1. Special Education Law Presented by: Jane R. Wettach
Clinical Professor of Law, Duke Law School
Director, Duke Children’s Law Clinic

2. History of Discrimination
Approximately 12 percent of children have disabilities that affect their ability to learn
Disabilities range from mild to profound
Historically, the most impaired were excluded from education altogether
Some (such as blind, deaf, mentally retarded) were segregated in special schools;
Less impaired were in public school but were often retained in grade level, considered lazy or stupid, or dropped out of school because their needs weren’t met

3. Challenges to Discrimination & the Right to be Educated
Early 1970’s – successful civil rights lawsuits brought on behalf of disabled children for inclusion in public schools
1975 – first federal law promising states federal funds to assist in educating children with disabilities -- Education for all Handicapped Children Act (94-142)
revisions to EHCA, including new name: Individuals with Disabilities Education Act
2004 – most recent revisions to IDEA

4. Special Education Laws
The Individuals with Disabilities Education Act – 20 USC 1400 et seq and 34 CFR Part 300
Education of Children with Disabilities – NCGS 115C-106 et seq
North Carolina Policies, issued by the Dept. of Public Instruction N.C. Policies Governing Services for Children with Disabilities

5. IDEA – The Basic Promise
All children with disabilities are entitled to
A “free, appropriate, public education”
In the “least restrictive environment”
Pursuant to an Individualized Education Program (IEP)

6. IDEA Entitlements
The right to be evaluated, at public expense, to determine eligibility for special education
The right to an Individualized Education Program that provides the specialized instruction and related services needed to allow the child to make educational progress

7. IDEA Entitlements
The right to be educated, to the maximum extent possible, with typically developing peers
The right to access, to the maximum extent possible, to the general curriculum

8. IDEA Entitlements
The right of parents to be involved in the decision-making process and the development of the IEP
The right to review of decisions made by the IEP team through due process appeal

9. Who is a “child with a disability”?
Child (ages 3 – 21) must have an identified physical or mental dysfunction that interferes with educational performance
Child must need “specially designed instruction” to make educational progress (not just accommodations)

10. What is a “FAPE”? A “free, appropriate public education” is
Special education (i.e., specially designed instruction to meet the unique needs of the child); and
related services (supportive services designed to enable the child to benefits from instruction – such as transportation and specialized therapies)
that allow the child to make reasonable educational progress.

11. What is a “FAPE”?
“Educational progress” is not just academic learning, but includes –
Socialization
Adaptive/functional skills
Language and communication
Reduction of behavioral problems

12. What is the “least restrictive environment”?
The LRE is the setting in which children with disabilities may be educated with typical children to the maximum extent possible

13. Least Restrictive Environment
Every child should be educated in the regular classroom, in the school he or she would attend if not disabled, with “supplementary aids and services.”
Special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily

14. Least Restrictive Environment
Disabled child need not be placed in a regular classroom if:
The child would not receive “educational benefit” from being educated in regular classroom; or
The marginal benefit of being educated in the regular classroom is outweighed by the benefits of a separate setting; or
The disabled child is a disruptive force in the regular classroom.

15. Special Education -- Eligibility
Child must be “referred” to be evaluated for possible special education services
A parent or teacher must make the referral. It must be –
in writing, addressed to the principal
dated
state reason for referral in terms of lack of educational performance
The school district has an obligation to identify children who may need special education, but parent should refer if there are concerns
The parents must agree for the evaluation to proceed.

16. Special Education -- Eligibility
Initial evaluation is usually conducted by a school psychologist (but it can be contracted out)
State policies set out required & recommended screenings & evaluations for each type of disability, as well as the criteria for eligibility in each category

17. Special Education -- Eligibility
School has 90 days from date of referral to beginning of services
If parent believes school evaluation is incomplete or wrong, parent can ask for an independent evaluation at school expense
School must either pay for the evaluation, or file a due process petition to allow a judge to decide if school is obligated to pay

18. Special Education -- Eligibility
After the evaluation is completed by the psychologist, eligibility is decided by a team of qualified personnel plus the parent, who review the testing
Parent may invite persons who have special expertise
Members of the team consider all information and then determine if child fits into one of the 14 eligibility categories (shown on next slide)

19. Categories of Eligibility
Autistic
Deaf
Seriously emotionally disabled (formerly BED)
Deaf-Blind
Hearing impaired
Multi-handicapped
Intellectually disabled (formerly EMD, TMD)
Orthopedically impaired
Other health impaired (includes ADD/ADHD)
Specific learning disabled (includes dyslexia)
Speech/language disabled
Traumatic brain injured
Visually impaired
Developmentally delayed (for children aged 3 – 7)

20. The IEP
Each eligible child must have an Individualized Education Plan (IEP), revised at least annually
IEP is “blueprint” for the child’s free, appropriate, public education in the least restrictive environment
IEP must be written by a team of persons knowledgeable about the child and the child’s needs, including parents

21. The IEP Must be designed to meet child’s unique needs, and include:
Current performance
Measurable, objective annual goals
Short term benchmarks/objectives required for children who take alternate assessments
A statement of the special education and related services, and supplementary aids and services to be provided
Amount of special education to be provided
Amount of related services to be provided
Classroom and testing modifications
Placement on continuum of settings

22. Follow up to IEP
IEP is revised annually, or as often as needed, to assure that child is making progress on goals
Child is re-evaluated at least every three years, or more often if needed (but not more than once a year unless parent and school district agree)

23. Entitlement to FAPE
A “FAPE” allows a child to make reasonable educational progress. For children with average cognitive skills, this generally means being taught the standard course of study, with appropriate supports & modifications, and passing from grade to grade.
A “FAPE” does not require services to “maximize the potential” of the student

24. FAPE Progress should be measurable & measured.
A parent has the right to ask for objective testing on a regular basis that reflects progress.
A parent has the right to have periodic reports –as often as regular report cards go out -- of progress on IEP goals

25. Reasonable Progress Some ways to measure progress
Grades, if student is in standard curriculum
Achievement of annual goals (so long as those goals change from year to year and represent progressively more sophisticated skills)
Improvement on standardized measures that compare student to nationally-normed standards

26. Methodology
As a general rule, a parent does not have a legal right to demand a preferred teaching strategy or methodology. School personnel may choose the methodology to be used.
Parents have the right to demand a methodology that works. A legal claim arises if the child does not make progress with the methodology chosen by the school personnel.

27. IEP Timelines
After parental consent for evaluation, determination of eligibility must be accomplished within 60 days
After determination is made that a child requires special education, an IEP must be developed within 30 days
IEP shall be implemented “as soon as possible” following the IEP meeting
From referral to placement in appropriate program may not exceed 90 days

28. Private Services at Public Expense
If the school district cannot provide services that allow a child to make reasonable educational progress, it must pay for those services to be provided privately
If the school district does not provide the services, a parent can unilaterally place the child in a private school and request reimbursement

29. Private Services at Public Expense
If the parent unilaterally places his child in private school, he must:
Give the school district at least 10 days notice that he finds the IEP unacceptable, plans to place his child in private school, and demands tuition reimbursement
If the school district declines, parent must file a due process petition and prove that the child’s proposed IEP did not offer a FAPE and that the private school chosen was appropriate for the child

30. Discipline & Special Ed Students
Disabled children are treated as “regular ed” students if they are suspended for fewer than 10 days (cumulative in a year) (i.e., no protections, no recourse)
Disabled children have additional rights for suspensions of more than 10 days (cumulative in a year, if suspensions form a pattern)

31. IDEA Discipline Protections
Students with IEP’s are entitled to these protections:
Manifestation Determination Review
Functional Behavior Assessment
Behavior Intervention Plan
Continuation of FAPE

32. Manifestation Determination Review
Before a disabled child can be suspended for more than 10 days, there must be a “manifestation determination review”
Relevant members of the IEP team shall determine whether the conduct in question was—
Caused by or had a direct and substantial relationship to the child’s disability, OR
A direct result of the LEA’s failure to implement the IEP

33. Manifestation Determinations
No manifestation: proceed with suspension,
BUT continue with FAPE in an alternative setting
Manifestation: no suspension allowed,
BUT services & placement can be reviewed and changed
MDR results are appealable
But no “stay-put protection”; child stays in alternative setting pending the appeal

34. “Interim Alternative Educational Setting”
Regardless of whether behavior is a manifestation, a student may be removed to an “interim alternative educational setting” for 45 school days if the student
Brought drugs or weapons to school
Caused serious bodily injury
While in interim alternative educational setting, student should be able to have access to the general curriculum and make progress on IEP goals.

35. Functional Behavior Assessments
If appropriate, the school should engage in a functional behavior assessment (FBA)of the disciplined student
FBA is a process designed to better understand the child’s behavior
What are the offensive behaviors?
How often and in what context do they occur?
What triggers bring on the behavior?
What is the underlying function of the behavior?
What are potential replacement behaviors that will accomplish the same function?

36. Behavior Intervention Plan
A BIP is a plan that is designed, based on the information gained in the FBA, to
Reduce the likelihood of the offensive behaviors occurring
Identify behavioral supports
Structure the steps to be taken when offensive behaviors occur (redirection, change environment, etc.)
Identify consequences

37. Continuation of FAPE
Special education students have the right to continued education during their period of suspension
They must be able to
Continue to participate in the general education curriculum, although in another setting
Progress toward meeting their IEP goals

38. Problem resolution under IDEA
Informal resolution
Mediation
Due process appeal
State complaint

39. Informal resolution
Conferences with teacher, principal, service providers, special education administrators
IEP meetings
Facilitated IEP
meetings

40. Facilitated IEP meetings
DPI will provide a facilitator for an IEP meeting
No cost to parents
Form to request on DPI (EC Division) website (Facilitation request)
May help parent have and take opportunity to contribute to the meeting
May help school personnel to take parental information into account

41. Special education mediation
A process offered free to parents and school systems, administered by the state dept. of education
A focused discussion, facilitated by a mediator, designed to bring parents and school personnel in a dispute to an agreement
Request mediation

42. Special education mediation
Voluntary on both sides
Confidential – what people say cannot be brought up in due process hearing or court (such as offers to settle in a certain way)
Ends either without an agreement or with a written mediation agreement that is enforceable in court

43. Due Process Appeal
Administrative hearing conducted by state administrative court
Formal, trial-like process with witnesses and documentary exhibits
Best for resolving significant differences of opinion about whether child is getting a FAPE in the LRE.
Judge can order compensatory services, reimbursement, future services, but not money damages

44. For legal help, contact:
Children’s Law Clinic
Duke Law School
Free legal advice and representation for low-income families living in an 11-county region around Durham, NC