Current Trends and Legal Issues in Special Education

David Bateman, Mitchell L. Yell

• Publisher: Corwin
• Year: 2019
• ISBN:
  9781544302010
• Edition: 1
• Topic: Éducation
• Subtopic: Éducation inclusive

Building and supporting effective special education programs School leaders and special educators are expected to be experts on all levels and types of special education law and services, types of disability, and aspects of academic and functional programming. With the increasing demands of the job and the ever-changing legal and educational climate, few feel adequately prepared to meet the demands. Trends and Legal Issues in Special Education helps you build and support timely, legally sound, and effective special education services and programs. Readers will find:

• the most up-to-date information on how to effectively implement special education programs, processes, and procedures
• examination of a wide variety of issues, from developing and implementing individual education programs (IEPs) that confer a free appropriate public education, Section 504, least restrictive environment (LRE), and successfully collaborating with parents, to issues regarding accountability, staffing, bullying, early childhood special education, multi-tiered systems of support (MTSS), evidence-based practices, transition, discipline, and the school-to-prison pipeline
• extensive references and resources

Chapter 1 Hot Topics Special Education Law, Litigation, and Policy Guidance

David F. Bateman and Mitchell L. Yell

This Chapter Will Cover:

1. A discussion related to avoiding discriminating against students with disabilities.
2. Policy guidance on attention deficit hyperactivity disorder and addressing behavior problems in individualized education programs.
3. Summaries of current remedies in special education, methodological disputes, placing students with disabilities in the least restrictive environment, deliberate indifference, service animals, website accessibility, charter schools, and independent educational evaluation.

Key Terms

• compensatory education
• deliberate indifference
• Education for All Handicapped Children Act (EAHCA)
• free appropriate public education (FAPE)
• independent educational evaluation (IEE)
• Individuals with Disabilities Education Act (IDEA)
• least restrictive environment (LRE)

Federal laws have played an important role in the formation of special education since the passage of the Education for All Handicapped Children Act (EAHCA) in 1975. The EAHCA, which was renamed the Individuals with Disabilities Education Act (IDEA) in 1990, has remained a driving force in special education. There are two reasons for this. Reason one is that every 5 or 6 years certain parts of the IDEA are reauthorized, which means that Congress revisits the law to reauthorize various activities and programs that were established in the IDEA. For example, Part D of the IDEA authorizes the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education to spend federal funds on certain activities. When Congress reauthorizes Part D, it allows OSERS to continue to allocate federal funds to these activities. Often when the IDEA is being reauthorized, Congress also amends the law. It is important to keep abreast of any amendments to the IDEA. Reason two is that often disputes occur between a student's parents and school personnel when issues regarding a student's special education are not settled to the satisfaction of either party. In such situations the IDEA includes the dispute resolution procedures of mediation, the resolution session, and the impartial due process hearing, which either the parents or the school district personnel may use. The other major dispute resolution mechanism that is available to parents but not school district personnel is a state's complaint resolution system. Either of the two dispute resolution systems may lead to litigation in the courts to settle these disputes. The majority of special education litigation occurs in the federal courts at the level of the U.S. District Courts. Some litigation is even taken to the higher level of federal district courts, the U.S. Circuit Courts of Appeals. A few special education cases have even reached the highest court in the United States, the Supreme Court. The results of this litigation can have important implications for special education.

Our purpose in this chapter is to briefly examine some of this litigation and how it affects special education. Prior to examining this litigation, we look at three additional issues of importance to special education: avoiding discriminating against students with disabilities, policy guidance from the U.S. Department of Education, and remedies that courts may impose on school districts when parents prevail in litigation.

Avoiding Discriminating Against Students With Disabilities

Congressional efforts to address the educational needs of students with disabilities originally consisted of two different approaches. The first approach was to protect students with disabilities from discrimination as Congress had done in 1964, when a law was passed—Title VI of the Civil Rights Act—to protect persons who were discriminated against because of race, color, creed, or national origin, and in 1972, when Congress protected persons who were discriminated against because of sex in Title IX of the Education Amendments. To this end, in 1973 Congress passed Section 504 of the Rehabilitation Act (hereinafter Section 504), which protected persons with disabilities from discrimination based on their disability. The second approach was to pass a funding bill that combined an educational bill of rights for students with disabilities with the promise of federal financial incentives for states. This law was the EAHCA of 1975. In this section of the chapter, we will address the first approach taken by Congress: Section 504.

The key to understanding Section 504 is to recognize that it is a civil rights law, which prohibits discrimination against persons with disabilities in programs that receive federal financial assistance. The law, therefore, applies to public elementary and secondary schools. Section 504 requires that

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. (Section 504, 29 U.S.C. § 794[a])

Discrimination is the unequal treatment of persons with disabilities solely because of their disability and typically involves exclusion or inferior treatment. According to the U.S. Supreme Court, discrimination that violates Section 504 often is not deliberate but is the result of thoughtlessness, neglect, and indifference. It is important, therefore, that school district administrators, teachers, and support staff understand their responsibilities under Section 504.

Additionally, Section 504 requires administrators, teachers, school psychologists, and other school personnel to identify students with disabilities and afford these students educational opportunities equivalent to those received by students without disabilities. Neither may school districts provide students with disabilities a program, aid, benefit, or service that is not as effective as those provided to students without disabilities. Thus, students with disabilities should be allowed to participate in the same academic and nonacademic activities as their nondisabled peers. To use a sports metaphor, Section 504 requires that students with disabilities be educated on a level playing field.

Policy Guidance on Attention Deficit Hyperactivity Disorder and Addressing Behavior Problems in Individualized Education Programs

The U.S. Department of Education includes a number of offices, such as OSERS and the Office for Civil Rights (OCR). Additionally, the Office of Special Education Programs (OSEP) is located within OSERS. OSERS, OCR, and OSEP are important to state and local special education officials, administrators, and teachers because these offices provide leadership, enforcement, and fiscal resources to assist states and local school districts to educate students with disabilities. One way that OSERS, OCR, and OSEP accomplish this is through developing, communicating, and disseminating federal policy interpretations on special education through policy letters, guidance documents, and memos. Although these decisions do not have the force of law, they may be cited in hearings or court cases because they do have some legal authority. Guidance from OSERS, OCR, and OSEP, which are sometimes in the form of a “Dear Colleague” letter (DCL) and “Questions and Answers,” are open to the public and are very important to special education administrators and teachers because information from OSERS and OSEP provides official guidance and clarification on the implementation of the IDEA and, in the case of OCR, the implementation of Section 504 of the Rehabilitation Act of 1973.

Two particularly important policy guidance letters were issued by OCR and OSEP in 2016. Both were issued as letters addressed to Dear Colleague and discussed educators’ responsibility toward students with attention deficit hyperactivity disorder (ADHD) and to include positive behavioral interventions and supports in the individualized education programs (IEPs) of students in special education who exhibit problem behavior.

On July 26, 2016, OCR issued the letter on students with ADHD. The purpose of the letter was to clarify and provide guidance to school district personnel on their responsibilities when educating students with ADHD. The authors of the OCR letter noted that (a) federal law prohibits discrimination on the basis of disability, (b) students with ADHD are entitled to protections under the law, and (c) schools need to provide equal opportunity to students with disabilities. Moreover, the letter writers asserted that students with ADHD could be denied a free appropriate public education (FAPE) under Section 504 when school district personnel make two types of errors in identifying students with ADHD and providing programming for these students.

The first error may occur when evaluating a student with ADHD. Denial of FAPE problems may occur in the evaluation process when school district personnel (a) fail to refer or identify students with ADHD, (b) fail to evaluate students in a timely manner after it is determined that a student needs an evaluation, and (c) conduct an inadequate evaluation.

The second error may occur when a student with ADHD is evaluated as qualifying under Section 504 but school personnel fail to provide appropriate educational programming for the student. This can occur when school district personnel (a) choose inappropriate services for a student, (b) educate a student in an inappropriate setting, (c) fail to inform relevant staff regarding their responsibilities to a student, and (d) select and provide services to a student based on inappropriate considerations such as administrative and financial factors.

When planning for the education of students with ADHD under Section 504, therefore, it is important that school personnel conduct individualized evaluations of students who, because of their disability, need or are believed to need special education or related services. Moreover, school personnel must ensure that qualified students with disabilities receive appropriate services that are based on their individualized and specific needs and not consider issues such as cost and administrative convenience. School personnel must also avoid making decisions based on stereotypes or a generalized misunderstanding of a disability.

The August 1, 2016, DCL from OSEP addressed the importance of school district personnel using positive behavioral interventions and supports when developing an IEP for a student with disabilities who exhibits problem behavior served under the IDEA. In the DCL, officials at OSEP noted that the U.S. Department of Education strongly supports student safety in the schools and that in certain circumstances this may include using disciplinary procedures with students when necessary to protect other students. The writers of the DCL also observed that researchers have shown that school-wide, small-group, and individual behavioral supports that address the function of behavior and reinforce positive student behaviors are associated with increases in academic engagement, academic achievement, and fewer dropou...