme Court held that
Congress did not intend for schools to maximize a child’s potential, but rather
provide “a basic floor of opportunity through a program individually designed
to provide educational benefit.” Board of Education of the Hendrick Hudson
Central School District v. Rowley, 458 U.S. 176 (1982). The circuit courts disagreed on how much educational benefit an IEP must provide
to be appropriate under the IDEA. The
U.S. Supreme Court recently attempted to settle the “how much” question in Endrew F. v. Douglas County School District
RE-1, 580 U.S. __ (2017). There, the
Court held that to meet its substantive obligation under IDEA, a school must
offer an IEP reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances. The jury is still out on the
import of Endrew. This author interprets the holding as
mandating that IEP goals be ambitious, a higher standard than “some educational
benefit.”
IDEA is also
notable for the rights it confers on parents – procedural safeguards – the mandate
being parental inclusion in decisions concerning the child’s eligibility for,
and provision of, special education.
Parents are legally part of the eligibility team (called MET,
Multidisciplinary Education Team) and IEP Teams. Other procedural safeguards include the right
to: examine records; request independent
evaluations at public expense; dispute resolution.
Not every student with a disability is “eligible” for special
education. To be eligible for special
education, a student must have not only one of 13 disabilities, but also, because
of the disability, need specialized instruction. The disabilities, or eligibility categories,
are Intellectual Disability (formerly referred to as Mental Retardation);
Hearing impairment; Speech or language impairment; Visual impairment; Serious
emotional disturbance; Orthopedic impairment; Autism; Traumatic brain injury;
Other health impairment (i.e., ADHD, epilepsy, diabetes); Specific learning
disability; Deaf-blindness; Multiple disabilities; Developmental delay (for
ages 3–9). (States can recognize
additional disabilities.) If the
disability does not interfere with or impact the student accessing /
benefitting from education, then the student does not require special education
and will not be eligible for an IEP. For
example, a student who has autism but is high-functioning and social might not
qualify. Similarly, a student with ADHD
may not need modified instruction, but may instead qualify for a “504 Plan”
which provides a student with accommodations only, but not modifications. Accommodations change the environment but the
standards remain the same. So, for
example, a student with Attention Deficit Disorder (ADD) may have as an
accommodation the opportunity to take a test in a separate, quiet room free of
distraction, and have additional time, but the assignments are the same as
those required of typical peers.
In sum, special education addresses a child’s needs due to
his or her disability, and the general education curriculum is modified,
thereby enabling the student to access education in the LRE, which ranges from
the least restrictive environment (a general education classroom with a ”push-in”
which means a special education teacher coming in to help with certain academic
subjects, to a self-contained classroom of only disabled students, to a
separate special education school, to a residential treatment center).
Finally, special education and related services must be
designed to meet their unique needs and prepare them for further education,
employment, and independent living.
Thus, it is important to note that “education” is much more than just academics;
education includes social, emotional, behavior, etc. It is not enough for a student to achieve
all As and Bs in academics and ace standardized tests if they are passive and
withdrawn and do not make friends.
For more information, contact the law firm of Kirsch-Goodiwn & Kirsch.
For more information, contact the law firm of Kirsch-Goodiwn & Kirsch.
[1]
U.S. Department of Education data, https://eddataexpress.ed.gov/data-element-explorer.cfm/tab/data/deid/5/.
[2] Age
22 in some states.
[3] 34
C.F.R. § 300.39.
[4] 34 C.F.R. § 300.34.
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