Individuals with Disabilities Education Act: the interrelationship to the ADA and preventive law.

• Author: Goren, William D.

This article explores many of the substantive issues raised by the Individuals With Disabilities Education Act (IDEA),[1] its relationship to the Americans With Disabilities Act of 1990 (ADA),[2] and preventive law steps that can forestall problems when dealing with the legal issues arising from IDEA and its interrelationship with the ADA.

Some Fundamental Concepts of IDEA

The case that sets forth the substantive requirements of IDEA is Hendrick Hudson District of Board of Education v. Rowley,458 U.S. 176 (1982). Until this case, the Supreme Court had never discussed IDEA and, thus, the Supreme Court took the opportunity to lay out how IDEA suits would be handled in the future.

First, central to IDEA is the term Individual Education Plan (IEP) but nobody knew what such a plan had to contain. In Rowley, the court said an IEP must contain:

1. a statement of the present levels of educational performance of the child; b) a statement of annual goals, including short-term instructional objectives;

3. a statement of the specific educational services to be provided to the child and the extent to which the child will be able to participate in regular educational programs; d) the projected date for initiation and anticipated duration of such services; and e) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.[3]

Second, IDEA requires that parents or guardians must be notified of any proposed change in the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child. Parents or guardians also must be permitted to bring a complaint about any matter relating to such evaluation and education.[4] A change in placement will be discussed later.

Third, IDEA requires that parents be permitted to examine all relevant records, with respect to the identification, evaluation, and educational placement of the child and to obtain an independent educational evaluation of the child.[5]

Fourth, IDEA allows the parents, once they have exhausted administrative remedies, an initial due process hearing and an appeal to bring a court action to enforce their rights under IDEA.[6]

Fifth, the Court discussed that IDEA contains a very definite bias toward mainstreaming. Children in special education are to be educated with children without disabilities whenever possible.[7] Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature of severity of the disability is such that education in regular classroom with the use of supplementary aids and services cannot be achieved satisfactorily.[8]

Before moving on to a discussion of a free appropriate education, the question of what is a change in placement and how the mainstreaming requirement can play out should be addressed. The U.S. Supreme Court answered this question in Honig v. Doe, 484 U.S. 304 (1988), regarding a suspension. In Honig, a person with a behavior disorder who was in special education got into a fight. When the principal was escorting the student to the principal's office, the student kicked in a window. The student had a long history of behavior problems and the school administration summarily dismissed him from school. The student then brought suit. The court held that IDEA does not have a "dangerous" exception to the change in placement rules[9] and, therefore, before suspending a student for more than 10 days, the school must follow the change in placement requirements set forth in IDEA.[10] The Court believed that if it allowed a "dangerous" exception, which was not supported by the legislative history, schools would just expel disabled students as the easy way out of providing a free appropriate education to their students.[11]

The issue of a change in placement arises in other contexts as...