CHAPTER 10Rights of Students with Disabilities

JUDICIAL OPINIONS

Free appropriate public education (FAPE) Extended school year (ESY) Regression-recoupment dilemma Procedural safeguards Individualized education programs (IEP) Attention deficit hyperactivity disorder (ADD/ADHD) Least restrictive environment (LRE) Placement in private schools Related services Discipline and “stay put” provisions Compensatory education Attorney’s and expert’s fees Liability for reimbursement of parents

HISTORY

Education for All Handicapped Children Act (EAHCA) – 1975 (PL 94-142)

Amended: 1978, 1983, 1986, 1990, 1997, 2004 Individuals with Disabilities Education Act (IDEA)

– 1990 IDEIA (“Improvement” added) – 2004 Brown v. Board of Education (1954): set the

precedent for extension of educational access to all children, including those with disabilities

EDUCATION FOR ALL HANDICAPPED CHILDREN ACT (EAHCA)

Provisions: A free appropriate public education (FAPE) An individualized education program (IEP) Special education services Related services Due process procedures Least restrictive environment (LRE) Ages 3-18

EDUCATION FOR ALL HANDICAPPED CHILDREN ACT (EAHCA)/ INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

Amendments: Ages 3-21 (1980) Preschool included (1986) Birth to age 2 (1986) Receipt of attorney fees, if successful appeal (1986) Disabilities extended to include: head trauma and

autism (1990) Transition services; age 16 and older (1990) Eligibility, evaluation, programming, private school

placements, discipline, funding, attorney’s fees, dispute resolution, and procedural safeguards (1997)

INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

Amendments: Funding, definitions for children with learning

disabilities, dispute resolution procedures, disciplinary rules for children with disabilities, manifestation criteria (2004)

Coordinate language with NCLB (e.g. “highly qualified” teacher, AYP) (2004)

INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

IDEA Definition of Children with Disabilities: Mentally retarded Hard of hearing or deaf Speech and language impaired Visually handicapped or blind Seriously emotionally disturbed Orthopedically impaired Autism Traumatic brain injury Specific learning disabilities Otherwise health impaired

FREE APPROPRIATE PUBLIC EDUCATION (FAPE)

Definitions: Provided at public expense and without charge Meet standards of state education agencies Include preschool, elementary and secondary

education Services conform to IEP’sAppropriate – not defined by Congress but rather

by judicial opinions.

Mills v. Board of Education of District of Columbia

(U.S. District Court, District of Columbia, 1972)

INDIVIDUALIZED EDUCATION PROGRAM (IEP)

Definition:“ … a written statement for each child with a

disability developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities …” (Honig v. Doe, 1988)

INDIVIDUALIZED EDUCATIONAL PROGRAM

IDEA (1997)Requirements: Present level of performance Measurable annual goals Program modifications Participation in achievement assessments Evaluation procedures related to annual

goals Periodic report cards

Board of Education of Hendrick Hudson Central School District v. Rowley

(U.S. Supreme Court, 1982)

Timothy W. v. Rochester School District(U.S. Court of Appeals, First Circuit, 1989)

EXTENDED SCHOOL YEAR (ESY)

Must be expressly stated in a child’s IEP Question: What are the determining

standards? Answer: Regression-RecoupmentRegression – gradual loss of memories and

acquired skills; reversion to an earlier mental or behavioral level

Recoupment - to make up (recoup) for something lost

LEAST RESTRICTIVE ENVIRONMENT (LRE)

“To the maximum extent appropriate, children with disabilities, … are to be educated with children who are not disabled …only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

MAINSTREAMING

Preferred term: Inclusion(IEP: Requires a statement of the child will not

participate with non-disabled children.)

Four-Factor Analysis:1. Educational benefits of placement in a regular

classroom2. Nonacademic benefits of placement 3. Effect the student has on the teacher and

other children4. Cost

Oberti ex rel. Oberti v. Board of Education of Clementon School District

(U.S. Court of Appeals, Third Circuit, 1993)

Beth v. Van Clay(U.S. Court of Appeals, Seventh Circuit, 2002)

ATTENTION DEFICIT HYPERACTIVITY DISORDER

Definition: A behavioral disorder most commonly

defined by the criteria of inattention, hyperactivity, and marked impulsiveness.

Eligibility for IDEA Services:1. Other Health Impaired2. Specific Learning Disability3. Seriously Emotionally DisturbedSection 504

Alvin Independent School District v. A.D.(U.S. Court of Appeals, Fifth Circuit, 2007)

PRIVATE SCHOOL PLACEMENT & SERVICES

Special education and related services to meet the needs of disabled children in private schools must be provided by the local education agency

Service to private schools must be “comparable” Placement in a private school must be approved

before funding is required

Foley v. Special School District of St. Louis County(U.S. Court of Appeals, Eighth Circuit, 1998)

RELATED SERVICES

“ … means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services) … to benefit from special education.”

Irving Independent School District v. Tatro(U.S. Supreme Court, 1984)

DISCIPLINE

Misconduct not related to disability - OR – an alternative or more-restricted placement needs to be considered

Suspension – ten (10) days maximum or considered a change in placement

“Stay-Put” Provision – child remains in current educational placement until an alternative placement can be determined – UNLESS –

weapon possession or illegal drugs (alternative setting for not more than 45 days)

DISCIPLINE

Manifestation Determination – meeting to decide if the inappropriate behavior of the child is related to his/her disability

Even if the discipline is not a manifestation of a child’s disability and discipline consequences are imposed (e.g. suspension or expulsion), services may not be terminated

Honig v. Doe(U.S. Supreme Court, 1988)

OTHER ISSUES

Compensatory Education – services beyond age 21 if courts determine deprivation of FAPE

Attorney’s and Expert’s Fees – may be awarded by the courts to parents who prevail in lawsuits

REHABILITATION ACT OF 1973, SECTION 504

“No otherwise qualified handicapped individual … shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

DIFFERENCES: IDEA VS. SECTION 504

IDEA – very specific rules and procedures in providing FAPE

Section 504 – prohibits discrimination against all persons with disabilities regardless of whether they require educational services or not

Section 504 – applies only to agencies receiving federal financing; IDEA – applies to state and local agencies receiving funds under IDEA (state and/or federal)

SECTION 504 AND AIDS

Child with AIDS is not considered handicapped as defined in IDEA unless the child needs special education

May be considered “other health impaired”

Martinez v. School Board of Hillsborough County

(U.S. Court of Appeals, Eleventh Circuit, 1988)