Students with Disabilities - Module 3 of 4

Module 3:  Students with Disabilities

Of all the rights to access to education, the rights of students with disabilities likely has the greatest day-to-day impact on public schools. Various federal statutes create obligations for school systems to provide educational services to students facing physical, emotional, intellectual, developmental and psychiatric obstacles to achieving an education. These statutes include the Rehabilitation Act, the American with Disabilities Act and the Individuals with Disabilities Education Act.

The Statutory Framework           

Before these statutes were enacted, there were some judicial decisions that began to establish equal opportunity and access to education for disabled children. Based on legal theories rooted in the seminal equal protection case in public education Brown v. Board of Education,[1] advocates for these children argued that it was a denial of equal protection to exclude them from educational services. 

Two federal district court decisions in 1972 were significant in this regard. In Pennsylvania Association for Retarded Children v. Pennsylvania, a federal district court held that intellectually developmentally disabled children from ages six through twenty-one should be provided access to free public education in regular classrooms when possible and special classrooms when necessary. [2]  Shortly thereafter, in Mills v. Board of Education of District of Columbia, another federal district court held that all school-aged children with disabilities must be provided with free and adequate public educations.[3]

Around the same time, Congress enacted several statutes that created detailed structures for providing disabled children with educational opportunities. It is these statutes: The Rehabilitation Act, the American with Disabilities Act, and, most notably, the Individuals with Disabilities Education Act, that provide the framework for free and adequate public education for disabled children in the United States today.

The Individuals with Disabilities Education Act was originally enacted in 1975 under the title “Education for All Handicapped Children Act,” but was renamed in 1990.[4]  At that time, it also was amended substantially (including changing the term “handicapped” to “children with disabilities”). This statute, usually referred to as IDEA, requires school systems to provide free appropriate public education and related services to all eligible children with disabilities.

Another important piece of legislation affecting how schools educate children with disabilities is Section 504 of the Rehabilitation Act, enacted in 1973.[5] Section 504 prohibits discrimination against handicapped persons in programs receiving federal funds, including educational programs receiving such funds. Finally, the Americans with Disabilities Act,[6] enacted in 1990, extended some non-discrimination provisions to the private sector and mandated reasonable accommodations for disabled children.[7]

These statutes overlap a great deal. For instance, both the IDEA and Section 504 of the Rehabilitation Act require that schools provide a free and appropriate public education, typically referred to with the acronym “FAPE.”[8] However, the statutes have somewhat different scopes. Of these statutes, the IDEA has the greatest impact on school systems.   

The IDEA Evaluation Process

Congress enacted the IDEA to try to ensure that the educational needs of children with disabilities were met.[9] The IDEA is a conditional funding statute that acts like a contract between the federal government and educational providers. It supplies money to the state for educational services to children with disabilities, and the state governments provide those services.[10] The stated goal of the IDEA is to ensure that all children with disabilities receive free appropriate public education in the least restrictive environment.[11] This means IDEA-eligible students are entitled to receive special education and related services that are provided without any cost to the parents or students, provided through an appropriate educational program under public supervision.

For a child to be eligible for services under the IDEA, the child must be found to have an eligible disability and that disability must cause that child to need special educational and related services.[12] Eligible disabilities include mental impairments, hearing impairments, speech or language impairments, visual impairments, severe emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments and specific learning disabilities. These conditions must require special education, which means special instruction designed to meet the unique needs of the child. “Related services” are those that the child needs to be able to take advantage of the special educational services; for example, special transportation needs to get to and from school. Children with disabilities who don’t need special educational services (such as those with orthopedic impairments) are not IDEA-eligible but are still entitled to reasonable accommodations under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act.[13]

The IDEA places an affirmative duty on the state to identify children with disabilities needing these services, which is called the “child find” duty.[14] States fulfill these duties through screening tests, such as vision tests, that are administered to all school students. Beyond that, teachers and school personnel must attempt to identify IDEA-eligible students and refer them for evaluation. Parents or medical professionals also may refer children for IDEA evaluation.[15]

Screening tests given to all students do not require parental consent, but individualized evaluations do.[16] Even where the parents refuse consent, however, the school district continues to have a duty to provide a free and appropriate public education to children with disabilities.  When parents refuse individual evaluations, school officials may seek to encourage parental cooperation through counseling or mediation. If the parents continue to refuse, and the school officials believe evaluation is needed, the school may initiate a hearing before an IDEA hearing officer to have that office grant permission for evaluation over parental objection. Similarly, if the parents seek an evaluation but the school refuses, the school must provide written notice, and the parents may seek a due process hearing. If the parents disagree with the results of an evaluation, they also may seek due process hearings.[17] 

The evaluation process must take place within sixty days of the decision to evaluate the child, although states may create shorter deadlines under their own laws.[18]  Failure to meet the deadline can be the basis of a due process complaint. 

The evaluation must be thorough, and the school is required to use a variety of tests and data collected from parents and teachers. The regulations under the IDEA prohibit relying on one single testing method for a disability.[19] If parents dispute the adequacy of the evaluation procedures, they are entitled to bring a complaint for a due process hearing. 

The Individualized Education Program

After determining that a child is eligible for IDEA services, the school must create a team to formulate the child’s Individualized Education Program, or “IEP.”[20] The functions of this team are to determine what services are appropriate, how to provide them and to ensure that these services are, in fact, provided.[21]  The Supreme Court has held that “appropriate” does not mean that the services necessarily must maximize the child’s potential, but merely that they permit the child to benefit from special education services.[22]  The IEP Team must include the child’s parents or guardians and generally includes a representative of the school district, a special education teacher or a general education teacher when the child is not being placed in special education classes and may include experts in particular developmental or disability issues.[23] 

The IEP must be in writing and must be shared with the parents or guardians of the child. The written IEP includes a statement about the child’s present academic and functional levels, measurable goals for the child and what services the child will need to achieve those goals. The IEP must provide the child with the least restrictive environment that is consistent with achieving its goals.[24] This means providing the child with as much mainstream regular education as is possible in light of the goals for the child.  To the extent the child is not mainstreamed, the IEP must explain the reason for that decision.[25]

If the necessary services can be better provided by a private school, the school district may place the child in such a school.[26] The IEP must be reviewed periodically, no less often than annually. If the parents dispute that the IEP will provide the child with appropriate educational services, the parents may file a complaint for a due process hearing.[27] The parents may also dispute that the IEP is being carried out properly. [28]

Due process rights under the IDEA

The IDEA creates due process rights for parents or guardians of potentially IDEA-eligible children.These rights include the opportunity to review the school’s records about the child, to attend all meetings concerning the identification, evaluation and educational plan for the child, to obtain an independent educational evaluation for their child and to have the child receive a free appropriate public education.[29] The parents or guardians have rights to receive notice of all significant actions along the way, which must be in writing and describe the school’s proposed course of action and explanation of why that course of action was chosen. 

The notice must also provide a description of other options the team considered and explain why these options were not chosen.[30] Furthermore, the notice must inform the parents of their right to a due process hearing if they dispute the action and provide them with sources to contact to get help in understanding their rights.[31] The school district must also provide parents with a model form for an IDEA due process complaint, in the parents’ native language if that is feasible.[32]

There are a number of points along the process of identifying, evaluating, developing and implementing a plan for an IDEA-eligible child that might cause disputes between the school system and the parents.These disputes may be resolved through due process hearings in front of an “impartial due process hearing officer” whom the state or school system appoints.[33] The officer must have knowledge of the IDEA and its regulations and the nature of special education generally.[34] Because the officer must be impartial, she cannot be an employee of the school system or any other educational service provider which might be involved in providing services to the child and cannot have a personal or professional interest that would impair her objectivity.[35]

Parents or guardians have a right to be represented by counsel at the due process hearing and they also have a right to be accompanied by a special education expert of their own choosing. At the hearing, the parents or guardians may present evidence, cross-examine witnesses and compel the attendance of their own witnesses. The findings of the hearing must be in writing or in electronic format and there must be a verbatim record of the hearing.[36]

The Supreme Court, in Board of Education v. Rowley, [37] held that federal special education law requires only that a special education program be reasonably calculated to provide a child with a disability some "educational benefit." The hearing officer’s decision is governed by that standard. The officer is to determine only whether the school followed proper procedures and respected the parents’ rights for notice and participation, and that the IEP is reasonably calculated to provide educational benefit. The officer may not impose her own views of what the best possible program might be. In some states, however, this IDEA standard gives way to a higher standard established by the state's special education laws. In Massachusetts, for example, a student with special educational needs is entitled to a program that offers him the opportunity to progress to the maximum feasible extent consistent with his potential.[38]

A parent may bring an action against the school district in federal district court to review the due process hearing.[39] The court will apply a “modified de novo” review, which means that when reviewing the hearing officer’s decision, the judge must assume that the hearing officer’s factual findings are correct. The judge may not substitute her own views of sound educational policy for those of the hearing officer.[40]

The Rehabilitation Act and the Americans with Disabilities Act

Though the IDEA is the most significant of the federal statutes that try to ensure that children with disabilities have access to education, the Rehabilitation Act and the Americans with Disabilities Act have impacts, as well. 

Section 504 of the Rehabilitation Act prohibits schools from discriminating against children with disabilities. In addition, it requires schools to provide disabled children with reasonable accommodations to enable them to participate in educational activities.[41] Section 504 covers all programs or activities, whether public or private, that receive any federal financial assistance, giving this law very broad and powerful application.   

Reasonable accommodations may include alternative testing arrangements without time restrictions, allowing the children to sit in the front of the class, modified homework assignments within the child's abilities and providing the child with whatever reasonably feasible services he needs to have as close to normal a school experience as possible. On the other hand, accommodations that would be unreasonably costly, cause excessive administrative burdens or cause health and safety risks to the student or to others are not “reasonable accommodations” and need not be provided, as they constitute “undue burdens” on the school system.[42]

Section 504 has its own criteria for who is eligible for protection. It protects any person who has a physical or mental impairment substantially limiting one or more major life activities, has a record of such impairment, or is regarded by others as having such an impairment. [43] “Major life activities” include walking, seeing, hearing, speaking and the like, and the ability to do the typical daily tasks of caring for oneself.[44]

Though protecting a slightly different population of students than the IDEA, the regulations of the Department of Education under Section 504 also require schools to provide a free appropriate public education to students.[45] This right, and the right to reasonable accommodations in school, may be enforced either through filing a civil action  or by filing a complaint with the Department of Education’s Office of Civil Rights. Complaints with the Office of Civil Rights must be filed within 180 days of the alleged acts of discrimination.[46]

The Americans with Disabilities Act extends the same sort of protection as is found in Section 504 to the private sector.[47] Title II of that Act applies to state and local governmental programs, including schools.[48] The Act has the effect of applying many of the Section 504 anti-discrimination rules that already applied to public schools to private schools, as well.

In our next module, we’ll turn to the rights enjoyed by public school students while in school, such as due process and freedom of expression and the limitations on those rights.