Chapter 8
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Not knowing or ignoring special education
law is one of the easiest ways for campus and
district leaders to get into legal hot water.
To look at it another way, however, is that by
knowing special education law you are better
able to serve those students in the most
effective manner that has been determined
for them.
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IDEA 1997 was designed to encourage
mediation, state complaint procedures, and
due process hearings to avoid litigation.
An analysis of published hearings and court
decisions from 1989 to 200 found that
parents won, or partially won approximately
50% of these cases.
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The development of a cooperative school culture characterized by collaborative efforts to
solve problems is an important leadership skill.
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Discourse ethics is a communication model designed to produce rational and coherent
argumentation that can lead to a clarification of common interest and an acceptable and
valid agreement among the parties involved.
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What is the difference between mediation and arbitration?
Mediation is the process by which participants seek to understand the perspectives of
others. It is important because it is by nature designed to facilitate the introduction of
empathy into the process of reaching a decision.
Understanding the perspectives of others requires an unconditional acceptance of the
views, wants, and needs of others. This does not necessarily mean agreement, but rather
forms the basis for an acceptable outcome.
Arbitration is the process of selecting from alternatives to reach an acceptable decision.
It can be viewed in the same way as negotiating a compromise where participants strive
for an agreement on an acceptable outcome.
Both mediation and arbitration are part of a process that provides for communication
toward reaching an acceptable outcome.
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Parental involvement in special education is mandated by law. It is
important that school leaders must develop the type of school culture that
encourages understanding, cooperativeness, and consensual agreements.
Special education disputes usually occur because of a failure to positively
engage parents in the education of their child. Parents have an emotional
investment in their children. Failure to at least seek to understand and
acknowledge the needs and wants of parents is the primary reason for
disputes in the first place.
Training school personnel in communication processes could go a long
way toward preventing disputes.
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IDEA was first enacted in 1975
The goal of special education legislation over the past 30 years has been to
ensure that all children with disabilities have available to them a FAPE
that emphasizes special education services designed to meet their unique
needs and prepare them for future education.
LRE represents the least restrictive environment.
IDEA identifies the following disabilities::
mental retardation
hearing impairments
speech/language impairments visual impairments
emotional disturbances orthopedic impairments
autism
traumatic brain injury
other health impairments
specific learning disabilities
Six major principles to achieve the goals of a FAPE
1. Zero reject/child find
2. Nondiscriminatory evaluation
3. Appropriate education(IEP)/(BIP)
4. Least restrictive environment
5. Procedural due process
6. Parent and student participation
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Zero Reject is a rule against exclusion of special
education students regardless of the nature or degree of
their disabilities.
Child Find requires state educational agencies(SEAs)
and local educational agencies(LEAs) to initiate
procedures to locate qualified children who are not
being served.
Nondiscriminatory evaluation is a fair evaluation to
determine whether or not a student has a disability, and,
if so, the appropriate placement and services required
that meet the needs of the student.
Appropriate Education (Individualized Education
Plan) team consists of:
1. Parents
2. At least one general education teacher
3. At least one special education teacher
4. An LEA representative qualified to provide or
supervise special education services and who
is knowledgeable about the general
curriculum and the availability of resources.
5. An individual who can interpret the instructional
implications of the evaluation results
6. The child, when appropriate
7. Other individuals as requested by the district or
parents.
FAPE is defined in two ways:
1. Has the LEA complied with the procedures and
requirements of the act?
2. Is the IEP reasonably calculated to enable the child to
receive educational benefits?
Related and Supplemental Services include
transportation and other supportive services such as
speech-language pathology and audiology services,
counseling services, and medical services required for a
child with a disability to benefit from special education.
Medication: State and local educational agencies may
not require a child to obtain and presumably take a
prescription medication as a condition of attending
school, receiving an evaluation, or receiving special
education services.
State Tests and Graduation: The U.S. Supreme
Court has not ruled on a high-stakes
requirement. However, lower courts have
been relatively consistent of state efforts to
require that students with a disability pass
such tests as part of graduation requirements
under certain conditions.
LRE: The Supreme Court has not interpreted the
LRE provision and a consensus definition or test
for determining LRE has not emerged from the
Circuit Courts, however it is clear that IDEA
language assumes inclusion to the greatest
extent practical.
 A school district may not be required to provide
services at private schools if the student has
been provided equitable services.
 LEAs are required to pay for private schools if
disabled students are placed or referred as a
means of carrying out the IEP.
Procedural Safeguards: Procedural due process
provides the safeguards necessary to ensure
a cooperative process in which children with
disabilities benefit from school. A significant
part of this process is notice.
Once per year, parents must receive written
notice of procedural safeguards.
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Mediation: When necessary, the state pays for a third
party to assist the parents and school district in
reaching a mutually acceptable agreement.
Hearing Officer: Due process is a formal adversarial
process in which an impartial hearing officer listens to
evidence presented by both sides. Due process is
different from mediation in that there is usually a
winner and a loser, and blame is often attached to the
losing party.
Student Discipline:
FBA – functional behavior assessment
PBS – positive behavioral supports
1. School personnel may consider any unique or special
circumstances on a case-by-case basis in making
change in placement.
2. School personnel may remove a child from their
current placement to an alternative placement or
suspension for up to 10 days.
3.
4.
Relevant disciplinary codes applicable to children
without disabilities may be applied to a child with a
disability if it is determined that the behavior is not a
manifestation of the child’s disability.
Services must continue for children removed from
their current placement ( suspended, expelled,
assigned to an alternative educational placement ) for
more than 10 days. This provision is applied
regardless of the outcome of the manifestation
determination proceedings.
5.
6.
Children removed from their current placement for more
than 10 school days must receive, as appropriate, a
functional behavioral assessment, and behavioral
intervention services and modifications designed to
address the behavior violation so that it does not recur.
Can remove a disabled student who brings a gun to school
to apply to all dangerous weapons, the knowing possession
of illegal drugs and/or the sale/solicitation of the sale of
controlled substances, and/or has inflicted serious bodily
injury upon another person while at school regardless of
the outcome of the manifestation determination
proceedings.
7. Has the ability to request a hearing officer to remove a
child for up to 45 days if keeping the child in the
current placement is substantially likely to result in
injury to the child or others.
Manifiest Determination is required when a disciplinary
action results in a change in placement. The manifest
determination is a review and assessment by the IEP team
of the relationship between the behavior and the child’s
disability.
This relationship is determined by two questions:
1.
Is the behavior in question caused by, or does it have a
direct and substantial relationship to, the child’s
disability?
2.
Is the conduct in question a direct result of a failure to
implement the IEP?
If the answer to either question is yes, the conduct is a
manifestation of the child’s disability.
Functional Behavioral Assessments are “collected
information about the student, describes problem
behaviors, identifies possible causes and effects, and
develops ideas for teaching alternatives”.
Behavioral Intervention Plan is defined as “a set of
strategies, interventions, and supports the school will
provide for the student”.
Hearing Office Authority:
A parent of a child with a disability who disagrees with
any decision regarding placement, or manifest
determination, or an LEA that believes that maintaining
the current placement of the child is substantially likely
to result in injury to the child or others, may request a
hearing.
The hearing officer will hear and make a determination
regarding the appeal.
Children Not Identified: Disciplinary requirements of
IDEA may also apply to students not yet identified.
Referral to Law Enforcement: School officials are
authorized to report crimes committed by a child with
disabilities to appropriate authorities. Copies of the
special education and disciplinary records of the child
must be shared with the law enforcement agency.
Parent and Student Participation:
Parent and student participation in the process from start
to finish is part of the safeguards outlined in IDEA.
Section 504 of the Rehabilitation Act of 1973:
Section 504 is a federal civil rights law that prohibits
discrimination against individuals with disabilities in
programs and activities that receive federal funds,
including public K – 12 schools and universities.
The Office of Civil Rights enforces Section 504.