Thursday, May 20, 2010

Special Education Law 101- Part I Revistied

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In a recent post, I mentioned that I wanted to rerun a previous series on the basics of special ed law, with a handful of updates . Here goes:

People often ask me what "FAPE" and "IEP" mean. This is a good question. At a conference I attended a few years ago, a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid.

As a result I decided to post a series of Special Ed Law 101 articles to foster a better understanding of the key concepts.

Special Ed Law 101- Part I
The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.

The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, Section 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with mental retardation, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services.
IDEA, Section 602(3)

The IDEA defines “FAPE” as:
special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D) are provided in conformity with the individualized education program required (…hereunder.).
IDEA, Section 602(9). See also 34 C.F.R. Sections 300.101 to 300.113.

The IDEA defines “special education” as:
Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education.
IDEA, Section 602(29).

The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of Board of Education of Hendrick Hudson v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). The facts of the case were that the student had a hearing impairment. The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes. Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student. The U. S. Court of Appeals for the Second Circuit affirmed. See, Rowley, 102 S.Ct. at 3040.

The Supreme Court reversed. Rowley, supra, 102 S.Ct at 3052. After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

The Supreme Court noted that the individualized educational program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability. Rowley, supra, 102 S.Ct at 3048. Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

The Supreme Court instructed lower courts (and again by implication, due process hearing officers) that the inquiry in cases alleging denial of FAPE should be twofold: First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, supra, 102 S.Ct. at 3051.

That completes the first installment of Special Education Law 101. In the next installment we'll explain least restrictive environment, or "LRE."

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  1. The key work in all this is access and educational benefit. My experience was that my son had access but wasn't capable i.e. he didn't qualify to tr a foreign language because it would not provide an educational benefit for him and he did not have the skills to speak another language(school's opinion). He was not allowed to access reg. ed. electives because he did not have the skills to do the reg. ed. curriculum - I know there should have been adaptations, but then we go back to educational benefit. I think my favorite is the access to reg. ed. curriculum. He had access as he was educated in a reg. ed school, again it wasn't their fault my child did not have the "necessary skills."

    Until there is a specific definition of "access" and "educational benefit" our kids are not going far in this world.

  2. Thanks for the comment Anon,


  3. Thanks for all of this good and applicable info. Your expertise came in handy when I used Zemanta on my blog. I hope Parents, Educators and Students learn from this info.

  4. Thanks ETH5A,

    We appreciate your kind words,