PRESENTED BY JANE R. WETTACHDIRECTOR, CHILDREN’S LAW CLINIC

DUKE LAW SCHOOL

SPECIAL EDUCATION LAW

CHILDREN’S LAW CLINIC

• A clinical education program of Duke Law School focused on protecting the rights of children in school and promoting their overall health & wellbeing

CHILDREN’S LAW CLINIC• Supervised law

students represent low-income families in cases involving school discipline, special education, school enrollment & some government benefits

• Service area includes 11 counties around Duke University (including Durham, Orange, Chatham)

REFERRALS TO CLC

• Parents have disagreements with school officials over whether their child is eligible for special education services

• Parents feel their children are not receiving appropriate special education services from public school

REFERRALS TO CLC

• Children are removed from a public school setting due to discipline or “homebound placement”

• Children are facing long-term suspension from school

• Disabled children are found “not eligible” for Supplemental Security Income (SSI) benefits

HOW TO OBTAIN SERVICES

• Parent of child should call Children’s Law Clinic• 919-613-7169

• Parent will be screened for type of case, geographic location, and income

• After screening, eligible family will be asked to come to Duke Law School to be interviewed by a law student

• Depending on situation, clinic will either provide advice or legal representation

HISTORY OF SPECIAL EDUCATION

• Most impaired: •excluded & segregated

• Less impaired: •retained, •called lazy & dumb, •encouraged to drop out of school

HISTORY OF SPECIAL EDUCATION

• 1975 – Congress passed Education for All Handicapped Children Act• Federal government

offers money to states to assist with educating handicapped children

• 1990 – Individuals with Disabilities Education Act• (IDEA)

SPECIAL EDUCATION IN NORTH CAROLINA

• NC has accepted federal money

• NC administers special education through the NC Dept. of Public Instruction, Exceptional Children Division

• NC has developed policies, available at http://ec.ncpublicschools.gov/policies/nc-policies-governing-services-for-children-with-disabilities

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”

WHO IS A “CHILD WITH A DISABILITY”?

• Aged 3 – 21

• With a disability that affects learning

• Who needs “specially designed instruction”

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 benefit from instruction – such as transportation and specialized therapies)

that allow the child to make reasonable educational progress.

WHAT IS A “FAPE”?

• “Education” is not just academic learning, but includes –• Socialization• Adaptive skills• Language and

communication• Reduction of behavioral

problems

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 extent possible

WHAT IS AN IEP?

• IEP is “blueprint” for the child’s special education• Contains annual goals• Specifies how much/what kind

of special education student will get

• Specifies the setting in which the services will be delivered

• Specifies accommodations & modifications

• IEP must be written by a team of persons knowledgeable about the child and the child’s needs, including parents

• IEP must be revised at least once a year

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

• Child can be referred by the parent or a teacher or other school official

• The parents must agree for the evaluation to proceed

SPECIAL EDUCATION -- ELIGIBILITY

• Evaluation performed by a school psychologist

• State policies set out what’s required for each type of disability

• A “medical evaluation” may be required (especially if a health problem is interfering with school progress)

CATEGORIES

• Autistic• Seriously Emotionally

Disabled• Deaf-Blind• Hearing impaired• Multi-handicapped• Developmentally

Delayed• Intellectually Disabled• Orthopedically

Impaired

• Other health impaired (includes ADD/ADHD)

• Specific learning disabled (includes dyslexia)

• Speech/language impaired

• Traumatic brain injured

• Visually Impaired

UNIVERSAL CRITERIA

• Disability must have an adverse effect on educational performance

AND

• Disability must require specially designed instruction

ELIGIBILITY

• Children who are passing from grade to grade can be eligible for special education;

• Children who have passed End-of-Grade tests can be eligible;

• Children who do well academically, but need specialized instruction in communication, behavior, social interaction, etc., can be eligible;

• BUT for all children, there must be evidence that the child is unable to make reasonable progress without specialized instruction.

OTHER HEALTH IMPAIRED

• Student suffers from –• a chronic or acute health

problem• Resulting in limited

strength, vitality, or alertness, • including a heightened

alertness to the educational environment

• Such as ADHD, asthma, diabetes, epilepsy, leukemia, sickle cell anemia, Tourette’s Syndrome, etc.

SPECIFIC LEARNING DISABLED

• A brain processing disorder

• impairs ability to listen, think, speak, read, write, spell, or to do mathematical calculations

• Most common is dyslexia

• Not the result of limited cognitive skills or lack of effective instruction

SPECIFIC LEARNING DISABILITY

• May be determined by• Discrepancy formula (>15 point difference

between IQ and achievement)• “Alternative” to discrepancy (assessments failed

to accurately reflect substantial discrepancy that is present)

• Exhibition of characteristics of SLD after unsuccessful “response to interventions”

SERIOUS EMOTIONAL DISABILITY

• An inability to build satisfactory interpersonal relationships with peers and teachers; or

• Inappropriate types of behavior or feelings under normal circumstances; or

• A general pervasive mood of unhappiness or depression; or

• A tendency to develop physical symptoms or fears associated with personal or school problems.

SPECIAL EDUCATION -- ELIGIBILITY

• A team – including parents – reviews all data

• Determines if child meets criteria

• If child is eligible, an IEP is developed

• From referral to IEP ≤ 90 days

DEVELOPMENT OF IEP

• Team decides• Current performance• Needs• Appropriate goals• What special

education is needed• What related

services are needed• What’s the right

setting for student

EVALUATING AN IEP

• Is student making “reasonable progress”?• Making academic

gains• Improving

functional skills

• Look out for• Failing grades or

test scores• Behavior

problems• No achievement

of goals

FOLLOW UP TO IEP

• IEPs are reviewed at least once a year• Child is re-evaluated every three years• If parents and school district agree, child can be evaluated more often, but not more than once per year

SPECIAL EDUCATION DISPUTE RESOLUTION• Parents have the right to challenge decisions of the IEP team regarding --• Eligibility• Amount, type & duration

of services• Placement in LRE• Discipline

SPECIAL EDUCATION DISPUTE RESOLUTION

• Dispute Resolution Mechanisms include• Facilitated IEP’s • Mediation• State Complaint (to DPI)• Due Process Hearing• Formal administrative hearing

• Duke Law Clinic available to give advice, represent parents and children

“504 PLAN”

• A plan for students with disabilities that don’t qualify for an IEP

• Child doesn’t need “specialized instruction”• Child does need

accommodations in regular classroom and for testing, such as -- • Preferential seating• Testing in separate room• Accommodations for physical

disabilities

“504 PLAN”

• Based on federal anti-discrimination law

• Guarantees students full access to the educational facilities and programs

• Tend to be less formal and less structured than IEP’s

“504 PLAN”

• School district should have personnel in charge of development and implementation of plans

• Parents and students must be aggressive about implementation

• Enforcement is through the federal Office of Civil Rights or a civil law suit.

CONTACT INFORMATION

Phone -- 919-613-7169 888-600-7274 (toll-free)Location – Duke Law School Corner of Towerview & Science Dr.

Durham, NC Permanent Staff –

Director Jane WettachSupervising Attorney: Brenda Berlin

Administrative Asst.: Sandra Pettiford

www.childedlaw.orghttp://www.law.duke.edu/partnershipforchildren/