Update on the Law of Special Education Annual Conference of the South Dakota Association of School Business Officials Pierre, South Dakota September 28, 2011 Charles J. Russo, J.D., Ed.D. Panzer Chair in Education Adjuntct Professor of Law University of Dayton (937) (ph)

Outline I. Introduction II. Section 504 of the Rehabilitation Act of 1973 (504) III. Individuals with Disabilities Education Act (IDEA) IV. Section 504 v. IDEA V. Conclusion

Introduction How Attitudes Have Changed See, e.g., State v. Board of Educ. of City of Antigo, 172 N.W. 153 (Wis. 1919) (affirming the exclusion of a student whose paralysis caused him to speak hesitatingly and drool uncontrollably even though he had the academic ability to benefit from school because “his physical condition and ailment produce[d] a depressing and nauseating effect upon the teachers and school children.”).

I. Introduction Two KEY Early Cases Pennsylvania Association for Retarded Children v. Pennsylvania (PARC),334 F. Supp (E.D. Pa. 1971), 343 F. Supp. 279 (E.D. Pa. 1972). Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972).

I. Introduction Two Primary Statutes Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794(a) Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400 et seq.

II. Section 504 “No otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C.A. § 794(a).

II. Section 504 Eligibility a) have, had believe, to have had impairment that significantly impacts a major life activity (such as school or work) b) otherwise qualified c) in program that receives federal financial assistance d) reasonable accommodations

II. Section 504 Defenses a) cost b) health and safety c) significant alteration in nature of program

II. Section 504 Section 504 Service Plans ≠ IEPs Demographic Data: student’s name, date of birth, school identification number, grade, school, teacher, parents’ names, address, telephone numbers, Team Members Impairment: a detailed description of the student’s impairment and its severity, along with an explanation of how it impedes the child’s educational progress Accommodations and Services: a detailed description of the accommodations and services to be offered under plans, including the frequency and location of services, where they will be provided, and by whom they will be provided

Cf. IEP IEPs must describe students’ current levels of educational performance, annual goals and short-term objectives, the specific services that they will receive, the extent to which they can take part in general education, the date services begin and how long they will be offered,

Cf. IEP criteria to evaluate whether they are achieving their goals. how students' disabilities affect their ability to be involved in and progress in inclusive settings necessary modifications to allow them to take part in the general curriculum and detail related services that students need to benefit from their IEPs.

III. IDEA 20 U.S.C. § 1400(3) Child with a disability (A) In general The term "child with a disability" means a child- (i)with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii)who, by reason thereof, needs special education and related services.

III. IDEA 1) Eligibility a) 3-21 b) specifically identified disability c) need special education (aka IEP) d) need related services

III. IDEA 2) Key Elements a) FAPEcf. Rowley v. Board of Education b) LREcf. Timothy W. v. Rochester (zero reject) c) parental input d) due process cf. Honig v. Doe (discipline)

III. IDEA Continuum of Placements 1. Full inclusion... a GOAL NOT a RIGHT 2. Full inclusion with an aide 3. Full inclusion with an aide and pull out 4. Self-contained placement 1-4 SHOULD be in the child’s “neighborhood” school

III. IDEA Continuum, Cont’d 5. Special day school 6. Hospital and homebound 7. Residential Placement

IV. 504 v. IDEA There are at least eight major differences between Section 504 and the IDEA. 1.while Section 504 applies to school systems that receive federal financial assistance, whether in the form of money, books, or free lunches, they do not receive additional funds under its provisions as do the boards that serve children who qualify for IDEA services.

IV. 504 v. IDEA 2. Section 504 protects individuals under the broader notion of impairment rather than the IDEA's reliance on the statutorily defined, and delineated, disabilities.

IV. 504 v. IDEA 3. Section 504 has no age limitations while the IDEA covers students from the ages of 3 to 21 or when they complete high school.

IV. 504 v. IDEA 4. the IDEA includes much more extensive due process protections than Section 504, including the requirement that school officials provide written Individualized Education Programs for students who are covered by the IDEA.

IV. 504 v. IDEA 5. unlike the IDEA, Section 504 does not require parental consent although educators would be wise to seek it when providing accommodations for students.

IV. 504 v. IDEA 6. while the IDEA places an affirmative obligation on states, through local school boards to identify, assess, and serve students with disabilities, including those whose parents placed them in private schools, individuals seeking the protections of Section 504 must request accommodations from school officials and may be required to submit proof that they are qualified if there is a difference of opinion.

IV. 504 v. IDEA 7. while Section 504 covers students, employees, and others, including parents, in schools, the IDEA is limited to students.

IV. 504 v. IDEA 8. Unlike the IDEA’s zero-reject approach, school officials can rely on Section 504's three defenses to avoid being charged with noncompliance.

V. Conclusion Knowledge is power... Francis Bacon