A Brief History of the Legislation and Litigation that has Shaped Education and Special Education in the United States Thomas P. DiPaola, Ph.D. The Education of Children with Disabilities

How we got to where we are PL EACHA of 1975 The congressional bills which became Public Law 94–142 in 1975 were originally introduced in 1971 The congressional bills which became Public Law 94–142 in 1975 were originally introduced in 1971 their consideration by Congress had an impact on the nation, fueling the interest in state legislation and in litigation their consideration by Congress had an impact on the nation, fueling the interest in state legislation and in litigation

Core Components of the IDEA Originally PL The EAHCA of 1975 Core Component Implementation Zero Reject All means All Non-Discriminatory Evaluation No single instrument of evaluator Free Appropriate Public Education (FAPE) Individual Education Program (IEP) Appropriate as defined in the IEP Least Restrictive Environment (LRE) Educate students with disabilities with nondisabled students to the maximum extent appropriate AND Do not remove unless absolutely necessary Procedural Safeguards Protect students, parents and school personnel Parental Participation parents active participants in the development and delivery of special education program.

Selected Litigation involving civil rights and the education of children with disabilities Brown v. BOE (1954) - equal access v. segregation Brown v. BOE (1954) - equal access v. segregation Hobson v. Hansen (1967) – tracking v. equal access Hobson v. Hansen (1967) – tracking v. equal access Tinker v. Des Moines (1969) – due process Tinker v. Des Moines (1969) – due process Diana v. State BOE CA (1970) – IQ tests culturally biased Diana v. State BOE CA (1970) – IQ tests culturally biased Larry P. v. Riles (1972) – IQ cannot used for be sole placement Larry P. v. Riles (1972) – IQ cannot used for be sole placement PARC v. PA (1972) – FAPE PARC v. PA (1972) – FAPE Mills v. DC (1972) – zero reject Mills v. DC (1972) – zero reject By 1974 over 36 “right to education” lawsuits filed in 25 states By 1974 over 36 “right to education” lawsuits filed in 25 states RI Society Autistic Children v. State of RI (1972) RI Society Autistic Children v. State of RI (1972)

Selected Litigation involving civil rights and the education of children with disabilities Stuart v. Nappi (1978) – Discipline and disability condition Manifestation Determination Stuart v. Nappi (1978) – Discipline and disability condition Manifestation Determination S-1 v. Turlington (1981) - Manifestation Determination and cessation of services S-1 v. Turlington (1981) - Manifestation Determination and cessation of services Hudson Board v. Rowley (1982) – comparable not “maximized” Hudson Board v. Rowley (1982) – comparable not “maximized” Irving District v. Tatro (1984) – related services Irving District v. Tatro (1984) – related services Smith v. Robinson (1984) – Attorney Fees Smith v. Robinson (1984) – Attorney Fees Honig v. Doe (1988) – behavior expulsion Honig v. Doe (1988) – behavior expulsion Tim W (1989) Tim W (1989)

Selected Litigation involving civil rights and the education of children with disabilities PARC v. PA (1972) – FAPE, basis for PL PARC v. PA (1972) – FAPE, basis for PL January 7, 1971 January 7, specific children & all others of similar “class” 14 specific children & all others of similar “class” PARC 3 main points PARC 3 main points Can learn with appropriate instruction Can learn with appropriate instruction “education” is broader than traditional academics “education” is broader than traditional academics Early educational experience is essential Early educational experience is essential Settled on consent agreement Settled on consent agreement time table, two “masters” time table, two “masters” FAPE = PROPERTY RIGHT – 14 th Amendment FAPE = PROPERTY RIGHT – 14 th Amendment DUE PROCESS – 5 th Amendment DUE PROCESS – 5 th Amendment Civil Rights Act & Brown v. BOE Civil Rights Act & Brown v. BOE

Litigation Mills v. DC (1972) Mills v. DC (1972) 7 plaintiffs (mental, physical, LD, EBD) – expelled 7 plaintiffs (mental, physical, LD, EBD) – expelled DC claimed no money for programs DC claimed no money for programs Trim other programs Trim other programs Advertise services = Child Find Advertise services = Child Find Governed by Congress = national application Governed by Congress = national application 10 th Amendment – Education is a State’s Right 10 th Amendment – Education is a State’s Right Can do away with BUT not just for some Can do away with BUT not just for some “zero rejection” policies “zero rejection” policies Ages 5-17, up to 21 Ages 5-17, up to 21

History of Legislation Concerning Special Education

Legislation Civil Rights Act of 1964 – Title IV Civil Rights Act of 1964 – Title IV Commerce Clause of 14 th Amendment – unitary systems Commerce Clause of 14 th Amendment – unitary systems PL – ESEA of 1965 PL – ESEA of 1965 PL – ESEA amendments of 1965 PL – ESEA amendments of 1965 PL EHA of 1970 PL EHA of 1970 PL Rehabilitation Act of 1973 – Section 504 PL Rehabilitation Act of 1973 – Section 504 Access to funded programs – anti-discrimination Access to funded programs – anti-discrimination Family Education Rights Privacy Act – PL Family Education Rights Privacy Act – PL November 19, 1974 November 19, 1974 Mainstreaming Act” Mainstreaming Act” Right to inspect, review & control records Right to inspect, review & control records Buckley amendment to PL Buckley amendment to PL Amendment to ESEA – PL Amendment to ESEA – PL Provides funding Provides funding LRE LRE

Legislation Education of All Handicapped Children’s Act - PL Education of All Handicapped Children’s Act - PL November 29, 1975 November 29, 1975 Assessment/evaluation prior to placement Assessment/evaluation prior to placement FAPE FAPE Services ages 5-21 Services ages 5-21 LRE LRE Due Process Due Process IEP IEP Revolutionary in SCOPE Revolutionary in SCOPE

Legislation EAHCA Amendments of 1986 – PL EAHCA Amendments of 1986 – PL Extension of rights to school for children ages 3- 5 Extension of rights to school for children ages 3- 5 Funds for intervention for children & families birth - 3 years Funds for intervention for children & families birth - 3 years IFSP – Individualized Family Service Plan IFSP – Individualized Family Service Plan PL “Tech Act” Technology Related Assistance for Individuals with Disabilities PL “Tech Act” Technology Related Assistance for Individuals with Disabilities American Disabilities Act ( ADA ) – PL American Disabilities Act ( ADA ) – PL Prohibits discrimination at state and local levels Prohibits discrimination at state and local levels Based on Rehabilitation Act of 1973 Based on Rehabilitation Act of 1973

Legislation Individuals with Disabilities Education Act ( IDEA ) – PL Individuals with Disabilities Education Act ( IDEA ) – PL “handicapped” replaced by “disabled” “handicapped” replaced by “disabled” Name change for PL Name change for PL Added two exceptionalities Added two exceptionalities Traumatic Brain Injury Traumatic Brain Injury Autism Autism Program expansions of related services Program expansions of related services Counseling Counseling Rehabilitation Rehabilitation Social work Social work Program creations Program creations Transition services Transition services Assistive Technology Assistive Technology PL Rehabilitation Act Amendments 1992 PL Rehabilitation Act Amendments 1992 IDEA 97 IDEA 97 Accommodations Accommodations Alternative assessments Alternative assessments

P.L , Education Amendments of 1974  FAPE  Procedural Safeguards  Least Restrictive Environment (LRE)  Federal Funds

P.L , Education for All Handicapped Children*  FAPE  Procedural Safeguards  LRE  Nondiscriminatory evaluation  Individualized Education Program *Reauthorization

Public Law  The Handicapped Children’s Protection Act of 1986  Reimbursement of legal fees for parents who prevail  Requires that the case and legal fees be discussed with lawyer prior to legal action

Public Law  Education of the Handicapped Amendments of 1986  Federal incentives to adopt Infant/Toddler Programs  Extended FAPE to all children ages 3-5  Requires Individualized Family Service Plan (IFSP) for each child/family served (IFSP) for each child/family served

Public Law *  Individuals with Disabilities Education Act (IDEA) 1990  Changed language of law  Added students with autism and traumatic brain injury  Required transition plan on IEP  Designated assistive technology as a related service  Strengthen inclusion laws *Reauthorization

Public Law  Americans with Disabilities Act (ADA) 1990  Expands civil rights for individuals with disabilities  Requires the rights of equal access and reasonable accommodation in employment

Public Law *  Individuals With Disabilities Education Act Amendments of 1997  Restructured the law  Changes in the IEP team and content of IEP  Required states to establish a voluntary mediation program  Added language concerning discipline *Reauthorization

Public Law  Elementary and Secondary School Education Act  No Child Left Behind Act of 2001  Four principles  Accountability  Parent involvement  Highly qualified  Research-based instruction

Public Law  Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004)  Excludes division’s responsibility for medical devices surgically implanted  Highly qualified special education teachers  Provides early intervening services for non- special education students

Public Law  Flexible allowances in the processes of evaluation, eligibility, and IEP  School division in which private school of parentally placed student is located responsible for special education and related services  Changes in disciplinary procedures for special education students

Constitution

14 th Amendment  Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Discipline of Special Needs Students under IDEA

Step 1: Functional Behavioral Assessment A FBA determines the underlying cause or function of a child’s behavior that impedes the learning of the child with a disability or the learning of the child’s peers. Things to do: Verify the seriousness of the problem Verify the seriousness of the problem Define the problem in concrete terms Define the problem in concrete terms Collect data, identifying problem behavior and possible causes Collect data, identifying problem behavior and possible causes Analyze the data Analyze the data Formulate and test a hypothesis Formulate and test a hypothesis

Step 2: Behavioral Intervention Plan A BIP is a written, specific, purposeful and organized plan which describes positive behavioral interventions and strategies that address a student’s social, emotional, and behavioral development (OSEP, 2003). An effective BIP should show a clear link between the FBA and the selected intervention strategies. Intervention Features: Acceptable Replacement Behaviors Antecedent Manipulations Consequence Manipulations Setting-Event Manipulations

Step 3: The Manifestation Is there a relationship between the child’s disability and the behavior? Is there a relationship between the child’s disability and the behavior? If the IEP Team determines that the child's behavior was a manifestation of the disability, the child cannot be subjected to long-term removal for the behavior. If the IEP Team determines that the child's behavior was a manifestation of the disability, the child cannot be subjected to long-term removal for the behavior. The IEP Team may recommend a change of placement if it concludes the current placement is inappropriate in light of the behavior. The IEP Team may recommend a change of placement if it concludes the current placement is inappropriate in light of the behavior.

Supreme Court Cases

Goss v. Lopez 419 U.S. 565 (1975) Do special education students have due process rights?  All students have the right to procedural due process?  Students have the right to explain their conduct to an administrator (short-term suspension).  Students must be given a hearing before the school board for long-term suspensions and expulsion.

Honig v. Doe, 484 U.S. 305 (1988) Can a student with a disability be suspended if a causal connection exists between the disability and the misconduct?  Right of student to remain in educational placement pending a due process hearing.  If a serious offense is a manifestation of the disability, IDEA prohibits exclusion of student. Can a student with a disability be suspended if a causal connection exists between the disability and the misconduct?  Right of student to remain in educational placement pending a due process hearing.  If a serious offense is a manifestation of the disability, IDEA prohibits exclusion of student.

Circuit Court Cases

 Case requiring that "a trained and knowledgeable group of persons" meet to determine if a student's misconduct "bears a relationship to his handicapping condition."  Required the manifestation determination  Declared that expulsion is a change in placement for a child with a disability S-1 v. Turlington (1981) 5th Circuit Court Case

Commonwealth of Virginia v. Riley (1996) 4 th Circuit Court  Virginia challenged the U.S. Department of Education's policy that school districts must provide educational services to students who have been suspended for more than 10 days for reasons unrelated to their disabilities.  Court ruled: School must provide a free appropriate education to student even if infraction is unrelated to disability.

District Court Cases

Can students with disabilities be transferred to other schools in the division and/or receive alternative placements? AW v. Fairfax County School Board, No (4th Cir. 2004)  School district transferred a student with a disability to another school in the division for disciplinary reasons.  A transfer does not violate the “stay put” provision of IDEA as long as the student continues to receive related services. Parent v. Osceola County Sch. Bd., 59 F.Supp.2d 1243 (M.D. Fla. 1999)  Alternative school placements for special education students with discipline issues do not have to be exactly the same as the student’s regular school placement.

Lamont v. Quisenberry (1984) District Court of Ohio  Long-term exclusion from a classroom to a severely restricted environment like a one-hour-per-week, home- based tutoring program is illegal.

Other Case Law

Questions, comments, discussion?