Fundamentals of Special Education Law: Legal Requirements for Serving Students With Disabilities in Public Schools
| Publication year | 2020 |
| Pages | 0437 |
Special education law is a specialized practice area involving the educational rights of students with disabilities in public schools and the legal requirements for educating these students. This article provides an overview of the rights and requirements for lawyers who may not routinely practice special education law.
Parents in special education matters require both an advocate and an objective advisor to help them navigate both the procedures required to develop and implement a child's educational program and the legal process if disputes with the school system arise. Unfortunately, lawyers representing these families may find that some of the very legal protections designed to include parents as important, equal participants in the special education process can instead leave them feeling overwhelmed, "left out," or even "ganged up on." The many acronyms and technical terminology of special education law, often second nature to educators, may confuse parents. And parents, justifiably, are emotionally invested in ensuring their child receives the educational services that parents believe the child needs.
On the other hand, lawyers representing school systems may have clients who feel the deck is stacked against them in special education cases. School districts must meet extensive legal requirements and obligations, while parents are vested with a multitude of legal rights and entitlements. It is difficult for school systems to "get it right" all the time for all students, despite their best efforts. Like parents, educators are also emotionally invested and can feel personally attacked if a child's educational services and progress are challenged.
Whether representing families of children with disabilities or school systems, attorneys should proceed with caution in this complex, highly litigious, and emotional area of law. It is a different animal from most other areas of civil practice, and the laws surrounding it are not always intuitive.
Overview of Federal Laws Governing the Education of Students with Disabilities
Special education lawyers must know-and understand the interplay of-the federal laws and regulations designed to ensure that students with disabilities receive educational services which are reasonably calculated to help them make appropriate progress.
The primary laws governing the educational programs for and the educational rights of public school students with disabilities include:
The Individuals with Disabilities Education Act ("IDEA")1
The IDEA is the primary vehicle for the provision of special education and related services to students with disabilities. It is an amended version of a federal law passed in 1975, originally known as the Education for All Handicapped Children Act. Part B of IDEA is applicable to preschool, elementary, and secondary schools and contains provisions for educating children with disabilities between ages three and 21.
IDEA establishes the minimum requirements schools must satisfy in educational programs for students with disabilities in order to receive federal funding. States may exceed IDEA requirements by providing additional services, but cannot offer fewer services or have regulations or practices contradicting IDEA standards. In Alabama, the State Department of Education has established rules and regulations in the Alabama Administrative Code ("AAC")2 implementing IDEA.
The cornerstone of IDEA is the school district's obligation to provide a free appropriate public education ("FAPE") to students with disabilities, documented in an Individualized Education Program ("IEP")3 and determined by a team of school staff and a child's parents ("IEP Team"). Contrary to stereotypes, special education students do not receive their services segregated from the general student population. Rather, IDEA ensures that each child with a disability has access to a collection of supports and services in the least restrictive environment appropriate for the child's individual needs.
Section 504 of the Rehabilitation Act of 1973 ("Section 504")4
Section 504 prohibits discrimination against a person with a disability by an agency receiving federal funds, which includes school districts. Enforced by the Office for Civil Rights ("OCR") within the U.S. Department of Education, Section 504 is intended to provide equal access and opportunity for students with disabilities to the same degree afforded students without disabilities. Students who are not eligible for special education and related services under IDEA nevertheless are entitled to protection against disability discrimination if they meet Section 504's broader definition of a "disability."5 Additionally, a 504 student may receive accommodations and related services documented in a 504 Plan, if the student needs those in order to have his/her educational needs met as adequately as the needs of students without disabilities are met.
The Americans with Disabilities Act ("ADA")6
The ADA was enacted to protect people with disabilities from discrimination in the workplace and the community generally. It is enforced by the U.S. Department of Justice ("DOJ") and it protects against disability discrimination in places of public accommodations and in the provision of state and local government services, including public education. The ADA is generally considered the "sister statute" of Section 504 because OCR takes the position that the ADA's educational requirements also apply under Section 504. ADA claims are typically brought in tandem with claims under Section 504, with the same relief available.
Principal IDEA Concepts and Definitions
An understanding of key concepts and definitions in Part B of IDEA is crucial for an attorney practicing special education law. Some of the most important are:
"FAPE" is a term of art meaning a free appropriate public education. Every child with a disability under IDEA is entitled to FAPE, which is defined as special education and related services that:
• Are provided at public expense, under public supervision and direction and without charge to the parents (excluding incidental fees normally charged to nondisabled students or their parents as part of the regular education program);
• Meet state standards, as determined by the state department of education;
• Include an appropriate preschool, elementary school, or secondary school education in the state; and
• Are provided in conformity with the student's IEP.7
"Special education" is defined generally as specially designed instruction at no cost to parents, to meet the unique needs of a child with a disability. Instruction may be conducted in the classroom, home, hospitals and institutions, and other settings, and instruction in physical education.8
"Specially designed instruction" means adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction to:
• Address the unique needs of the child resulting from the disability; and
• Ensure access of the child to the general curriculum, for the child to meet the same educational standards of the school district that apply to all children.9
A cornerstone of IDEA's FAPE requirement, specially designed instruction generally involves intensive, structured, appropriately paced instruction provided in small groups, with frequent monitoring of each student's progress.10
The term "related services" includes a lengthy, non-exhaustive list of support services a child's IEP Team decides are needed to assist the child in benefitting from special education. More specifically, "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and it includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and...
To continue reading
Request your trial