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Special Education Law. 2008 Presented by: Jane R. Wettach Clinical Professor of Law, Duke Law School Director, Duke Children’s Law Clinic. History of Discrimination. Approximately 12 percent of children have disabilities that affect their ability to learn

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Special Education Law

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special education law

Special Education Law


Presented by:

Jane R. Wettach

Clinical Professor of Law, Duke Law School

Director, Duke Children’s Law Clinic

history of discrimination
History of Discrimination
  • Approximately 12 percent of children have disabilities that affect their ability to learn
    • Disabilities range from mild to profound
  • Historically, the most impaired were excluded from education altogether;
  • some (such as blind, deaf, mentally retarded) were segregated in special schools;
  • less impaired were in public school but were often retained in grade level, considered lazy or stupid, dropped out of school because their needs weren’t met
challenges to discrimination the right to be educated
Challenges to Discrimination & the Right to be Educated
  • Early 1970’s – successful civil rights lawsuits brought on behalf of disabled children for inclusion in public schools
  • 1975 – first federal law promising states federal funds to assist in educating children with disabilities -- Education for all Handicapped Children Act (94-142)
  • 1990 -- revisions to EHCA, including new name: Individuals with Disabilities Education Act
  • 2004 – most recent revisions to IDEA
special education laws
Special Education Laws
  • The Individuals with Disabilities Education Act – 20 USC 1400 et seq and 34 CFR Part 300
  • Education of Children with Disabilities – NCGS 115C-106 et seq
  • North Carolina Policies, issued by the Dept. of Public Instruction (new policies about to be issued; formerly called “Procedures”)
  • http://www.ncpublicschools.org/docs/ec/policy/policies/2007policies.pdf
idea the basic promise
IDEA – The Basic Promise
  • All children with disabilities are entitled to
    • A “free, appropriate, public education”
    • In the “least restrictive environment”
    • Pursuant to an Individualized Education Program (IEP)
idea entitlements
IDEA Entitlements
  • The right to be evaluated, at public expense, to determine eligibility for special education
  • The right to an Individualized Education Program that provides the specialized instruction and related services needed to allow the child to make educational progress
idea entitlements1
IDEA Entitlements
  • The right to be educated, to the maximum extent possible, with typically developing peers
  • The right to access, to the maximum extent possible, to thegeneral curriculum
idea entitlements2
IDEA Entitlements
  • The right of parents to be involved in the decision-making process and the development of the IEP
  • The right to review of decisions made by the IEP team through due process appeal
who is a child with a disability
Who is a “child with a disability”?
  • Child (ages 3 – 21) must have an identified physical or mental dysfunction that interferes with educational performance
  • Child must need “specially designed instruction” to make educational progress (not just accommodations)
what is a fape
What is a “FAPE”?
  • A “free, appropriate public education” is
    • Special education (i.e., specially designed instruction to meet the unique needs of the child); and
    • related services (supportive services designed to enable the child to benefits from instruction – such as transportation and specialized therapies)

that allow the child to make reasonable educational progress.

what is a fape1
What is a “FAPE”?
  • “Educational progress” is not just academic learning, but includes –
    • Socialization
    • Adaptive/functional skills
    • Language and communication
    • Reduction of behavioral problems
what is the least restrictive environment
What is the “least restrictive environment”?
  • The LRE is the setting in which children with disabilities may be educated with typical children to the maximum extentpossible
least restrictive environment
Every child should be educated in the regular classroom, in the school he or she would attend if not disabled, with “supplementary aids and services.”

Special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if 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

Least Restrictive Environment
least restrictive environment1
Least Restrictive Environment
  • Disabled child need not be placed in a regular classroom if:
    • The child would not receive “educational benefit” from being educated in regular classroom; or
    • The marginal benefit of being educated in the regular classroom is outweighed by the benefits of a separate setting; or
    • The disabled child is a disruptive force in the regular classroom.
special education eligibility
Special Education -- Eligibility
  • Child must be “referred” to be evaluated for possible special education services
  • Referral: in writing, dated, addressed to principal, state reason for referral in terms of lack of educational performance
  • The school district has an obligation to identify children who may need special education, but parent should refer if there are concerns
  • The parents must agree for the evaluation to proceed.
special education eligibility1
Special Education -- Eligibility
  • Initial evaluation is usually conducted by a school psychologist (but it can be contracted out)
  • State policies set out required & recommended screenings & evaluations for each type of disability, as well as the criteria for eligibility in each category
special education eligibility2
Special Education -- Eligibility
  • Child must be “referred” to be evaluated for possible special education services
  • Referral: in writing, dated, addressed to principal, state reason for referral in terms of lack of educational performance
  • The school district has an obligation to identify children who may need special education, but parent should refer if there are concerns
  • The parents must agree for the evaluation to proceed.
special education eligibility3
Special Education -- Eligibility
  • School has 90 days from date of referral to beginning of services
  • If parent believes school evaluation is incomplete or wrong, parent can ask for an independent evaluation at school expense
  • School must either pay for the evaluation, or file a due process petition to allow a judge to decide if school is obligated to pay
special education eligibility4
Special Education -- Eligibility
  • Eligibility is decided by a team of qualified personnel plus the parent
  • Parent may invite persons who have special expertise
  • Members of the team consider all information and then determine if child fits into one of the 14 eligibility categories
categories of eligibility


Seriously emotionally disabled (formerly BED)


Hearing impaired


Intellectually disabled (formerly EMD, TMD)

Orthopedically impaired

Other health impaired (includes ADD/ADHD)

Specific learning disabled (includes dyslexia)

Speech/language disabled

Traumatic brain injured

Visually impaired

Categories of Eligibility
specific learning disabled
Specific Learning Disabled
  • A disorder of basic psychological processes involved in understanding or in using information
  • Manifests itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations
  • No medical test; may be determined by any of a number of alternative methods
specific learning disabled1
Specific learning disabled
  • Includes:
    • perceptual disabilities
    • brain injury
    • minimal brain dysfunction
    • dyslexia
    • developmental aphasia
  • Does not includea learning problem that is primarily the result of:
    • visual, hearing, or motor disabilities
    • mental retardation
    • emotional disturbance
    • environmental, cultural, or economic disadvantage
    • lack of appropriate instruction
    • limited English proficiency
specific learning disability
Specific learning disability
  • Below average ≠ disabled
  • “Discrepancy model”
    • 15-point discrepancy between
      • cognitive ability (measured on an IQ test)
      • academic performance (measured on a standardized achievement test)
response to interventions
Response to Interventions
  • A student with academic delays is given one or more research-validatedinterventions.
  • The student's academic

progress is monitored


  • If the student fails to make good progress, this failure to 'respond to intervention' can be viewed as evidence of an underlying learning disability.
the iep
  • Each eligible child must have an Individualized Education Plan (IEP), revised at least annually
  • IEP is “blueprint” for the child’s free, appropriate, public education in the least restrictive environment
  • IEP must be written by a team of persons knowledgeable about the child and the child’s needs, including parents
the iep1
  • Must be designed to meet child’s unique needs, and include:
    • Current performance
    • Measurable, objective annual goals
        • Short term benchmarks/objectives now only required for children who take alternate assessments
    • A statement of the special education and related services, and supplementary aids and services to be provided
    • Amount of special education to be provided
    • Amount of related services to be provided
    • Classroom and testing modifications
    • Placement on continuum of settings
follow up to iep
Follow up to IEP

IEP is revised annually, or as often as needed, to assure that child is making progress on goals

Child is re-evaluated at least every three years, or more often if needed (but not more than once a year unless parent and school district agree)

entitlement to fape
Entitlement to FAPE
  • A “FAPE” allows a child to make reasonable academic progress. For children with average cognitive skills, this generally means being taught the standard course of study, with appropriate supports & modifications, and passing from grade to grade.
  • A “FAPE” does not require services to “maximize the potential” of the student
  • Progress should be measurable

& measured.

    • A parent has the right to ask for objective testing on a regular basis that reflects progress.
    • A parent has the right to have periodicreports –as often as regular report cards go out -- of progress on IEP goals
reasonable progress
Reasonable Progress
  • Some ways to measure progress
    • Grades, if student is in standard curriculum
    • Achievement of annual goals (so long as those goals change from year to year and represent progressively more sophisticated skills)
    • Improvement on standardized measures that compare student to nationally-normed standards
  • As a general rule, a parent does not have a legal right to select a preferred methodology. School personnel may choose the methodology to be used.
  • Parents have the right to demand a methodology that works. A legal claim arises if the child does not make progress with the methodology chosen by the school personnel.
iep timelines
After parental consent for evaluation, determination of eligibility must be accomplished within 60 days

After determination is made that a child requires special education, an IEP must be developed within 30 days

IEP shall be implemented “as soon as possible” following the IEP meeting

From referral to placement in appropriate program may not exceed 90 days

IEP Timelines
private services at public expense
Private Services at Public Expense
  • If the school district cannot provide services that allow a child to make reasonable educational progress, it must pay for those services to be provided privately
  • If the school district does not provide the services, a parent can unilaterally place the child in a private school and request reimbursement
private services at public expense1
Private Services at Public Expense
  • If the parent unilaterally places his child in private school, he must:
    • Give the school district at least 10 days notice that he finds the IEP unacceptable, plans to place his child in private school, and demands tuition reimbursement
    • If the school district declines, parent must file a due process petition and prove that the child’s proposed IEP did not offer a FAPE and that the private school chosen was appropriate for the child
discipline special ed students
Discipline & Special Ed Students
  • Disabled children are treated as “regular ed” students if they are suspended for fewer than 10 days (cumulative in a year) (i.e., no protections, no recourse)
  • Disabled children have additional rights for suspensions of more than 10 days (cumulative in a year, if suspensions form a pattern)
idea discipline protections
IDEA Discipline Protections
  • Functional Behavior Assessment
  • Behavior Intervention Plan
  • Manifestation Determination Review
  • Continuation of FAPE
eligibility under section 504
Eligibility under “Section 504”
  • Section 504 of the Rehabilitation Act of 1973, 29 USC 794 and 34 CFR 104
    • prohibits discrimination against disabled persons in educational institutions that receive federal funds (all public schools)
  • Like IDEA, requires that students with disabilities receive a free, appropriate public education
eligibility under section 5041
Eligibility under Section 504
  • To be eligible for coverage by Section 504, an individual must
    • Have a physical or mental impairment that substantially limits a major life activity
    • Have a record of such an impairment
    • Be regarded as having such an impairment
504 plans
“504 Plans”
  • Students with disabilities that require some type of accommodation, but not necessarily “specialized instruction” are offered “504 Plans”
  • “504 Plans” should outline what accommodations the student will receive (examples: special transportation, elevator pass, modified physical education, testing modifications, classroom modifications)
504 plans1
“504 Plans”
  • Typically, a meeting is held with designated school personnel and parents to develop a plan
  • 504 Plans have much less structure than IEPs
  • Enforcement is through a local grievance procedure, followed by a complaint to the federal Office of Civil Rights or a civil law suit.