Special Education Law in a Nutshell
Author:
Colker, Ruth
Edition:
1st
Copyright Date:
2018
16 chapters
have results for education law
Preface 5 results
- is to help law students, parents, lawyers and others recognize and understand the federal laws that protect students with disabilities. Students taking courses related to special education or education law, as well as education clinics, are among the intended beneficiaries. The book will also assist lawyers as well as parents of children with disabilities who want to learn more about this complex area of the law.
- reflects updates as of July 2017 in a changing area of the law. Where appropriate, this notes areas of uncertainty but it is too early to predict how the current administration may seek to make further changes in this area of the law through regulatory changes or changes in enforcement strategies. This is descriptive rather than predictive of the law of special education.
- of the relevant federal statutes and regulations pertaining to the field of special education. It is not intended to provide a comprehensive analysis of those laws. Case citations are provided but the citations are not exhaustive as might occur with a Treatise. With a few exceptions, there is little discussion of policy issues, although the relevant statutes, regulations, and case law are often placed in historical perspective for clarity.
- was made possible by a generous research grant from the Michael E. Moritz College of Law at The Ohio State University, and the research assistance of Lauren Sabo (Moritz ’18) and Moritz Reference Librarian Stephanie Ziegler. I would also like to thank Dr. Nicole Ofiesh, Director, Schwab Learning Center and Professor Nancy Mather, University of Arizona, College of Education, for their assistance with providing some of the examples used in this
- includes the statutory and regulatory language relevant to each topic. Each state has their own IDEA regulations so readers should be sure to consult their own state’s regulations when learning about this area of the law. Further, regulations are frequently amended; thus, regulations should be checked for possible updates.
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Chapter 1 History and Enactment of IDEA 47 results (showing 5 best matches)
- In 1975, there was enough political momentum for Congress to mandate that states receiving federal special education funds educate handicapped children. It enacted the Education for All Handicapped Children Act on November 29, 1975, by an overwhelming majority. The EAHCA received extensive consideration by Congress before being enacted into law. This consideration reflected its landmark importance as signaling a change in U.S. education policy—that all children should receive an adequate education irrespective of their disability status.
- Meanwhile, hostility toward students with disabilities was ideologically linked to hostility toward immigrants and a developing interest in intelligence testing. Concurrently, as a progressive gesture to increase the availability of public education, states began to enact compulsory education laws in the late nineteenth century. When large influxes of immigrants began to move to urban areas in the early twentieth century, some schools began having class sizes of eighty or ninety students, and schools were hard-pressed to find a way to reduce enrollment in the face of the new education laws. “Mental retardation” ...as “morons” and placed in special classes for children with intellectual impairments or what was then called mental retardation. Special schools or classes for the so-called mentally retarded were largely an urban phenomenon; in comparison, rural school districts typically sought to exclude or expel children who presented problems as a way to get around compulsory education...
- Public Law 91–230 to include 200 million dollars in funding to the states, conditioned on their willingness to “initiate, expand, and improve programs and projects, including [special education] preschool programs and projects.” This allocation, 15 percent of the total amount earmarked for “innovative and exemplary local programs,” represented a significant commitment. Public Law 91–230 repealed Title VI of the ESEA as of July 1, 1971, and created a separate Act called the Education of the Handicapped Act (EHA). This was the first freestanding special education statute.
- The 1975 statute created two important and interconnected concepts that are still basic to federal disability education law: the concept of a Free and Appropriate Public Education (FAPE) and the concept of an Individualized Education Program (IEP). A FAPE was defined as “special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge . . . and (D) are provided in conformity with the individualized education program.” An IEP was established as a written statement developed by a school district representative, the teacher, the parents or guardian of the child, and the child, when appropriate, to help the child attain a FAPE. This written statement must include five elements: (1) present levels of performance, (2) annual goals, (3) specific services and whether the child will participate in regular educational programs, (4) projected date of services, and (5) criteria for assessing whether objectives have...
- The second set of procedural safeguards created the “least restrictive rule.” This rule created the presumption that children with disabilities should ideally be educated with children who are not disabled “and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” This rule—which was borrowed directly from
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Chapter 9 Due Process Resolution 27 results (showing 5 best matches)
- The IDEA does not permit parties to seek financial compensation for injuries sustained from failing to have an adequate education. The most common remedies sought under the IDEA are for compensatory education for previous lost educational opportunities and tuition reimbursement when the parent removed the child from a public school and placed the child in a private school. While the statute does not specifically state that a Hearing Officer can order compensatory education, there is decades of case law establishing that remedy.
- The State must maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.
- If the complaint involves an application for initial services under this part from a child who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the child has turned three, the public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under § 300.300(b), then the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.
- D.M. v. New Jersey Department of Education, 801 F.3d 205 (3rd Cir. 2015)
- Although this case had an unusual procedural posture—the parents were suing the state Department of Education rather than the school district—the Third Circuit found that it was a case proceeding under the IDEA, so that the stay put rule applied. While recognizing case law, such as . at 217. In this case, the Third Circuit concluded that E.M. was entitled to stay put at a program that reflected the education identified in her IEP—a program that allowed mainstreaming.
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Chapter 3 IDEA Part B Eligibility 36 results (showing 5 best matches)
- Controversy about the learning disability category existed from the date of the creation of special education laws. When Congress enacted the Education for All Handicapped Children Act (EAHCA) in 1975 and mandated the education of all children with disabilities, a key supporter of the bill noted that “[n]o one really knows what a learning disability is.” 121 Cong. Rec. 25,531 (daily ed. July 29, 1975)(statement of Rep. Bill Lehman). Although Congress instructed the Commissioner of Education
- The question of whether a child “needs” special education and related services, and is therefore entitled to an IEP is different than the question of whether the IEP, itself, meets the requirements of providing the child with an “appropriate” Individualized Education Program. That issue will be discussed in Nutshell Chapter 6.
- The bottom line is that Congress has never allocated money to the states to cover even half of the expense of providing special education and related services to children with disabilities. Arguably, school districts have an incentive not to classify a child as “disabled” in order to avoid having to incur the expense of special education and related services. On the other hand, if they want children to be successful, they may want to classify a child as disabled to take advantage of whatever resources are available. Nonetheless, some people argue that school districts are too eager to classify children as “disabled” as an excuse to remove them from the regular classroom and put them in a substandard, segregated, special education classroom or institution. These controversies are worth noting to understand the various dynamics that may underlie a school district’s recommendation for a student’s disability classification.
- case, has a fluency impairment, the school district still needs to conclude if the child “needs” special education and special education and related services to be covered by the IDEA. As the First Circuit noted in , “a child who needs only accommodations or services that are not part of special education to fulfill the objective of the need inquiry does not ‘need’ special education.”
- Further, the school district argued that he did not “need” special education and related services because he was being academically successful in a regular classroom environment. The school had provided the student with mental health counseling, a one-on-one paraeducator, and a behavior service plan even though he wasn’t on an IEP. The parent had argued that she was entitled to have such services put in writing on a permanent basis through an IEP rather than rely on the school district’s voluntary offerings of such services that are not typically provided to general education students. The Ninth Circuit agreed with the parent. It found that it was incorrect to say that the child was learning adequately without special education and related services when the student was, in fact, receiving services that are typically limited to students with disabilities. The Ninth Circuit, also, did not even acknowledge that mere average performance, without specialized instruction, precludes a...
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Chapter 5 Evaluations 32 results (showing 5 best matches)
- Thank you for your recent correspondence to Mr. John Hager, Assistant Secretary for the Office of Special Education and Rehabilitative Services, U.S. Department of Education regarding issues related to identifying children and youth with specific learning disabilities. Your letter was referred to the Office of Special Education Programs (OSEP), for response.
- Department of Education and Human Services College of Education
- eligible for special education. If the response to all three questions is eligible for special education.
- A good example of a Child Find obligation can be found in a recent case brought against the Greenwich Board of Education.
- “defendants’ public awareness and outreach efforts were unlikely to result in a substantial increase in the number of referrals to preschool special education;”
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Chapter 7 School Discipline 20 results (showing 5 best matches)
- The University of the State of New York, New York State Education Department, Office of P–12 Education, Office of Special Education,
- Further, there was evidence of predetermination because the special education supervisor had completed the forms in advance of the meeting. The special education supervisor:
- the Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) is considering more restrictive programs or placements as a result of the student’s behavior; and/or
- The Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) must consider the development of a behavioral intervention plan for a student with a disability when the:
- At the scheduled meeting, the student, his parents, a school psychologist, two teachers, and the special education supervisor were present. The special education supervisor conducted the meeting, and the MDR team did not have a discussion of the ...education supervisor recorded on the applicable form that the student was suspended for assault, had refused a directive, and that the teacher had sustained injuries. The team did not consider the student’s account of the incident, which suggested that the teacher was not injured and that the student had merely impulsively responded to a teacher trying to interfere with his roughhousing with his girlfriend. The team also did not discuss the student’s disability with any specificity to see how it might have caused him to fail to respond to a directive or even engage in aggressive behavior. The student had severe ADHD and took a variety of medications, some of which had a decreasing effect on his ability to concentrate and act non-...
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Chapter 6 Individualized Education Programs 80 results (showing 5 best matches)
- First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. . . . If it cannot and the school intends to provide special education or to remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate.
- is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
- Oberti v. Board of Education of Clementon School District, 789 F. Supp. 1322 (D.N.J. 1992)
- Some commentators have suggested these cases reflect a misunderstanding of the role of appropriate mental health services for a child to be able to attain a meaningful education.
- Not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
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Title Page 2 results
Chapter 2 Early Childhood 17 results (showing 5 best matches)
- If the complaint involves an application for initial services under this part from a child who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the child has turned three, the public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under § 300.300(b), then the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.
- On July 6, 2015, the United States Department of Education issued a “Dear Colleague” letter in which it expressed concern that “a growing number of children with [autism spectrum disorder] may not be receiving needed speech and language services, and that speech-language pathologists and other appropriate professionals may not be included in evaluation and eligibility determinations under the Individuals with Disabilities Education Act (IDEA), Part B, or in meetings to develop the individualized educational program (IEP) or individualized family service plan (IFSP) under both Parts B and C of IDEA.”
- In addition to following the statutory and regulatory changes to this part of the IDEA, it is important to read relevant guidance from the United States Department of Education. On February 29, 2012, the United States Department of Education issued a “Dear Colleague” letter in which it reiterated that the Least Restrictive Environment (LRE) rule found within the IDEA applies to the placement of preschool children with disabilities
- settings such as inclusive early childhood programs or other community settings where typically developing children are included. Other jurisdictions may interpret IDEA’s free appropriate public education (FAPE) and LRE requirements as only allowing IDEA preschool special education and related services to be delivered in preschool programs operated in a public school building as opposed to non-public school settings, such as child care and Head Start where services can be delivered. In fact, a mixed delivery system of public and private high quality early childhood programs could be important to increasing the availability of inclusive opportunities for children with disabilities.
- The United States Department of Education has made available this model IFSP form, which would allow a state agency to fulfill the requirements of the IDEA.
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Table of Cases 24 results (showing 5 best matches)
Chapter 4 Section 504/ADA Eligibility 23 results (showing 5 best matches)
- Although this definition of disability is rather long and complicated, most education cases involving children in grades K–12 only involve prong (A)—actually disabled. Further, the rule of construction found in section (4)—that the definition of disability “should be construed in favor of broad coverage”—allows for a fairly broad scope of coverage in the education context. It is hard to imagine a situation in which a child who is covered by the IDEA’s definition of disability would not be covered by the ADA/Section 504 definition of disability. There are many situations, however, where a child may be “disabled” for ADA/Section 504 purposes but not be disabled under the IDEA because they need “accommodations” but not “special education and related services.” The interplay between the two statutes is complicated and requires special attention. It will be discussed below.
- Rosita is earning B’s and C’s in school and has trouble concentrating during class lessons. She takes longer than most students to complete in-class assignments. The classroom teacher does not think Rosita needs special education services but thinks she may have ADHD and could use, as an accommodation, extra time to complete assignments and assistance to stay on task during class. Depending on the effectiveness of a Section 504 plan, a parent may want to request an IEP if it appears that Rosita does need special education and related services to benefit from her education.
- There are two types of cases where the complaining party is not a “child with a disability” as defined by the IDEA and thus, can proceed directly under the ADA or Section 504: (1) where the parent, not the child, is the person with a disability and (2) where the child is not covered by the IDEA because the child does not need special education
- In a recent publication, the United States Department of Education provides examples of children who might be covered by Section 504 but not the IDEA. United States Department of Education, Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools (December, 2016), available at
- School districts often consider children with ADHD to be eligible for services under the IDEA. Even if Rosita does not need special education and related services in the early primary grades, she may need additional assistance in middle school or high school.
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Outline 12 results (showing 5 best matches)
Chapter 8 State Administrative Complaint 9 results (showing 5 best matches)
- The IDEA provides students and their parents with a number of mechanisms to assert that a school district is not IDEA compliant with respect to a student’s education. The most widely discussed mechanism is filing a due process complaint with the student’s school of residence and requesting an impartial due process hearing, which will be discussed in
- The key difference between complaints filed under those provisions and due process hearings is that there is no opportunity to assess the credibility of witnesses. The kinds of issues resolved in a complaint are often ones in which the facts can usually be determined from a paper record. The remedies also differ somewhat. In the complaint resolution process, the state may order corrective action such as compensatory services or monetary reimbursement where it finds a failure to provide appropriate services. Additionally, the state may order future provisions of services for all children with disabilities. Unlike the resolution of a due process hearing, the state is not likely to order remedies that require subjective determinations such as the provision of a publicly-funded private education for an individual child in the future. By contrast, the state is ...of expert witnesses, the state investigators can sometimes find that Individualized Education Programs are inadequate or...
- problems such as a lack of special education services at a juvenile facility or the overuse of seclusion and restraint.
- With respect to the second issue, the investigator read the relevant IEP language, and then proceeded to interview the parent and the Special Education Director. The IEP stated that the student received transportation as a related service. Both the parent and school district agreed that the school district had refused to provide transportation for a school field trip. The school district took the position that the parent should provide transportation and the school district would reimburse the parent for transportation. However, that is not what the IEP said. Accordingly, the investigator found in favor of the parent/student on this issue. The relief that was ...the contents of two IEP regulations that were relevant to the resolution of this issue. Had this matter been raised in a due process complaint, it is possible that the Hearing Officer would have ordered compensatory education for the lost opportunity to participate in a field trip, but such relief is unlikely in a...
- Chapter 9. An administrative complaint does not trigger that requirement although a state may choose to establish alternative dispute resolution processes, such as mediation, available to parties involved in an administrative complaint. If you check a state’s special education website, it will usually indicate whether it makes alternative dispute resolution processes available to resolve a state complaint. These services are usually offered for free to the parties (at the public’s expense).
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Index 16 results (showing 5 best matches)
WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: October 31st, 2017
- ISBN: 9781683285892
- Subject: Education Law
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell presents a very timely overview of legal topics relating to special education services for students in K-12 education. Topics covered include: historical background, Section 504 coverage, IDEA coverage, child find, evaluations, IEPs, disciplinary issues, due process hearings, and state administrative complaints. The chapters include model forms, sample evaluations and IEPs. It also includes discussion of the Supreme Court’s two recent decisions from the 2016-17 term. Finally, it provides examples from a variety of state practices to give the reader an excellent sense of the interaction between state and federal regulations in this complex area of the law.