Reading and Supplemental Materials Required Reading Material LaMorte, M. (2012). School Law: Cases and Concepts. 10th edition. Pearson Education: London, England.

Chapter 6

Brundin, J. (2020, October 21). Lawsuit Says Boulder Valley School District Is Failing to Educate Its Special Needs Students. Retrieved May 9, 2021 from

https://www.cpr.org/2020/10/21/lawsuit-says-boulder-valley-school-district-is-failing-to-educate-it s-special-needs-students/

Links to an external site.

Recommended (Optional) Learning Materials

Kamentez, A. (2020, July 23). Families Of Children With Special Needs Are Suing In Several States. Here's Why. Retrieved May 9, 2021 from

https://www.npr.org/2020/07/23/893450709/families-of-children-with-special-needs-are-s uing-in-several-states-heres-why

Links to an external site.

US Department of Education Official IDEA Website

Links to an external site.

Section 504 Summary & FAQs

https://www2.ed.gov/about/offices/list/ocr/504faq.html

LaMorte, M. W. (2011). School Law: Cases and Concepts (10th ed.). Pearson Education (US). https://bookshelf.vitalsource.com/books/9780133000603

As the United States Congress recognized in the Individuals with Disabilities Education Act (IDEA), disabilities are a natural part of the human experience and should in no way diminish the right of individuals to participate in or contribute to society. With appropriate educational services, children with disabilities, like all other children, can be prepared to lead productive, independent, adult lives to the maximum extent possible. But prior to the passage of laws protecting children with disabilities, many of these children were excluded from public schools or were not receiving appropriate educational services. The prevailing educational philosophy held that children with disabilities that prevented them from conforming to ordinary cognitive, physical, or hygiene standards did not belong in regular public schools. The burden of educating these children remained primarily with their families, who often lacked sufficient resources to provide appropriate educational services. Educational services that were available to these children were often provided in segregated facilities, preventing these children from interacting with their nondisabled peers. Congress found that before the enactment of the landmark Education for All Handicapped Children Act of 1975 (Public Law 94-142), a million children with disabilities were entirely excluded from public schools, and more than half of the children with disabilities in the United States were not receiving appropriate educational services.

Following the United States Supreme Court’s mandate to racially desegregate schools in Brown v. Board of Education, advocates for individuals with disabilities championed desegregated education for children with disabilities. Based on legal theories rooted in Brown, dozens of cases were filed nationwide alleging that children with disabilities were being excluded from public schools and denied equal protection and due process rights. Two of these cases, Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972), and Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972), resulted in landmark decisions recognizing educational rights for children with disabilities. In PARC, a federal district court held that intellectually disabled students ages six through twenty-one should be provided with access to a free public education, and that children ________________ *This chapter was written by John Dayton, J.D., Ed.D., a professor in the University of Georgia College of Education, and Co-Director of the Education Law Consortium.

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with disabilities should be placed in regular classrooms when possible or in special classes when necessary. In Mills, another federal district court extended this doctrine to all school-age children with disabilities, holding that they must be provided with a free and adequate public education.

Legislation protecting the rights of individuals with disabilities was also passed by the United States Congress. Some of the earliest federal legislation included the Elementary and Secondary Education Act of 1965, and Title VI, which was a 1966 amendment to that Act. In 1970, Title VI was repealed and replaced by the Education of the Handicapped Act. This Act created a Bureau of Education for the Handicapped and brought increased national attention to the concerns of students with disabilities. This early legislation did not provide for “mainstreaming” or a “free appropriate public education,” but it established the groundwork for future legislation concerning these issues. In 1973 Congress passed Section 504 of the Rehabilitation Act, prohibiting discrimination against handicapped persons in programs receiving federal funds. In 1975 Congress passed Public Law 94-142, the Education for All Handicapped Children Act, providing significant new substantive legal rights and procedural protections for handicapped children. This Act was renamed the Individuals with Disabilities Education Act (IDEA) in 1990, with the addition of some important substantive changes such as provisions for “transition services” and changes in terminology, including a change from “handicapped children” to “children with disabilities.” In that same year, Congress also passed the Americans with Disabilities Act (ADA). The ADA extended antidiscrimination protections similar to Section 504 protections in public institutions to many private-sector areas, including employment, public accommodations, transportation, and telecommunications. These three laws, Section 504, the IDEA, and the ADA, provide the primary legal protections available for individuals with disabilities.

Among these three laws, the IDEA has the most significant impact on public schools. Legislation, regulations, and judicial opinions concerning the IDEA form a complex system of legal rights and responsibilities, and schools are frequently involved in litigation concerning the IDEA. Accordingly, this chapter focuses greater attention on the IDEA, including significant provisions from the most current legislative amendments and administrative regulations. But because the laws concerning individuals with disabilities continue to develop rapidly, educators responsible for compliance with the IDEA, Section 504, and the ADA should closely monitor new legislation, regulations, and judicial decisions concerning these laws. Congress reauthorized the IDEA in 2004, new IDEA regulations were issued in 2006, and reauthorization was still pending when this chapter was written.

I. THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

The purpose of the IDEA is to ensure that all children with disabilities are provided with a “free appropriate public education” (FAPE) that emphasizes special education and related services designed to meet their unique needs and to prepare them for employment and independent living. The IDEA is also intended to ensure that the rights of children with disabilities are protected and to assist states in providing appropriate services.

A. Eligibility To be eligible for IDEA services, a child must be declared a “child with a disability” as defined in the IDEA, requiring a two-part test. First, the child’s disability must fit within one of the categories of eligibility. Under section 1401 of the IDEA these categories include:

[M]ental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . ., orthopedic

255 impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities. 20 U.S.C. § 1401 (2004).

Second, the child must need special education and related services because of the disability. The IDEA defines special education as special instruction designed to meet the unique needs of a child with a disability. Related services are services required to assist a child with a disability to benefit from special education services. The IDEA also allows states to classify children ages three through nine that are “experiencing developmental delays” and in need of special education and related services as “children with disabilities.”

Not all children with physical or mental impairments will satisfy the IDEA’s two-part eligibility test, and these children will not be eligible for IDEA services. Some children will not fit within an IDEA eligible category. For example, there is no specific category for children with Attention Deficit Disorder (ADD), diabetes, cancer, or many other chronic health problems. Further, these children would only be eligible as “other health impaired” if their illnesses sufficiently limit their strength, vitality, or alertness and adversely affect their educational performance, requiring special education and related services. Some children may fit in an IDEA eligible category, but not need special education and related services. For example, although “orthopedic impairment” is a proper category for IDEA eligibility, some orthopedically impaired children do not need special education and related services. These children may qualify under Section 504 and may require reasonable accommodations in facilities and transportation, but they are not eligible for IDEA services if they do not need special education and related services because of their disability.

B. Identification and Evaluation of Students The IDEA creates an affirmative duty for states to identify children with disabilities through the “child find” provisions, which mandate that “All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified.” 20 U.S.C. § 1412 (2004). Some of these children are identified through mass screening tests, including vision tests, hearing tests, and other basic tests administered to all schoolchildren. Also, parents, school personnel, or other persons that suspect a child needs IDEA services may refer the child for an evaluation to determine whether the child is eligible for these services. But before any individual evaluations for IDEA eligibility may be conducted, schools must obtain parental consent for the evaluation.

If parents refuse consent, school officials may use counseling or mediation to encourage parental cooperation. In more difficult cases, school officials may initiate due process proceedings to obtain permission for an evaluation from a hearing officer. Parental refusal does not absolve the school district of its duty to provide a FAPE for children with disabilities. In cases where parents refuse consent and the school suspects the child may be a child with a disability, a hearing officer’s determination concerning whether there is an adequate basis for suspecting a disability may help ensure that children with disabilities receive needed services and help to protect the school from future liability for failure to provide the student with a FAPE.

According to the IDEA, an evaluation for eligibility should include a variety of assessment tools and strategies, using technically sound instruments to assess the role of physical, cognitive, behavioral, and developmental factors in the child’s disability. To avoid inaccurate conclusions, no single procedure should determine whether a child has a disability. For example, children should not be improperly labeled as intellectually disabled based on a single test result or because of vision, hearing, or language problems in the testing process. Tests should be validated

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for the intended purpose, administered by qualified personnel, not racially or culturally discriminatory, and administered in the child’s native language if feasible. Based on all relevant evaluation data, including information from parents and classroom assessments, a determination is made concerning whether the child has an IDEA eligible disability and whether the child needs special education and related services.

C. Substantive Educational Rights Children eligible for IDEA services have a right to a “free appropriate public education” (FAPE). According to the IDEA, the right to a FAPE includes special education and related services that are free and without cost to parents or students and provided through an appropriate educational program that is under public supervision and direction and in conformity with the child’s individualized education program (IEP). Although the meanings of the terms “free,” “public,” and “education” are relatively clear, “appropriate” is a highly subjective term. Further, the IDEA does not define “appropriate.” Because the provision of a FAPE is essential to compliance with the IDEA, it is not surprising that the first United States Supreme Court case to address this law concerned defining the parameters of “appropriate” under the Act. It seemed to many observers that the Act obligated schools to provide, on demand and regardless of cost, optimal education services to meet any demonstrated educational need. Then, in 1982, the United States Supreme Court delivered a six-to-three decision in Rowley that addressed the limitations of the Act’s substantive guarantees.

BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT v. ROWLEY

Supreme Court of the United States, 1982 458 U.S. 176

JUSTICE REHNQUIST delivered the opinion of the court. This case represents a question of statutory interpretation. Petitioners contend that the Court of

Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree and reverse the judgment of the Court of Appeals.

The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. § 1401 et seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State’s compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress’ perception that a majority of handicapped children in the United States “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’” * * *

* * * In order to qualify for federal assistance under the Act, a State must demonstrate that it “has in

effect a policy that assures all handicapped children the right to a free appropriate public education.” * * * That policy must be reflected in a state plan submitted to and approved by the Secretary of Education * * * which describes in detail the goals, programs, and timetables under which the State intends to educate handicapped children within its borders. * * * States receiving money under the Act must provide education to the handicapped by priority, first “to handicapped children who are not receiving an education” and second “to handicapped children . . . with the most severe handicaps who are

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receiving an inadequate education,” * * * and “to the maximum extent appropriate” must educate handicapped children “with children who are not handicapped.” * * * The Act broadly defines “handicapped children” to include “mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children. . . . [and] children with specific learning disabilities.” * * *

* * * Thus, although the Act leaves to the States the primary responsibility for developing and

executing educational programs for handicapped children, it imposes significant requirements to be followed in the discharge of that responsibility. Compliance is assured by provisions permitting the withholding of federal funds upon determination that a participating state or local agency has failed to satisfy the requirements of the Act, * * * and by the provision for judicial review. At present, all States except New Mexico receive federal funds under the portions of the Act at issue today. * * *

This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N.Y. Amy has minimal residual hearing and is an excellent lipreader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a decision to place her in a regular kindergarten class in order to determine what supple-mental services would be necessary to her education. Several members of the school adminis-tration prepared for Amy’s arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal’s office to facilitate communication with her parents who are also deaf. At the end of the trial period it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year.

As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy’s kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district’s Committee on the Handicapped, which had received expert evidence from Amy’s parents on the importance of a sign-language interpreter, received testimony from Amy’s teacher and other persons familiar with her academic and social progress, and visited a class for the deaf.

When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators’ determination that an interpreter was not necessary because “Amy was achieving educationally, academically, and socially” without such assistance. * * *

* * * The District Court found that Amy “is a remarkably well-adjusted child” who interacts and

communicates well with her classmates and has “developed an extraordinary rapport” with her teachers * * * It also found that “she performs better than the average child in her class and is advancing easily from grade to grade,” * * * but “that she understands consider-

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ably less of what goes on in class than she could if she were not deaf” and thus “is not learning as much, or performing as well academically, as she would without her handicap.” * * * This disparity between Amy’s achievement and her potential led the court to decide that she was not receiving a “free appropriate public education,” which the court defined as “an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.” * * * According to the District Court, such a standard requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or “shortfall” be compared to the shortfall experienced by non-handicapped children. * * * District Court’s definition arose from its assumption that the responsibility for “giv[ing] content to the requirement of an ‘appropriate education’” had “been left entirely to the [federal] courts and the hearing officers.” * * *

* * * This is the first case in which this Court has been called upon to interpret any provision of the

Act. * * * * * *

According to the definitions contained in the Act, a “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the State’s regular education, and comport with the child’s IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a “free appropriate public education” as defined by the Act.

Other portions of the statute also shed light upon congressional intent. Congress found that of the roughly eight million handicapped children in the United States at the time of enactment, one million were “excluded entirely from the public school system” and more than half were receiving an inappropriate education. * * * In addition, as mentioned in Part I, the Act requires States to extend educational services first to those children who are receiving no education and second to those children who are receiving an “inadequate education.” * * * When these express statutory findings and priorities are read together with the Act’s extensive procedural requirements and its definition of “free appropriate public education,” the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child.

Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts—that States maximize the potential of handicapped children “commensurate with the opportunity provided to other children.” * * * That standard was expounded by the District Court without reference to the statutory definitions or even to the legislative history of the Act. Although we find the statutory definition of “free appropriate public education” to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meet some additional substantive standard. * * *

* * * The educational opportunities provided by our public school systems undoubtedly differ from

student to student, depending upon a myriad of factors that might affect a particular

259 student’s ability to assimilate information presented in the classroom. The requirement that States provide “equal” educational opportunities would thus seem to present an entirely unworkable standard requiring

impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of “free appropriate public education”; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go. Thus to speak in terms of “equal” services in one instance gives less than what is required by the Act and in another instance more. The theme of the Act is “free appropriate public education,” a phrase which is too complex to be captured by the word “equal” whether one is speaking of opportunities or services.

* * * The District Court and the Court of Appeals thus erred when they held that the Act requires New

York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal may be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education.

* * * The determination of when handicapped children are receiving sufficient educational benefits to

satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation. The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible. When that “mainstreaming” preference of the Act has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been “educated” at least to the grade level they have completed, and access to an “education” for handicapped children is precisely what Congress sought to provide in the Act. When the language of the Act and i

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