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Legal Issues Special Education and Adapted Physical Education Sources of Law Constitutional federal state Statutes federal state Case or Common Law federal state Constitutional Law This is the fundamental laws of a nation or state Sets fundamental rights

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Legal Issues

Special Education and

Adapted Physical Education


Sources of Law

  • Constitutional

    • federal

    • state

  • Statutes

    • federal

    • state

  • Case or Common Law

    • federal

    • state


Constitutional Law

  • This is the fundamental laws of a nation or state

  • Sets fundamental rights

  • Example - 14th amendment to US. Constitution provides for equal protection


Statutes

  • Are an act of the legislative body.

  • Basically, it is a law that the Congress or a state legislature has passed

  • Statutes must be consistent with constitutions.

  • Example - IDEA


Regulations to Statutes

  • Guidelines written by agency charged with implementing and enforcement of statute

  • Written in greater detail than the law

    • OSERS - IDEA

    • OCR- Section 504


Case Law

  • Decision of the courts that interpret:

    • constitutional law

    • statutes

  • There are Federal and State Courts


Federal Courts

  • Trial or District Court

    • within one state

  • Circuit Court of Appeals

    • multiple states

  • Supreme Court

    • national

  • decisions are binding only within a court’s jurisdiction


State Courts

  • Trial Court

  • Appellate Court

  • Court of Last Resort


Legislative History of Special Education


Constitutional Foundations

  • 1900's - 14th Amendment

    • Equal protection and due process

    • Right to liberty - confinement in an institution curtails on liberty

  • 1954 - Brown v. Board of Educ. (Topeka, KS)

    • segregation of races in public schools is illegal (separate but equal is not equal)

  • 1971 - PARC v. Commonwealth of PA

    • every child in state guaranteed free public education; parents given due process before change in plan.


Legislative History of Special Education

  • 1961 PL 87-276 (Special Education Act)

    • Train teachers of the deaf

  • 1965 PL 89-10 (Elem. and Sec. Education Act)

    • Programs for economically disadvantaged

  • 1966 PL 89-750 (Amendments to E & S)

    • Created Bureau of Ed. for the Handicapped

  • 1973 PL 93-112 Section 504 (Rehab. Act.)

    • Cannot discriminate against people with disabilities


Legislative History (cont.)

  • 1975 PL 94-142

    • Education for All Handicapped Children Act

  • 1983 PL 98-199 (Amendments to EHA)

    • re-emphasis on birth to 5-years.

  • 1986 PL 99-457 (Amendments to EHA)

    • emphasis on birth to 2 years; training of parents

  • 1990 PL 101-476 (Amendments to EHA)

    • changed name to IDEA; emphasis on transition

  • 1990 PL 101-336 (Americans with Disab. Act)


PL 93-112: Section 504 of Rehab. Act

  • General rehabilitative needs of individuals with disabilities

  • Civil rights of individuals with disabilities

    • based on 5th & 14th Amendments to U.S. Constitution (equal protection and due process)

    • unfunded mandate - no money appropriated


Sec. 504 - Equal Opportunity

"No otherwise qualified handicap individual in the U.S....shall, solely by reason of handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."


Sec. 504 - Provisions

  • Broad definition of disability (compared to IDEA)

  • Includes education, social services, & employment

    • Education:

      • barrier-free accessibility

      • appropriate accommodations

  • Most institutions (Universities, state agencies, large corporations) have a 504 Compliance Officer

  • Office of Civil Rights (OCR) handles complaints


Sec 504 and PE/Athletics

“Separation or differentiation with respect to physical education and athletic activities is permissible only if qualified students are also allowed opportunities to compete for regular teams or participate in regular activities. Most handicapped students are able to participate in one or more regular physical education and athletic activities. For example, a student in a wheelchair can participate in a weight training class (Stein, 1978, p. 149).


Sec. 504 (cont.)

“Cannot bar a person with artificial limbs or one eye or kidney from participating in sports competition. Likewise, athletic events in public places must be accessible to all spectators, including those who use wheelchairs.”


Litigation and Sec. 504

  • Age rule in high school sports?

    • Cases in Michigan and Missouri upheld rule

    • Case in Texas said had to be case by case basis

    • Case in Colorado recently

  • One kidney or one eye rule?

    • Cases found such rules violated Sec. 504


PL 101-336:Americans with Disabilities Act

  • Who is Protected?

    • qualified individual with a disability

  • Scope of ADA's Coverage

    • Employment

      • cannot discriminate against because of the disability

      • reasonable accommodations

      • employer cannot make presumptions as to what a person with a disability can or cannot do


Scope of ADA (cont.)

  • Public Transportation and Public Services

    • local, state, and federal agencies

  • Public Accommodations and Services

    • cannot discriminate in the full, equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations (includes private accommodations and services).

    • requires reasonable modifications to establishments

  • Telecommunications


Reasonable Accommodations

  • Reasonable accommodations

    • made for otherwise qualified individual

    • made on a case by case basis

    • does not impose undue hardship

  • Undue hardship

    • action that would be significantly difficult or expensive

    • fundamentally alter program

    • made on a case by case basis

  • Remedies for violations

    • violations related to employment rests with EEOC

    • other violations rests with Department of Justice/OCR


ADA and Youth Sports

  • Must provide opportunity to participate in programs with no skill criteria

  • Must provide opportunity to try-out in programs with skill criteria

  • Cannot utilize eligibility criteria that screens out individuals with disabilities


ADA and Youth Sports (cont.)

  • Must provide opportunity to participate in regular sports programs, even if special programs are available.

  • Auxiliary aids and services must be available unless:

    • causes undue hardship

      • significantly difficult to do

      • fundamentally alter the program


Litigation and ADA

  • Little league baseball coach in a wheelchair not allowed to coach from sideline

    • court found such a rule violated ADA


PL 94-142: Education for all HC Children Act (EHA)

  • Purpose

    • guarantee "free appropriate public education" to all children with handicaps

    • assure rights of children with handicaps and their parent


Definitions in EHA

  • definition of handicap:

    “...those children evaluated...as being mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, other health impaired, deaf-blind, multi-handicapped, or as having specific learning disability...”

    “...who because of those impairments needs special education and related services”


Definitions (cont.)

  • Definition of free appropriate education:

    “...special education and related services which:

    • are provided at the public expense under public supervision without charge

    • meet the standards of the state educational agency

    • include preschool, elementary, or secondary education in the state involved,

    • are provided in conformity with an individualized program


Litigation Regarding “Appropriate”

  • 1982 - Board of Education v. Rowley

    • Only special education case to reach federal supreme court

    • Child with hearing impairment did not need an interpreter because she was benefiting from her education

      • provide appropriate education - not best education

      • some states have higher standards (maximum)


Definitions (cont.)

  • definition of special education:

    1. Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.

    2. The term includes speech pathology, or any other related service, if the service consists of specially designed instruction ... and is considered special education rather than a related service under state standards.

    3. A child is not handicapped unless s/he needs special education. If a child does not need special education, cannot get related services.


Definitions (cont.)

  • Definition of Physical Education:

    (i) The term means the development of:

    (A) physical and motor fitness

    (B) fundamental motor skills and patterns

    (C) skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports

    (ii) The term includes special physical education, adapted physical education, movement education, and motor development


Definitions of Physical Education (Cont.)

(a) General - P.E. services, specially designed if necessary, must be available to every HC child.

(b) Regular P.E. - Every HC child must be afforded the opportunity to participate in regular physical education unless:

(1) child is enrolled full-time in a separate facility, or

(2) child needs specially designed physical education as prescribed in the child's IEP.


Definitions of Physical Education (Cont.)

(c) Special Physical Education - if specially designed physical education is prescribed in a child’s IEP, the public agency responsible for the education of that child shall provide the services directly, or make arrangements for it to be provided through other public or private programs.

(d) Education in Separate Facilities - the public agency responsible for the education of a handicapped child who is enrolled in a separate facility shall insure that the child receives appropriate physical education services in compliance with para. (a) and (c) of this section.


Definitions (cont.)

  • Definition of Related Services:

    "....transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education, and includes:

    speech pathology/audiology, recreation, psychological services social work, physical therapy, health services,

    occupational therapy artistic/cultural programming

    * if they are required to assist child benefit from special education.


Definitions (cont.)

  • Definition of Recreation:

    (i) assessment of leisure functioning

    (ii) therapeutic recreation services

    (iii) recreation programs in schools and community agencies

    (iv) leisure education


Definitions (cont.)

  • Definition of Non-academic Services

    • (a) afford equal opportunity for participation

    • (b) includes athletics and recreation


Definition of (LRE)

"... to the maximum extent appropriate, children with disabilities...are educated with children without disabilities, and that special classes, separate schooling, or other removal of children with disabilities from regular educational environments occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."


Continuum of LRE options

"...a continuum of alternative placements is available to meet the needs of children with disabilities...including instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions."

"...placing children in the LRE does not mean mainstreaming or placing all children into regular classes...placed in most normal environment in which they can potentially succeed...The LRE will be different for each child."


Physical Education Placement Options

  • Regular physical education - no support

  • Regular physical education - consult from APE

  • APE conducted within regular physical education

  • Part-time regular physical education; part-time elsewhere (flexible schedule)

  • Part-time regular physical education; part-time elsewhere (fixed schedule)

  • Full-time separate program in regular school

  • Full-time separate program in special school


Court Cases Related to LRE

  • Roncker (OH, 1983)

  • Daniel (TX, 1989)

  • Greer (GA, 1991)

  • Oberti (NJ, 1993)

  • Holland (CA, 1994)

  • Klinton (TX, 1993)


Roncker v. Walters (Ohio) 1983

  • Case Law

  • Principal of Portability

    • What makes special placement so special?

    • Can this “specialness” be brought to regular class?

    • Benefits to child?

    • Disruptions?


Daniel R.R. v. State Board of Education (Texas) 1989 “Daniel R.R. Test”

  • Can education in regular classroom, with supports, be achieved satisfactorily?

  • If it cannot, has the school “mainstreamed” the child to the maximum extent appropriate?


Daniel R.R. (Cont.)

  • Can Education in Regular Class, with Support, be Achieved?

    • Did school system take steps to include student?

    • Will student receive any educational benefit?

    • Were there any negative effects on other children?


Other Important Court Cases

  • Greer v. Rome (GA) City School District (1991)

    • Predetermination?

    • Non-academic benefit?

    • Financial burden?

  • Oberti v. Borough of Clementon (NJ) School District (1993)

    • Burden of proof?

    • Supplementary aids?

    • Modifying curriculum?


Other Important Court Cases (cont.)

  • Sacramento (CA) City Unified School District v. R. Holland (1994).

    • Educational benefit (same?)

    • Non-academic benefit

    • Effects on teacher and other children

    • Cost of supplementary aids

  • Klinton v. Corpus Christi (TX) ISD (1993)

    • Behavior problems


PL 99-457 (Amendments to EHA):

  • Title I (or Part H in IDEA) - Infants and Toddlers

    • Focus on young children (infants and toddlers birth - 3)

    • Children who are eligible may receive early intervention services which should have the following characteristics:

      • services are provided under public supervision

      • they are provided at no cost (occasional exceptions)


PL 99-457 (cont.)

  • Services include (but not limited to):

    • family training and counseling

    • special instruction

    • speech pathology, occupational therapy, physical therapy

    • case management

    • medical evaluation, and diagnosis and screening

  • services are provided by qualified personnel

  • services must conform to individualized family service plan (IFSP)


Individual Family Service Plan

  • Replaced IEP

  • Developed by the family and staff

  • Based on multidisciplinary evaluation of child and family

  • Includes services needed to enhance child's development and family's capacity to meet child's needs


PL 101-476: IDEA

  • 1990 Reauthorization of EHA

  • Key changes:

    • Changed term from handicap to disability

    • New eligibility category for "autistic condition"

    • New category for traumatic brain injury

    • Transition services: "coordinated set of activities which promotes movement from school to post-school activities”


IDEA (cont.)

  • Rehabilitation counseling is now a service on IEP

  • Greater availability of assistive technology

  • Recreation therapy reemphasized

  • Social work services reemphasized

  • LRE - increase insistence on seeing special education services in the LRE.


IDEA Amendments of 1997PL 105-17

  • Most important changes:

    • New focus on IEPs as a tool for enhancing the child’s involvement/progress in the general curriculum.

    • Involvement of general education teachers

    • Discipline

    • Change in definition concerning ADD/ADHD


IDEA ‘97 and the IEP

  • IEPs Must Now Include Statements of:

    • PLOP including how the child’s disability affects involvement/progress in the general curriculum

    • annual goals that will enable child to be involved in and progress in the general curriculum

    • SPED and related services and supplementary aids

    • Modifications or supports to help child advance in annual goals, be involved/progress in general curriculum, and participate in extra curricular activities.


IDEA ‘97 (continued)

  • Regular Education Teacher Involvement

    • If the child participates (or will participate) in a general education environment, the IEP team must include at least one of the student’s general education teachers.

    • The general education teacher must participate in the development, review, and revision of the child’s IEP

    • The general education teacher must also help determine appropriate positive behavioral interventions and strategies for the child, as well as any supplementary aids, program modifications, and supports.

    • Don’t have to (a) attend all meetings, (b) stay for entire meeting, or (c) discuss matters they are not involved in.


IDEA ‘97 (continued)

  • Discipline

    • services must continue during periods of disciplinary removal (only after first 10 days)

    • conducting behavioral assessments and developing behavioral intervention plans

    • manifestation determination (only required if removal constitutes a change of placement)

    • change of placement meeting required (if child is removed for more than 10 days)

    • cannot continually remove a child for periods of 10 days (this shows a pattern of misconduct)


IDEA ‘97 (continued)

  • ADD and ADHD

    • ADD and ADHD have been listed as conditions that could render a child eligible under the “other health impaired” (OHI) category

    • The term “limited strength, vitality, or alertness” in the definition of OHI, when applied to children with ADD/ADHD, includes a heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment.


Litigation and Special Education

  • 1972 - Larry B. v. Riles (CA)

    • IQ cannot be used as sole basis for placing children in special education

  • 1979 - Armstrong v. Kline (PA)

    • child with a severe disability who regresses over long periods of layoff are entitled to extended school year through summer


Litigation and SPED (cont).

  • 1984 - Irving Indep. School District v. Tatro (TX)

    • have to provide CIC - it is a supportive service since without it child could not attend school and subsequently not benefit from spec. education

  • 1986 - Doe v. Maher (CA)

    • child with a disability cannot be excluded from school for misbehavior that is related to disability

  • 1987 - Bevin v. Wright (PA)

    • school district is not required to pay for nursing and related health services - care was so intense it needed to be provided by nurse or doctor and was life-threatening


Litigation and SPED (cont).

  • 1999 - Cedar Rapids Community School District v. Garret F.

    • Supreme Court ruled that public schools must provide a wide array of medical care for children with disabilities attending classes.

    • Must provide assistance necessary to keep a student in school, short of a physician’s care

    • Related services and care must be:

      • essential to the child’s ability to attend class

      • could be provided by a school nurse or other qualified individual,but not a physician


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