A Brief History of the Legislation and Litigation A Brief History of the Legislation and Litigation that has Shaped Education and Special that has Shaped Education and Special

EducationEducationin the United Statesin the United States

Thomas P. DiPaola, Ph.D.Thomas P. DiPaola, Ph.D.

The Education of Children with Disabilities

How we got to where we areHow we got to where we arePL 94-142 EACHA of 1975PL 94-142 EACHA of 1975

The congressional bills which became The congressional bills which became Public Law 94–142 in 1975 were Public Law 94–142 in 1975 were originally introduced in 1971 originally introduced in 1971

their consideration by Congress had their consideration by Congress had an impact on the nation, fueling the an impact on the nation, fueling the interest in state legislation and in interest in state legislation and in litigationlitigation

Core Components of the IDEACore Components of the IDEAOriginally PL 94-142 Originally PL 94-142 The EAHCA of 1975 The EAHCA of 1975

Core ComponentCore Component ImplementationImplementationZero RejectZero Reject All means All All means All

Non-Discriminatory EvaluationNon-Discriminatory Evaluation No single instrument of evaluatorNo single instrument of evaluator

Free Appropriate Public Education Free Appropriate Public Education (FAPE) (FAPE) Individual Education ProgramIndividual Education Program(IEP)(IEP)

Appropriate as defined in the IEPAppropriate as defined in the IEP

Least Restrictive Environment (LRE)Least Restrictive Environment (LRE) Educate students with disabilities with Educate students with disabilities with nondisabled students to the maximum extent nondisabled students to the maximum extent appropriate ANDappropriate ANDDo not remove unless absolutely necessaryDo not remove unless absolutely necessary

Procedural SafeguardsProcedural Safeguards Protect students, parents and school personnelProtect students, parents and school personnel

Parental ParticipationParental Participation parents active participants in the development parents active participants in the development and delivery of special education program.and delivery of special education program.

Selected Litigation Selected Litigation involving civil rights and the involving civil rights and the education of children with education of children with

disabilitiesdisabilities Brown v. BOE (1954)Brown v. BOE (1954) - equal access v. - equal access v.

segregation segregation Hobson v. Hansen (1967) – tracking v. equal accessHobson 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 Diana v. State BOE CA (1970) – IQ tests culturally

biasedbiased Larry P. v. Riles (1972) – IQ cannot used for be sole Larry P. v. Riles (1972) – IQ cannot used for be sole

placementplacement PARC v. PA (1972) – FAPEPARC v. PA (1972) – FAPE Mills v. DC (1972) – zero rejectMills v. DC (1972) – zero reject

By 1974 over 36 “right to education” lawsuits filed in 25 By 1974 over 36 “right to education” lawsuits filed in 25 statesstates

RI Society Autistic Children v. State of RI (1972)RI Society Autistic Children v. State of RI (1972)

Selected Litigation Selected Litigation involving civil rights and the involving civil rights and the education of children with education of children with

disabilitiesdisabilities Stuart v. Nappi (1978) – Discipline and Stuart v. Nappi (1978) – Discipline and

disability condition Manifestation disability condition Manifestation DeterminationDetermination

S-1 v. Turlington (1981) - Manifestation S-1 v. Turlington (1981) - Manifestation Determination and cessation of servicesDetermination and cessation of services

Hudson Board v. Rowley (1982)Hudson Board v. Rowley (1982) – – comparable not “maximized”comparable not “maximized”

Irving District v. Tatro (1984)Irving District v. Tatro (1984) – related – related servicesservices

Smith v. Robinson (1984)Smith v. Robinson (1984) – Attorney Fees – Attorney Fees Honig v. Doe (1988)Honig v. Doe (1988) – behavior expulsion – behavior expulsion Tim W (1989)Tim W (1989)

Selected Litigation involving Selected Litigation involving civil rights and the education civil rights and the education of children with disabilitiesof children with disabilities

PARC v. PA (1972) – FAPE, basis for PL 94-142PARC v. PA (1972) – FAPE, basis for PL 94-142 January 7, 1971January 7, 1971 14 specific children & all others of similar “class”14 specific children & all others of similar “class” PARC 3 main pointsPARC 3 main points

Can learn with appropriate instructionCan learn with appropriate instruction ““education” is broader than traditional academicseducation” is broader than traditional academics Early educational experience is essentialEarly educational experience is essential

Settled on Settled on consent agreementconsent agreement time table, two “masters”time table, two “masters” FAPE = PROPERTY RIGHT – 14FAPE = PROPERTY RIGHT – 14thth Amendment Amendment DUE PROCESS – 5DUE PROCESS – 5thth Amendment Amendment Civil Rights Act & Brown v. BOECivil Rights Act & Brown v. BOE

LitigationLitigation

Mills v. DC (1972)Mills v. DC (1972) 7 plaintiffs (mental, physical, LD, EBD) – expelled7 plaintiffs (mental, physical, LD, EBD) – expelled DC claimed no money for programsDC claimed no money for programs

Trim other programsTrim other programs Advertise services = Advertise services = Child FindChild Find Governed by Congress = national applicationGoverned by Congress = national application

1010thth Amendment – Education is a State’s Right Amendment – Education is a State’s Right Can do away with BUT not just for someCan do away with BUT not just for some

““zero rejectionzero rejection” policies” policies Ages 5-17, up to 21Ages 5-17, up to 21

History of Legislation History of Legislation Concerning Special Concerning Special

EducationEducation

LegislationLegislation Civil Rights Act of 1964 – Title IVCivil Rights Act of 1964 – Title IV

Commerce Clause of 14Commerce Clause of 14thth Amendment – unitary systems Amendment – unitary systems

PL 89-10 – ESEA of 1965PL 89-10 – ESEA of 1965 PL 89-313 – ESEA amendments of 1965PL 89-313 – ESEA amendments of 1965 PL 91-230 EHA of 1970PL 91-230 EHA of 1970 PL 93-112 Rehabilitation Act of 1973 – PL 93-112 Rehabilitation Act of 1973 – Section 504Section 504

Access Access to funded programs – anti-discriminationto funded programs – anti-discrimination Family Education Rights Privacy Act – PL 93-380Family Education Rights Privacy Act – PL 93-380

November 19, 1974November 19, 1974 Mainstreaming ActMainstreaming Act”” Right to inspect, review & control recordsRight to inspect, review & control records Buckley amendment to PL 93-586Buckley amendment to PL 93-586 Amendment to ESEA – PL 89-313Amendment to ESEA – PL 89-313

Provides fundingProvides funding LRELRE

LegislationLegislation

Education of All Handicapped Children’s Act - Education of All Handicapped Children’s Act - PL 94-PL 94-142142 November 29, 1975November 29, 1975 Assessment/evaluation prior to placementAssessment/evaluation prior to placement FAPEFAPE

Services ages 5-21Services ages 5-21 LRELRE Due ProcessDue Process IEPIEP Revolutionary in SCOPERevolutionary in SCOPE

LegislationLegislation EAHCA Amendments of 1986 – PL 99-457EAHCA Amendments of 1986 – PL 99-457

Extension of Extension of rights to school for children rights to school for children ages 3-5ages 3-5

Funds for interventionFunds for intervention for children & for children & families families birth - 3 yearsbirth - 3 years

IFSPIFSP – Individualized Family Service Plan – Individualized Family Service Plan

PL 100-407 “Tech Act” Technology Related PL 100-407 “Tech Act” Technology Related Assistance for Individuals with Disabilities Assistance for Individuals with Disabilities

American Disabilities Act (American Disabilities Act (ADAADA) – PL 101-336) – PL 101-336 19901990 Prohibits discrimination at state and local Prohibits discrimination at state and local

levelslevels Based on Rehabilitation Act of 1973Based on Rehabilitation Act of 1973

LegislationLegislation Individuals with Disabilities Education Act (Individuals with Disabilities Education Act (IDEAIDEA) – PL 101-476) – PL 101-476

““handicapped” replaced by “handicapped” replaced by “disableddisabled”” 19901990 Name changeName change for PL 94-142 for PL 94-142 Added two exceptionalitiesAdded two exceptionalities

Traumatic Brain InjuryTraumatic Brain Injury AutismAutism

Program expansions of related servicesProgram expansions of related services CounselingCounseling RehabilitationRehabilitation Social workSocial work

Program creationsProgram creations Transition servicesTransition services Assistive TechnologyAssistive Technology

PL 102 - 569PL 102 - 569 Rehabilitation Act Amendments 1992Rehabilitation Act Amendments 1992 IDEA 97IDEA 97

AccommodationsAccommodations Alternative assessmentsAlternative assessments

P.L. 93-380, Education P.L. 93-380, Education Amendments of 1974Amendments of 1974

FAPEFAPE

Procedural SafeguardsProcedural Safeguards

Least Restrictive Environment (LRE)Least Restrictive Environment (LRE)

Federal FundsFederal Funds

P.L. 94-142, Education for All P.L. 94-142, Education for All Handicapped Children*Handicapped Children*

FAPEFAPE Procedural SafeguardsProcedural Safeguards LRELRE Nondiscriminatory evaluationNondiscriminatory evaluation Individualized Education ProgramIndividualized Education Program

*Reauthorization*Reauthorization

Public Law 99-372Public Law 99-372

The Handicapped Children’s Protection Act The Handicapped Children’s Protection Act of 1986of 1986

Reimbursement of legal fees for parents who Reimbursement of legal fees for parents who prevailprevail

Requires that the case and legal fees be Requires that the case and legal fees be discussed with lawyer prior to legal actiondiscussed with lawyer prior to legal action

Public Law 99-457Public Law 99-457

Education of the Handicapped Education of the Handicapped Amendments of 1986Amendments of 1986

Federal incentives to adopt Federal incentives to adopt Infant/Toddler ProgramsInfant/Toddler Programs

Extended FAPE to all children ages 3-5Extended FAPE to all children ages 3-5 Requires Individualized Family Service Requires Individualized Family Service

PlanPlan (IFSP) for each child/family served(IFSP) for each child/family served

Public Law 101-476*Public Law 101-476* Individuals with Disabilities Education Act Individuals with Disabilities Education Act

(IDEA) 1990(IDEA) 1990 Changed language of lawChanged language of law Added students with autism and traumatic Added students with autism and traumatic

brain injurybrain injury Required transition plan on IEPRequired transition plan on IEP Designated assistive technology as a related Designated assistive technology as a related

serviceservice Strengthen inclusion lawsStrengthen inclusion laws

*Reauthorization*Reauthorization

Public Law 101-336Public Law 101-336

Americans with Disabilities Act (ADA) 1990Americans with Disabilities Act (ADA) 1990

Expands civil rights for individuals with Expands civil rights for individuals with disabilitiesdisabilities

Requires the rights of equal access and Requires the rights of equal access and reasonable accommodation in employmentreasonable accommodation in employment

Public Law 105-17*Public Law 105-17*

Individuals With Disabilities Education Act Individuals With Disabilities Education Act Amendments of 1997Amendments of 1997

Restructured the lawRestructured the law Changes in the IEP team and content of IEPChanges in the IEP team and content of IEP Required states to establish a voluntary Required states to establish a voluntary

mediation programmediation program Added language concerning disciplineAdded language concerning discipline

*Reauthorization*Reauthorization

Public Law 107-110Public Law 107-110

Elementary and Secondary School Elementary and Secondary School Education Act Education Act

No Child Left Behind Act of 2001No Child Left Behind Act of 2001 Four principlesFour principles

AccountabilityAccountability Parent involvementParent involvement Highly qualifiedHighly qualified Research-based instructionResearch-based instruction

Public Law 108-445Public Law 108-445

Individuals with Disabilities Education Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004)Improvement Act of 2004 (IDEA 2004)

Excludes division’s responsibility for Excludes division’s responsibility for medical devices surgically implantedmedical devices surgically implanted

Highly qualified special education teachersHighly qualified special education teachers Provides early intervening services for non-Provides early intervening services for non-

special education studentsspecial education students

Public Law 108-445Public Law 108-445

Flexible allowances in the processes of Flexible allowances in the processes of evaluation, eligibility, and IEPevaluation, eligibility, and IEP

School division in which private school of School division in which private school of parentally placed student is located parentally placed student is located responsible for special education and related responsible for special education and related servicesservices

Changes in disciplinary procedures for Changes in disciplinary procedures for special education studentsspecial education students

ConstitutionConstitution

1414thth Amendment Amendment

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

Discipline of Special Needs Discipline of Special Needs Students under IDEAStudents under IDEA

Step 1: Functional Step 1: Functional Behavioral AssessmentBehavioral Assessment

A A FBAFBA determines the underlying cause or function of a child’s behavior that impedes 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.the learning of the child with a disability or the learning of the child’s peers.

Things to do: Things to do:

Verify the seriousness of the problemVerify the seriousness of the problem Define the problem in concrete termsDefine the problem in concrete terms Collect data, identifying problem behavior and possible causesCollect data, identifying problem behavior and possible causes Analyze the dataAnalyze the data Formulate and test a hypothesisFormulate and test a hypothesis

Step 2: Behavioral Step 2: Behavioral Intervention PlanIntervention Plan

A A BIPBIP is a written, specific, purposeful and organized plan is a written, specific, purposeful and organized plan which describes positive behavioral interventions and which describes positive behavioral interventions and

strategies that address a student’s social, emotional, and strategies that address a student’s social, emotional, and behavioral development (OSEP, 2003).behavioral development (OSEP, 2003).

An effective BIP should show a clear link between the An effective BIP should show a clear link between the FBA and the selected intervention strategies.FBA and the selected intervention strategies.

Intervention Features:• Acceptable Replacement

Behaviors• Antecedent Manipulations• Consequence Manipulations• Setting-Event Manipulations

Step 3: The ManifestationStep 3: The Manifestation

• Is there a relationship between the Is there a relationship between the child’s disability and the behavior? child’s disability and the behavior?

• If the IEP Team determines that the If the IEP Team determines that the child's behavior was a manifestation child's behavior was a manifestation of the disability, the child cannot be of the disability, the child cannot be subjected to long-term removal for subjected to long-term removal for the behavior. the behavior.

• The IEP Team may recommend a The IEP Team may recommend a change of placement if it concludes change of placement if it concludes the current placement is the current placement is inappropriate in light of the behavior.inappropriate in light of the behavior.

Supreme Court CasesSupreme Court Cases

Goss v. Lopez 419 Goss v. Lopez 419 U.S. 565 (1975)U.S. 565 (1975)

Do special education students Do special education students have due process rights?have due process rights?

All students have the right to All students have the right to procedural due process?procedural due process?

Students have the right to explain Students have the right to explain their conduct to an administrator their conduct to an administrator (short-term suspension).(short-term suspension).

Students must be given a hearing Students must be given a hearing before the school board for long-term before the school board for long-term suspensions and expulsion.suspensions and expulsion.

Honig v. Doe, 484 U.S. Honig v. Doe, 484 U.S. 305 (1988)305 (1988)

Can a student with a disability Can a student with a disability be suspended if a causal be suspended if a causal connection exists between connection exists between the disability and the the disability and the misconduct?misconduct?

Right of student to remain in Right of student to remain in educational placement pending a due educational placement pending a due process hearing.process hearing.

If a serious offense is a manifestation If a serious offense is a manifestation of the disability, IDEA prohibits of the disability, IDEA prohibits exclusion of student.exclusion of student.

Can a student with a disability Can a student with a disability be suspended if a causal be suspended if a causal connection exists between connection exists between the disability and the the disability and the misconduct?misconduct?

Right of student to remain in Right of student to remain in educational placement pending a due educational placement pending a due process hearing.process hearing.

If a serious offense is a manifestation If a serious offense is a manifestation of the disability, IDEA prohibits of the disability, IDEA prohibits exclusion of student.exclusion of student.

Circuit Court CasesCircuit Court Cases

Case requiring that "a trained and Case requiring that "a trained and knowledgeable group of persons" knowledgeable group of persons" meet to determine if a student's meet to determine if a student's misconduct "bears a relationship to misconduct "bears a relationship to his handicapping condition." his handicapping condition."

Required the manifestation Required the manifestation determinationdetermination

Declared that expulsion is a change Declared that expulsion is a change in placement for a child with a in placement for a child with a disabilitydisability

S-1 v. Turlington (1981) S-1 v. Turlington (1981) 5th Circuit Court Case5th Circuit Court Case

Commonwealth of Virginia v. RileyCommonwealth of Virginia v. Riley (1996) 4(1996) 4thth Circuit Court Circuit Court

Virginia challenged the U.S. Virginia challenged the U.S. Department of Education's Department of Education's policy that school districts must policy that school districts must provide educational services to provide educational services to students who have been students who have been suspended for more than 10 suspended for more than 10 days for reasons unrelated to days for reasons unrelated to their disabilities. their disabilities.

Court ruled:Court ruled: School must School must provide a free appropriate provide a free appropriate education to student even if education to student even if infraction is unrelated to infraction is unrelated to disability.disability.

District Court CasesDistrict Court Cases

Can students with disabilities be transferred to other Can students with disabilities be transferred to other schools in the division and/or receive alternative schools in the division and/or receive alternative placements?placements?

AW v. Fairfax County SchoolAW v. Fairfax County SchoolBoard, No. 03-1181 (4th Cir. Board, No. 03-1181 (4th Cir. 2004)2004) School district transferred a School district transferred a

student with a disability to student with a disability to another school in the division another school in the division for disciplinary reasons. for disciplinary reasons.

A transfer does not violate the A transfer does not violate the “stay put” provision of IDEA as “stay put” provision of IDEA as long as the student continues long as the student continues to receive related services.to receive related services.

Parent v. Osceola County Sch. Parent v. Osceola County Sch. Bd.,Bd.,

59 F.Supp.2d 1243 (M.D. Fla.59 F.Supp.2d 1243 (M.D. Fla.1999)1999) Alternative school placements Alternative school placements

for special education students for special education students with discipline issues do not with discipline issues do not have to be exactly the same as have to be exactly the same as the student’s regular school the student’s regular school placement. placement.

Lamont v. QuisenberryLamont v. Quisenberry (1984) (1984) District Court of OhioDistrict Court of Ohio

Long-term exclusion from a Long-term exclusion from a classroom to a severely classroom to a severely restricted environment like a restricted environment like a one-hour-per-week, home-one-hour-per-week, home-based tutoring program is based tutoring program is illegal.illegal.

Other Case LawOther Case Law

Questions, comments, discussion?Questions, comments, discussion?