Special Education Law 101
Understanding special education law is crucial for educators, parents, and advocates of children with disabilities. For children with disabilities, special education law helps shape the resources they can access in the school system. For educators, knowing the law can prevent liability and create solutions to complicated problems associated with teaching children with disabilities . Furthermore, knowledge of special education law helps ensure that all children facing challenges due to a disability have equal and fair access to educational opportunities. In the United States, the Individuals with Disabilities Education Act (IDEA) offers the legal framework for appropriate education for children with disabilities. In this section, you will find an introduction to special education law, including details about how special education law has developed into the modern understanding of special education today.
The Major Laws Involved with Special Ed
A cornerstone of special education law is the Individuals with Disabilities Education Act (IDEA) which was originally put into place in 1975 as the Education for All Handicapped Children Act. Congress passed this law to ensure free public education and that children who had disabilities would not be excluded from the public school system. In 1990 the law was renamed and expanded, and it has gone through several more revisions since then as new developments and areas of law were created and became relevant to the area of special education.
The term "least restrictive environment" that we discussed above is a part of IDEA under section 1412. The term essentially refers to the concept that, when necessary, children with disabilities should not be removed or placed in separate schools when it is not necessary. The intent is to have these children included in the regular school system for their benefit as well as all students involved. Also, IDEA requires that school districts and public school systems provide an individualized education program (IEP), such as the one we described earlier, for each student with disabilities, and that reasonable accommodations be made when requested.
Another common law that directly affects special education is Section 504 of the Rehabilitation Act of 1973, which established civil rights for disabled individuals both in and out of the public school system. This law prohibits discrimination against individuals with disabilities, beyond a child’s education. This law is applicable to students from birth to age 22 years who need special education services. Some special education law may be grounded in Section 504 instead of IDEA, or both. These two laws are very similar and often overlap. Section 504 can provide more detailed disability law than IDEA, so parents may be able to draw from both of these laws differently if their child happens to be eligible for special education under both laws.
The Section 504 evaluations are less formal than IEP evaluations, but in order to determine if a child is eligible for protections under Section 504, the district is required to evaluate the child within a "reasonable time." The eligibility must be decided before an evaluation takes place, and if the district decides that the child requires a Section 504 evaluation, the district generally has five days to conduct this evaluation and give the parent a copy of the results.
Understanding IEPs and 504 Plans
For students with disabilities, Individualized Education Programs (IEPs) and 504 Plans are the primary legal mechanisms for ensuring appropriate accommodations and/or specialized instruction. Both IEPs and 504 Plans set forth the services the student will receive through the school in order to accommodate his or her special needs. Although they serve similar purposes, there are important differences. IEPs, or at least the potential for them, apply to students eligible for special education under state and federal law. 504 Plans apply to students who do not qualify for special education but who struggle to attend school, learn, or participate fully in school activities as a result of a qualifying medical condition. The student must have a medical condition and the condition must be both substantial and limiting. Just as importantly, the condition must limit a major life activity which may include thinking, concentrating, learning, breathing, and social interactions. IEPs and 504 Plans have different timelines and parent-school responsibilities. Specifically, before a student is identified for special education under an IEP, a student must be evaluated. Parents and school personnel often agree on the necessity for an evaluation. Once a need for evaluation is identified, or requested by the parent, schools ordinarily have 60 days to conduct the evaluation. This timeline often extends beyond 60 days and up to six months. If a need is identified, parents and school personnel can begin working on the IEP process. At the start of each new school year, all IEPs are reviewed. In that review, parents and schools discuss, among other things, their observations and input regarding progress on current goals. This timeframe touches upon eligibility and the individualized services to be provided to the student. Schools contact parents and parents can weigh in on the process in realtime. On the other hand, the process for developing a 504 Plan requires that parents and school personnel work together proactively at least annually. If eligibility exists for a 504 Plan, the school must consult with parents and thoroughly evaluate the student’s needs relative to the major life activities the student is struggling with. The school then contacts the parents to determine whether they agree with the evaluation, the determination regarding whether to develop a 504 Plan, and the content of the 504 Plan. A 504 Plan is reviewed annually after which both parties continue the 504 Plan process of evaluating the current services being provided. Some parents are unsure of which is the better route for their child: an IEP or a 504 Plan. It is always the case that parents leave no option unexplored. Thus, when a 504 Plan is in place, it is understood that a parent may still wish to inquire about special education services. Thus, if a student is not eligible for special education under the IEP but qualifies under 504, the Plan must be reviewed in light of the decision to pursue IEP services.
How a Parent’s Rights Fit In
Parents are afforded a number of important rights under special education law which are designed to protect the opportunities of eligible students to receive appropriate educational services:
The right to receive a prompt written notice prior to any special education decision being made by the school district.
The right to have an IEP implemented.
The right to participate in the IEP process, including development, review, and revision;
The right to give or withhold consent for the provision of special education and related services.
The right to access educational records and information regarding their child.
Although there are a number of legal rights afforded to parents of eligible students under special education law, successful advocacy for a child’s needs requires parents to be active participants in the IEP process. A student’s IEP team will be working to support their academic progress, and parents who act in partnership with their student’s IEP team will find it easier to receive appropriate services for their child.
Teacher Responsibilities and Special Ed Laws
The most critical link in the delivery of special education is typically a classroom teacher. The teacher is the person who must daily interact with students with disabilities and implement their IEP. It bears repeating that the responsibilities of educators with respect to special education laws are continual and far-reaching.
It is IEP teachers, not attorneys, who usually write the IEP’s of students with disabilities, and it is IEP teachers who are charged with implementing IEP’s which they have not written. The IEP included in Delaware’s Form 15 is confusing and ambiguous, such that distinguishing between the responsibilities of a teacher and those of a related service provider is difficult. This form needs to be revised and clarified, particularly section II D of the IEP.
It is typically educators, not lawyers, who must make "stay put" determinations. This determination must be made in writing; however , "Stay Put" letters supplied to our office have been inconsistent and vague. Administrators of educational institutions need to have clear guidance regarding the "Stay Put" provision of federal law, including examples of when "Stay Put" applies and when it does not. The inconsistencies and vagueness with Stay Put determinations is troubling for special education students who are forced to remain in an inappropriate or dangerous environment.
Educators are often responsible for carrying out "manifest determinations" of students with disabilities. Review of school district policies regarding these subjective determinations reveals that horrible mistakes have been made in the past and will again be made unless administrators are provided training on how to conduct and decide manifest determinations. Additionally, schools do not always distinguish between "behavioral" and non-behavioral issues with respect to this determination. As a result of this substantive confusion, children with disabilities are unfairly excluded from the learning process.
When Special Education Laws Conflict
The interplay between federal and state laws can be confusing, especially as they relate to the specific needs of both children and schools. Some of the most common concerns schools face include complying with sometimes conflicting state and federal laws, educating students in the least restrictive environment (LRE) and allocating resources fairly and equally.
Compliance challenges
In addition to the IDEA mandates, such as developing the IEPs, due process hearings, and LRE guidelines and standards, each state has its own special education requirements and regulations. This is one reason why it’s so important to have a good, comprehensive understanding of not only general education laws and regulations but also the ones specific to special education.
Disputes in Funding
Funding challenges have always been a concern for schools, but it is becoming an increasingly growing problem in recent years. In some instances, families receive additional funding (private funding, charitable donations, grants, etc.) in addition to school funding. When a parent with a special needs child feels that his or her child is not receiving the proper level of care, that child may be taken out of school and placed in a private institution where funding concerns are shifted from the local school district to a private institution. This has a drastic effect on budgets, including, but not limited to, a drop in school funding, loss in personnel, larger classroom sizes, etc.
Fights over Services
Children with disabilities are entitled to a free appropriate public education (FAPE). Schools that fail to provide FAPE can be sued, in some cases, to receive compensation from families, such as private school tuition. The Supreme Court has ruled time and time again that FAPE does not mean that children should receive the absolute best education possible but that schools must meet the educational needs of students with disabilities in a way that is comparable to students without disabilities.
Where to Go for More Information
A variety of books, online courses, workshops, and websites are available for educators, parents, and legal professionals who wish to develop their understanding of special education law. Many are offered by organizations focused on education law, such as the Council for Exceptional Children (CEC) and the National Association of State Directors of Special Education (NASDSE) . Online resource centers are also accessible throughout the nation via programs such as the ERIC Clearinghouse on Disabilities and Gifted Education and the National Dissemination Center for Children with Disabilities. Other useful websites include the Council of Parent Attorneys and Advocates, Inc., the IDEA Partnership, and Wrightslaw: Special Education Law and Advocacy. Local resources, such as parent training centers and advocacy groups, can be a valuable source of information for both educators and parents with children who have disabilities.