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Legal Aspects of Special Education and Social Foundations. The American Legal System. Chief Justice Earl Warren, Brown v. Board of Education (1954).

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chief justice earl warren brown v board of education 1954
Chief Justice Earl Warren, Brown v. Board of Education (1954)

“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available to all on equal terms.”

sean and bobby
Sean and Bobby
  • Points to consider
    • Perspectives of parents
    • Perspectives of administrators and teachers
    • Perspectives of special education staff
  • Personal response
  • Legal perspectives
the american legal system
The American Legal System
  • Laws based on constitutional principles
    • Written and enacted by legislatures
    • Interpreted by courts
  • Interaction of legislative and judicial systems that impacts special education law
the american legal system1
The American Legal System
  • Federal system
  • Union of states joined under central government
  • Protects rights and liberties
  • Shared authority and power with states
  • Education not included in the constitution, but is governed by the laws of the states
  • Federal government involvement in education falls under the “general welfare” clause
    • Earliest involvement was in grants of land given to states for public schools and colleges with no direct control
    • Categorical grants - supplementary assistance - includes Elementary and Secondary Education Act of 1965 and Education for All Handicapped Children Act of 1975
sources of law
Sources of Law
  • Constitutional Law
    • Supreme laws contained in federal and state constitutions
  • Statutory Law
    • Law created by legislatures empowered by constitutions
  • Regulatory Law
    • Regulations that implement the law by authority delegated by legislatures to regulatory agencies
  • Case Law
    • Published opinions of judges arising from court cases where they interpret statutes, regulations and constitutional provisions
us constitution
US Constitution
  • Basic source of law
  • Purpose:
    • Define rules
    • Sets parameters for action
    • Allocates power and responsibility among branches of government
      • Legislative - creates law
      • Executive - enforces law
      • Judicial - interprets law
us constitution1
US Constitution
  • Federal statutes based on provisions of the constitution
  • The provision that allows for money for “general welfare” is the basis of special education
  • Amendments (26) include Bill of Rights (1-10) and 14 (basis for special education)
    • “No state can deny equal protection of the law to any person within its jurisdiction”
    • “Cannot be denied life, liberty, or property without due process”
statutory law acts
Statutory Law/Acts
  • Introduction of bill in congress
  • Assigned a number
  • If passes both senate and house,a committee is formed
  • Final version is sent to president who signs or vetoes
  • Enacted law is public law (P.L.)
  • It is given a name and a number (# of congress - “94” and number of bill - “142)

http://www.school-house-rock.com/Bill.html

regulatory law rules guidelines
Regulatory Law - Rules/Guidelines
  • Congress delegates power to administrative agencies
  • Regulations have the force of law - a violation is the same as a violation of the law
  • Agencies regulate special education
    • Office of Special Education and Rehabilitation Services (OSER) and the Office of Special Education Programs (OSEP)
    • Office of Civil Rights (OCR) investigates violations
case law
Case Law
  • Interpretations of statutes, regulations, and constitutional provisions by judges
  • Legal principles followed in later cases
  • Long English tradition - common law consisting of decisions from earlier cases
    • Discipline of children with disabilities
    • Extended school year
special education law
Special Education Law
  • Case law in the 70’s led to the provision of special education under the 14th amendment
    • Mills v. Board of Education
    • Pennsylvania Association of Retarded Citizens v. Commonwealth of Pennsylvania
  • Led to public law of 1975 (94-142)
compulsory attendance
Compulsory Attendance
  • Birthright
  • Educated persons are important for democracy
  • States passed compulsory education laws in late 1800’s through 1918
  • Exclusion despite above laws based on differences
  • 1958 - Department of Public Welfare v. Haas continued exclusion
  • 1969 - North Carolina claimed it was a crime to force attendance of children with disabilities
advocacy
Advocacy
  • Parental advocacy
    • White House conference of 1910
    • Public school programming
  • Advocacy groups
  • National A.R.C
  • CEC
  • TASH
  • Specialized groups
other influences
Other Influences
  • Civil Rights Movement - Brown v. Board of Education
  • Equal Opportunity cases
  • Federal involvement
    • Education of the Handicapped Act of 1970
    • Section 504 of Rehabilitation Act of 1973
    • Education Amendments of 1974
    • The Education of All Handicapped Children Act of 1975
    • The Handicapped Children’s Protection Act of 1986
    • The Infants and Toddlers with Disabilities Act of 1986
    • The Individuals with Disabilities Act of 1990
rehabilitation act
Rehabilitation Act
  • Purpose
    • Prevent discrimination against individuals with disabilities
    • Federally funded programs/agencies
  • Subpart D
    • Preschool, elementary, and secondary schools
    • No funds associated with implementation
  • For those who are not eligible through IDEA
  • Non-categorical definition of disability
disability designation
Disability Designation
  • Definition
    • Has a disability
    • Record of disability
    • Thought of as having a disability
    • Substantial limitation of a major life activities
  • Subjective decision-making process
  • No norm-reference test data required
  • Eligibility Determination Forms
recent federal involvement
Recent Federal Involvement
  • IDEA Amendments of 1997
  • No Child Left Behind Act of 2002
  • President’s Commission on Excellence in Special Education
  • Individuals with Disabilities Education Improvement Act of 2004