Monday, September 10, 2012

Special Education Law 101 - Part I

"No Child Left Behind" sculpture (pa... (Photo credit: StrangeInterlude)
This is first of a multi-part series of posts on the basic nuts and bolts of special ed law. We will review the statute and regs, as well as the supreme court decisions and a few of the most important opinions of the circuit courts of appeal.  This is just an overview.  There is a LOT more!!!!!  

So we hope that you enjoy the introduction, but if you get into a problem, consult a lawyer, preferably one experienced in this complex area.

A.   Sources of Special Education Law

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.  Many state have adopted their own special education regulations.  

Court decisions that interpret the IDEA issued by the courts of your state, by the United States Supreme Court, and by the federal Circuit Court of Appeals and the federal District Courts that cover your state or District are binding.  Other court opinions and hearing officer decisions issued under the Act may be cited and used if you find their reasoning to be persuasive, but they are not binding precedent.  Similarly, opinions issued by the federal Department of Education interpreting the Act provide helpful guidance, but they are also not binding precedent.

Although the IDEA and the federal regulations, and corresponding state regulations and policies, and the relevant decisions interpreting them are by far the most important sources of special education law, other statutes do sometimes become involved.  The Rehabilitation Act of 1973, 29 U.S.C.  Section 794, et. seq., commonly referred to as “Section 504,” prohibits discrimination on the basis of disability in certain federally funded programs, including education.  The federal regulations that implement the statute are found at 34 C.F.R. Part 104.

Another statute that will impact upon special education law is the No Child Left Behind Act, or ESEA, 20 U.S.C. Section 6301, et. seq., hereafter sometimes referred to as “NCLB.”  The regulations implementing NCLB are located at 34 C.F.R. Part 200.

Finally, another law that pertains to educational records is the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g, et. seq., hereafter sometimes referred to as “FERPA.”  The regulations implementing FERPA are found at 34 C.F.R. Part 99.

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  1. It really depressed me just now to sit down and read the Wikipedia article on NCLB. I might as well admit I’m not a fan of that particular act, as a product of the education system it created, where classes for a month every year were interrupted to make sure we knew the best strategies to maximize scores on tests not really coherent with how the state education system taught.

    The problem with it from the perspective of dealing with students with learning disabilities is that so often, the only constant they have is an instructor able to care for them as an individual. And yet, should the student find schooling simply impossible to cope with, and I saw this growing up, they can be reassigned to new individuals. I don’t really know what that must be like for such a student. But I’m not honestly sure, regardless of closing an achievement gap, if it’s fair treatment, or at least the most beneficial thing that could be done.

  2. All that and I forgot to comment on the post itself. I’m sure it as a series will be a bit of an emotional read for me. Learning, for example, that IDEA has been in effect since 1990, and only now, as a Junior in college, do I see students in this state really getting help that could be called commendable. Thanks for posting, looking forward to more!

  3. Sarah,

    Thanks for your supportive and insightful comments.