update on the law of special education annual conference of the south dakota association of school...

Update on the Law of Special Education

Annual Conference of the

South Dakota Association of

School Business Officials

Pierre, South Dakota

September 28, 2011

Charles J. Russo, J.D., Ed.D.Panzer Chair in Education Adjuntct Professor of LawUniversity of Dayton(937) 229-3722 (ph)charles_j_russo@hotmail.com

Outline

I. Introduction

II. Section 504 of the Rehabilitation Act of 1973 (504)

III. Individuals with Disabilities Education Act (IDEA)

IV. Section 504 v. IDEA

V. Conclusion

Introduction

How Attitudes Have Changed

See, e.g., State v. Board of Educ. of City of Antigo, 172 N.W. 153

(Wis. 1919) (affirming the exclusion of a student whose paralysis

caused him to speak hesitatingly and drool uncontrollably even

though he had the academic ability to benefit from school because

“his physical condition and ailment produce[d] a depressing and

nauseating effect upon the teachers and school children.”).

I. Introduction

Two KEY Early Cases

Pennsylvania Association for Retarded Children v.

Pennsylvania (PARC),334 F. Supp. 1257 (E.D. Pa. 1971),

343 F. Supp. 279 (E.D. Pa. 1972).

Mills v. Board of Education of the District of Columbia,

348 F. Supp. 866 (D.D.C. 1972).

I. Introduction

Two Primary Statutes

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794(a)

Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400 et seq.

II. Section 504

“No otherwise qualified individual with a

disability in the United States ... shall, solely by

reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be

subjected to discrimination under any program or

activity receiving Federal financial assistance....”

29 U.S.C.A. § 794(a).

II. Section 504

Eligibility

a) have, had believe, to have had impairment that

significantly impacts a major life activity (such as

school or work)

b) otherwise qualified

c) in program that receives federal financial assistance

d) reasonable accommodations

II. Section 504

Defenses

a) cost

b) health and safety

c) significant alteration in nature of program

II. Section 504

Section 504 Service Plans ≠ IEPsDemographic Data: student’s name, date of birth, school

identification number, grade, school, teacher, parents’ names, address, telephone numbers,

Team Members

Impairment: a detailed description of the student’s impairment and its severity, along with an explanation of how it impedes the child’s educational progress

Accommodations and Services: a detailed description of the accommodations and services to be offered under plans, including the frequency and location of services, where they will be provided, and by whom they will be provided

Cf. IEP

IEPs must describe

students’ current levels of educational performance,

annual goals and short-term objectives,

the specific services that they will receive,

the extent to which they can take part in general education,

the date services begin and how long they will be offered,

Cf. IEP

criteria to evaluate whether they are achieving their goals.

how students' disabilities affect their ability to be involved in and

progress in inclusive settings

necessary modifications to allow them to take part in the general

curriculum

and detail related services that students need to benefit from their

IEPs.

III. IDEA20 U.S.C. § 1400(3)Child with a disability(A) In general

The term "child with a disability" means a child-(i) with mental retardation, hearing impairments

(including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

III. IDEA

1) Eligibility

a) 3-21

b) specifically identified disability

c) need special education (aka IEP)

d) need related services

III. IDEA

2) Key Elements

a) FAPE cf. Rowley v. Board of Education

b) LRE cf. Timothy W. v. Rochester (zero reject)

c) parental input

d) due process cf. Honig v. Doe (discipline)

III. IDEA

Continuum of Placements

1. Full inclusion . . . a GOAL NOT a RIGHT

2. Full inclusion with an aide

3. Full inclusion with an aide and pull out

4. Self-contained placement

1-4 SHOULD be in the child’s “neighborhood” school

III. IDEA

Continuum, Cont’d

5. Special day school

6. Hospital and homebound

7. Residential Placement

IV. 504 v. IDEAThere are at least eight major differences

between Section 504 and the IDEA.

1. while Section 504 applies to school systems that

receive federal financial assistance, whether in the

form of money, books, or free lunches, they do not

receive additional funds under its provisions as do

the boards that serve children who qualify for IDEA

services.

IV. 504 v. IDEA

2. Section 504 protects individuals under the broader

notion of impairment rather than the IDEA's reliance

on the statutorily defined, and delineated, disabilities.

IV. 504 v. IDEA

3. Section 504 has no age limitations while the IDEA

covers students from the ages of 3 to 21 or when they

complete high school.

IV. 504 v. IDEA

4. the IDEA includes much more extensive due process

protections than Section 504, including the

requirement that school officials provide written

Individualized Education Programs for students who

are covered by the IDEA.

IV. 504 v. IDEA

5. unlike the IDEA, Section 504 does not require

parental consent although educators would be wise to

seek it when providing accommodations for students.

IV. 504 v. IDEA

6. while the IDEA places an affirmative obligation on

states, through local school boards to identify, assess,

and serve students with disabilities, including those

whose parents placed them in private schools,

individuals seeking the protections of Section 504

must request accommodations from school officials

and may be required to submit proof that they are

qualified if there is a difference of opinion.

IV. 504 v. IDEA

7. while Section 504 covers students, employees, and

others, including parents, in schools, the IDEA is

limited to students.

IV. 504 v. IDEA

8. Unlike the IDEA’s zero-reject approach, school

officials can rely on Section 504's three defenses to

avoid being charged with noncompliance.

V. Conclusion

Knowledge is power . . .

Francis Bacon