Public School Law Students Rights: Special Education July 8, 20161SL Special Education

Table of Contents ContentSlides Legal Framework3-16 Interpreting IDEA17-35 Private School Placement36-42 Related Services43-46 Attorney’s Fees47-49 Section 504 v. IDEA50-53 AIDS54 References55-59 July 8, 20162SL Special Education

Legal Framework In Pennsylvania Ass’n for Retarded Children v. Commonwealth (1972), “the federal district court ruled that retarded children in Pennsylvania are entitled to a free public education” (Alexander & Alexander, 2005, p. 486). – Disabled children should be educated in regular classrooms where ever possible. – Procedural due process and re-examinations were ordered. July 8, 20163SL Special Education

Legal Framework “In Mills v. Board of Education of District of Columbia (1971) expanded the Pennsylvania Ass’n of Retarded Children (PARC) to include all children with disabilities. The Court held disabled children were entitled to – An appropriate education – Individualized education program (IEP) – Due process July 8, 20164SL Special Education

Legal Framework In 1975, Congress passed the Education for All Handicapped Children Act (EAHCA) (Alexander & Alexander, 2005, p. 491). – Free Appropriate Public Education (FAPE) – IEP – Special Education Services – Due Process Procedures – Least Restrictive Environment (LRE) July 8, 20165SL Special Education

Legal Framework 1986 EAHCA Amendments permitted disabled children’s parents or guardians to recover attorney's fees if they prevail in a case against a public agency (Alexander & Alexander, 2005, p. 492). July 8, 20166SL Special Education

Legal Framework In 1990, EAHCA became the Individuals with Disabilities Education Act (IDEA). – Added head trauma and Autism to eligible disabilities. – Prevented States from using Eleventh Amendment to dodge liability. – Added transitional services to IEP’s for students 16+. July 8, 20167SL Special Education

Legal Framework 1997 IDEA Significant Amendments – Student Discipline “Stay put” provision prohibits a school district from unilaterally excluding a disabled student from IDEA benefits when misbehavior is due to his or disability (Honing v. Doe, 1988). If a child is expelled (S-1 v. Turlington, 1981) or suspended (Honing v. Doe, 1988), IDEA services must be continued. July 8, 20168SL Special Education

Legal Framework 1997 IDEA Significant Amendments – Student Discipline A district may order a placement change or suspend a student for no more than 10 days as long as the suspension is same for a non-disabled student guilty of the same offense. A special education student can be suspended for up to 45 days or placed temporarily in an alternative placement for bringing weapons to campus or sale or solicitation of illegal drugs. July 8, 2016SL Special Education9

Legal Framework 1997 IDEA Significant Amendments – Student Discipline A hearing must be held within 10 days of disciplinary action to examine behavior problem. The hearing officer must consider – Did the school district show substantial evidence that maintaining the child’s current placement would likely cause the child or others harm. – If so, the hearing officer may order an interim alternative placement for no more than 45 days. July 8, SL Special Education

Legal Framework 1997 IDEA Significant Amendments – Student Discipline Interim Alternative Placements must – “enable child to participate in the general curriculum;” – “allow child to continue to receive services and modifications That enable the child to meet” IEP goals; – and “include services that will help address the child’s behavioral problems” (Alexander & Alexander, 2005, p. 493). July 8, SL Special Education

Legal Framework 1997 IDEA Significant Amendments – Student Discipline If disciplinary action for than 10 days involving a placement change is anticipated, requires a manifestation determination review – Notice to parents are required. – Due Process procedures. – Conducted by IEP team July 8, SL Special Education

Legal Framework 1997 IDEA Significant Amendments – Student Discipline If the manifestation review – Reveals that the behavior was not due to the disability, the discipline may be applied in a manner that comports with similar discipline for a non-disabled child. The child continues to receive FAPE – Reveals that the behavior is due to the child’s disability, all IDEA procedural safeguards must be initiated to effect a placement change. July 8, SL Special Education

Legal Framework 1997 IDEA Significant Amendments – Student Discipline Parents who believe the behavior was a manifestation of the disability, may contest the discipline at an other hearing before either a local or state hearing officer. July 8, SL Special Education

Legal Framework 1997 IDEA Significant Amendments – Special education services are to be provided to students 3-21, inclusive FAPE doesn’t apply to year olds who lacked an IEP prior to being jailed. IDEA services are owed to IEP holders, even if they dropped out of school (Alexander & Alexander, 2005, pp ). July 8, SL Special Education

Legal Framework Attention Deficit Hyperactivity Disorder – Students with ADHD are entitled to IDEA services If their health is impaired, Are SLD (specific learning disabled), or Are seriously emotionally disturbed. – IDEA coverage rises from Section 504 of the Rehabilitation Act of 1973 and Americans with Disabilities Act (ADA) of 1990 (Alexander & Alexander, 2005, p. 493). July 8, SL Special Education

Interpreting IDEA Free Appropriate Public Education (FAPE) – Free appropriate education Special education and related services provided – Under public supervision and expense, without charge; – Comport with state education agency standards; – Include appropriate pre-school, elementary, and secondary education; and – Conform to the student’s IEP. – FAPE rights are substantive which require substantive due process procedures. July 8, SL Special Education

Interpreting IDEA Free Appropriate Public Education (FAPE) – The definition of appropriate depends on the child. – Educational decisions are left to educators. Services don’t have to maximize the child’s potential, just benefit the child. Courts will review educator decisions to ensure – Compliance with IDEA. – IEP will benefit the child. July 8, SL Special Education

Interpreting IDEA Free Appropriate Public Education (FAPE) – Educational decisions are left to educators. Child isn’t required to prove educational benefit prior to receiving services. In Board of Education of Hendrick Hudson Central School District v. Rowley (1982), the US Supreme Court required a “meaningful benefit” (Alexander & Alexander, 2005, pp ). July 8, SL Special Education

Interpreting IDEA Extended School Year – Depends on the individual child’s IEP. If anticipated regression will require more than a rapid recoupment at the start of the next school year, then an extended school year is likely (Alexander & Alexander, 2005, p. 496). July 8, SL Special Education

Interpreting IDEA Procedural Safeguards – IDEA confers substantive due process Parents are entitled to notice and the opportunity to participate in developing their child’s IEP. Parents must be informed of the procedures utilized to resolve conflicts and appeal adverse decisions. Hearings must be fair; parents can insist that the hearing officer not a school district of state education agency employee. July 8, SL Special Education

Interpreting IDEA Procedural Safeguards – IDEA confers substantive due process Either the school district or parents can appeal an adverse decision to the state education agency (SEA). – During an appeal the child “stays put” in its current placement. Either party may appeal an adverse SEA decision to either the state or federal courts. July 8, SL Special Education

Interpreting IDEA Individualized Education Programs – The IEP “must design and reduce to writing an educational plan that takes into account the identification of the child’s educational needs, the annual instructional goals and objective, The specific educational programs and services to be provided, and the evaluation procedures necessary to monitor the child’s progress” (Alexander & Alexander, 2005, p. 498). July 8, SL Special Education

Interpreting IDEA Individualized Education Programs – The IEP Team Initial Evaluation and Placement – School official – Child’s teachers – Parents or guardians – Person qualified to interpret evaluation results – The IEP must be reviewed annually. July 8, SL Special Education

Interpreting IDEA Individualized Education Programs – IEP Elements Child’s present performance level described in relation to participation and progress in the general curriculum; Annual measureable goals which enable the child to progress in the general curriculum; Any modifications that enable the child to progress towards its annual goals; Enable the child to participate in the district’s or state’s achievement testing program; July 8, SL Special Education

Interpreting IDEA Individualized Education Programs – IEP Elements Evaluation procedures which measure the child’s attainment and progress towards the IEP’s objectives and annual goals; and Parents receive progress reports describing the child’s progress and its sufficiency towards goal attainment. July 8, SL Special Education

Interpreting IDEA Individualized Education Programs – IEP’s which fail to confer an educational benefit, entitle the child to compensatory education services for the time in which the IEP failed to deliver an educational benefit. Burden of proving sufficiency lies with the district (Alexander & Alexander, 2005, pp ). July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – “The IDEA advances the general philosophy that children with disabilities should be educated with typically developing children in the normal educational setting wherever possible” (Alexander & Alexander, 2005, pp ). LRE requires a “continuum of alternative placements.” LRE considerations must consider any potential harm to the child. July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – Mainstreaming is the chief LRE tool Continuum runs from regular education classroom to the hospital. Burden for proving a child has been mainstreamed into his or her LRE rests on the school district. Judicial Tests include – Daniel R. R. TestRachel Test – Roncker Test Oberti Test (Alexander & Alexander, 2005, pp ). July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – Daniel R. R. Test (3 rd, 5 th, & 11 th Federal Circuits) Can education in a regular classroom, along with supplementary aids and services, be achieved satisfactorily? If not, has the child been properly mainstreamed? – Is the child able to benefit from the placement? – What are the nonacademic benefits? – What is the impact on regular education children? – What is the impact of placement on regular education teacher and curriculum? July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – Roncker Test (4 th, 6 th, & 8 th Federal Circuits) For the non-mainstreamed child, does the more segregated placement offer “superior educational services?” – The district must show how the more restrictive placement is superior. – The district must also show that it’s not possible to provide the same benefit in a less restrictive environment with supplemental aids and services. July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – Rachel H. Test (9 th Federal Circuit) Considers “the educational benefits of full-time placement in a regular class, the nonacademic benefits of the placement, the effect the student had on the teacher and other children in the class, and the cost of mainstreaming the student with a disability” (Alexander & Alexander, 2005, p. 507). July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – Oberti Factors (3 rd Federal Circuit) to determine appropriateness of mainstreaming: “reasonable efforts to accommodate the child ina regular classroom; comparison of benefits in a regular classroom with supplementary aids and services to benefits in a special education classroom; and possible negative effects of inclusion with other students in the regular class” (Alexander & Alexander, 2005, p. 512). July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – Courts will typically defer to school official’s judgment. – School district has final say in selecting a school “site as long its educationally appropriate” (Alexander & Alexander, 2005, p. 516). July 8, SL Special Education

Interpreting IDEA Least Restrictive Environment (LRE) – With the increasing emphasis on inclusion, burden of proof rests with school district show why the student shouldn’t participate in the regular education classroom. July 8, SL Special Education

Private School Placement “The IDEA regulation requires the local education agency to ‘provide special education and related services designed to meet the needs of private school children with disabilities residing in the jurisdiction of the agency’” (Alexander & Alexander, 2005, p. 517). July 8, 2016SL Special Education36

Private School Placement IDEA Services Provided to – Disabled children in public schools, – Children attending a private school based on a public school IEP, and – Children voluntarily attending private school. July 8, 2016SL Special Education37

Private School Placement IDEA services for students voluntarily attending private schools are – Conditioned on District discretion in fashioning the program Number of eligible private school students Comparability to those provided to public schools. – These children “have ‘a lesser entitlement’ than children in the other two categories” (Alexander & Alexander, 2005, p. 517). July 8, 2016SL Special Education38

Private School Placement Defective IEP’s & Parental Reimbursement – If a Court finds that a public school’s IEP is inappropriate, it may order the local school board to reimburse parents for private school costs (Florence County School District v. Carter, 1993). July 8, 2016SL Special Education39

Private School Placement Defective IEP’s & Parental Reimbursement – The Burlington Test to determine reimbursement eligibility “whether the school district’s placement pursuant to its IEP is inappropriate and… Whether the private school placement desired by the parents is appropriate” (Alexander & Alexander, 2005, p. 517). July 8, 2016SL Special Education40

Private School Placement Defective IEP’s & Parental Reimbursement – To seek reimbursement, parents must Inform the school at the most recent IEP meeting, they were rejecting the child’s IEP. Inform the district of an intention to place the child in a private setting. Parents must notify the school 10 business days before the intended removal of the child. The parents must make the child available for an evaluation by the district if requested. July 8, 2016SL Special Education41

Private School Placement Defective IEP’s & Parental Reimbursement – To seek reimbursement, parents must Parents must have acted reasonably in a court’s opinion (Alexander & Alexander, 2005, p. 518). July 8, 2016SL Special Education42

Private School Placement Paying for Sectarian Education – Local school boards may pay for services at sectarian schools, but isn’t required to do so (Alexander & Alexander, 2005, p. 518). July 8, 2016SL Special Education43

Related Services “Under Public Law , supportive services that enable special needs children to benefit from special education must be made available without cost to the parents” (Alexander & Alexander, 2005, p. 525). July 8, 2016SL Special Education44

Related Services Support Services Include – Transportation – Speech Pathology and Audiology – Physical and occupational Therapy – Recreation – Diagnostic and Evaluative Medical Services – Counseling Services – Nursing Services July 8, 2016SL Special Education45

Related Services Placement in a hospital for medical purposes doesn’t trigger IDEA payment for physician services. Two Relevant Supreme Court Cases – Catheterization is a related service (Irving Independent School District v. Tatro, 1984). – Continuous nursing services is a related service (Cedar Rapids Community School District v. Garret F., 1999). July 8, 2016SL Special Education46

Attorney’s Fees The Handicapped Children’s Protection Act of 1986 permitted the prevailing party in IDEA litigation to recover attorney’s fees under – IDEA, first and then – The Rehabilitation Act of 1973 or Civil Rights Act of July 8, 2016SL Special Education47

Attorney’s Fees Parents have been found not to be the prevailing party – When they failed to request attorney’s fees prior to a due process hearing; – When the school district complied voluntarily; or – The court decision was couched in state law which didn’t permit recovering attorney’s fees (Alexander & Alexander, 2005, p. 537). July 8, 2016SL Special Education48

Attorney’s Fees Only attorneys are eligible to recover fees; special education advocates don’t count nor is the parent-attorney. Fee is driven by prevailing market rate. July 8, 2016SL Special Education49

Section 504 Section 504 Eligibility (Bragdon v. Abbott, 1998) – Evident physical or mental impairment – Identify an major life activity which is claimed to be impaired “Seeing, hearing, walking, …exerting oneself, or attending school” (Alexander & Alexander, 2005, p. 539). – Establish that the major life activity is substantially impaired. July 8, 2016SL Special Education50

Section 504 Section 504 Applies to children seeking equal educational opportunity – Has been used to obtain programs and services for disabled students. July 8, 2016SL Special Education51

Section 504 – Prohibits discrimination against all persons served by agencies receiving federal funds – Section 504 requires sign language interpreters for parent/teacher conferences where the parents are deaf. – For alleged violations of Section 504, school districts must provide timely hearings and issue resolution. July 8, 2016SL Special Education52

Section 504 – All administrative remedies under Section 504 and IDEA must be exhausted before going to court (Alexander & Alexander, 2005, pp ). July 8, 2016SL Special Education53

AIDS Section 504 prohibits discrimination against students with AIDS. The ADA prohibits discrimination against students with AIDS. IDEA provides services to students with AIDS only if their educational performance is adversely affected (Alexander & Alexander, 2005, p. 543). July 8, 2016SL Special Education54

References Alexander, K. & Alexander, M. D. (2005). American public school law (6 th ed.). Belmont, CA: Wadsworth. Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S. Ct (1982). Cedar Rapids Community School District v. Garret F., 526 U.S. 66, 119 S. Ct. 992 (1999). July 8, 2016SL Special Education55

References Daniel R. R. v. State Board of Education, 874 F.2d, 1036 (5 th Cir. 1989). Florence County School District v. Carter, 510 U.S.7, 114 S. Ct. 361 (1993). Honing v. Doe, 484 U.S. 305, 108 S. Ct. 592 (1982). Irving Independent School District v. Tatro, 468 U.S. 883, 104 S. Ct (1984). July 8, 2016SL Special Education56

References Oberti v. Board of Education of Clementon School District, 995 F.2d, 1204 (3rd Cir. 1989). Mills v. Board of Education of District of Columbia, 348 F. supp. 866 (D.D.C. 1972). Pennsylvania Ass’n for Retarded Children v. Commonwealth, 334 F. Supp (E.D. Pa. 1971), and 373 F. Supp.279 (E.D. Pa. 1972). July 8, 2016SL Special Education57

References Roncker v. Walter, 700 F.2d (6 th Cir. 1983), cert. denied, 464 U.S. 864, 104 S. Ct. 196 (1983). S-1 v. Turlington, 635 F2d. 342 (5 th Cir. 1994), cert. denied, 454 U.S. 1030, 102 S. Ct. 566 (1981). Sacramento City School District v. Rachel H., 14 F3d (9 th Cir. 1994). July 8, 2016SL Special Education58

References School Committee of Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359, 105 S. Ct (1985). July 8, 2016SL Special Education59