Running head: SPECIAL EDUCATION LAW
A Detailed Overview of Special Education Law
Deidre Henderson
Ball State University
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Abstract
Special education law is a broad topic encompassing topics from a variety of federal
mandates. The most common being the Individuals with Disabilities Education Act or
IDEA ’97, is the blueprint for granting all children with needs FAPE, a free and
appropriate education. Eligibility must be determined prior to placement, but afterward, a
IEP must be developed and the least restricted environment must be chosen. In the text, a
discussion is held about the implications of related services that may be required in some
IEP’s and the confidentiality of student information. Discipline was included to give
insight on how students with disabilities should be treated equal, however stipulations to
suspension and expulsions in order to ensure FAPE at all times.
Keywords: IDEA, FAPE, LRE, IEP, Eligibility, Related Services, Confidentiality,
Discipline
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A Detailed Overview of Special Education Law
Introduction
The U.S. government first took interest in the rights of special education students
in the twentieth century. During this period lawmakers were pressured to treat all citizens
as equals in the country, beginning with the Civil Rights Movement. African Americans
were the key members in demanding that every individual with unchangeable
characteristics receive complete protection by the Fourteenth Amendment. It states:
“All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law, which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws”, (United States Constitution).
Coverage in the work place was important but primarily, in the education system. One of
the greatest highlights within this time period was the landmark decision of Brown vs.
Board of Education of Topeka, Kansas (1954).
Eligibility
To receive federally funded services for students with disabilities, he or she must
be deemed eligible by a battery of evaluations and assessments. Prior to any referrals or
evaluations, the child must exhibit difficulty in one or more academic subjects or
behavior. Developmental delays that seem dramatically abnormal are acceptations to the
requirement as well. Assessment for eligibility is a main component of the entire Special
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Education Process. It equips the test interpreters with statistics of performance,
furthermore a better idea of how to diagnose the student. IEP teams that need to provide
the child with assistance can utilize the data presented to generate a uniquely designed
manner of instruction, fostering skills that lead to success in spite of the disability. Child
Find is a section of the IDEA in Part C, requiring each state to 1). Locate 2.) Identify and
3). Evaluate any individual who may benefit from special education services. The process
is in place to eliminate the academic deficits one may experience from the lack of early
intervention. Though guidelines differ by location, the objective is to provide
developmental compensation for students who are not developing as quickly or come
from at risk families. Testing should be parentally consensual, informative and calculate
developmental deficits.
“As a requirement, the IEP team shall "review existing evaluation data ...
including information provided by the parents [...], current classroom-based assessments
and observations, and teacher and related services providers observations; and identify
what additional data, if any, are needed [to meet the full requirements of disability
evaluation, service eligibility, and placement” (Quote).
States have the right to label a child as developmentally delayed up until age nine,
therefore assessments should be multidisciplinary instead of standardized, to eliminate
the misdiagnosing young school children.
Larry P. vs. The State of California
Litigation plagues all aspects of the law, and eligibility is no exception. Consider
the case of Larry P. vs. The State of California (1979). During this case, parents
complained about an IQ test that was culturally biased toward minority students and
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those with learning disabilities. During this time period, Educable Mental Retardation
(EMR) was the classification of students with disabilities. Considered to be uneducable in
general education classrooms with other children. How they scored on the IQ tested
determined their academic setting, the higher the school, the better the setting was for
learning. Larry P. was considered a child with EMR (African American Student). The
curriculum for these classes included social and functional skills, and some academia. His
parents argued against the school district in court that the test was biased toward African
American students with EMR because there was a huge disproportionality between
African American students in these classes than white children. This was the only means
of determining his academic placement. Statistics for the 1968-69 school year illustrated
that though African American Students made up only 9% of the California Public School
population, 27% of the special education was made up of blacks. The normative sample
for this IQ test was entirely white, consisting of no other race or ethnic groups. It wasn’t
until 1984 that the court ordered for California schools ban all forms of this test and find
a more diverse approach to evaluating African American students. Thereafter, the
government established the mandate that tests administered to non-white students be
valid with a normative sample appropriate for its test taker. In ordinance with the law, all
evaluations had to be non-discriminatory, have an appropriate normative sample, and
have more than one means of effectively determining eligibility for special education
services.
Effective Assessments
Effective assessment are conducive to the evaluation process for the reason that it
allows the IEP team to create plans that lessen the gap between the individual’s actual
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success and their potential performance. Parent involvement is a factor in effectively
evaluations, which complies with IDEA regulations. Natural environments have reliably
been the better setting for children because it removes any levels of stress that could be
distracting or of discomfort. Non-discriminatory evaluation is vital because it reduces any
chance of bias testing and un-valid, as well as unreliable outcomes. Relating back to the
case mentioned above, culture must be considered in the evaluation process and how
student backgrounds may affect testing outcomes.
Two types of assessment exist. The first type of measurement tool is a
curriculum-referenced test. These compare a child to his or her past abilities, track
progress, and are scored with a pass or fail. Also known as criterion referenced test,
students how perform the tasks allow insight on what they know and how much has been
mastered. Usually curriculum tests are administered to screen for any developmental
differences than the individual’s peers. Concerned parents, caregivers, or educators
usually notice behavior that contrasts from other students, and they request these
screenings. Standardized or norm referenced tests are the other. They are widely used
assessment procedure to collect information on students’ performance levels and confirm
or deny the screening examinations. It marks where a student should be performing in
reference to his or her peers. “For eligibility decisions to be based on instructional
strategies and curricular content, empirical evidence is needed about a significant
discrepancy between regular classroom procedures and those required for a child”
(Quote). IDEA states that students are eligible for special education if they fall one or two
deviations below standard means. Norm referenced tests can account for students’ level
of compared to standard means by offering a sample floor or “normality” that is
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culturally and economically diverse. Samples contain a wide variety of students of
different locals, and incorporate scores from test takers with and without disabilities.
Examples of norm-referenced tools include the Behavioral Assessment System for
Children (BASC) and the Battelle Developmental Inventory.
Teacher and Parent Collaboration
Concurring with IDEA, eligibility begins with appropriate evaluation, multiple
tools to assess, no single usage of one criterion, and factors that collect data on physical,
behavioral, developmental, and cognitive domains. In relation to the child find process,
these measures are positive for determining strategies to approach deficits and then
special education programs if more intensive teaching methodologies are necessary.
While IDEA requires for educators to work with parents, norm-referenced test in addition
to criterion and curriculum-based tests are avenues that can be combined to produce the
most accurate and valid results. Utilizing all of these federally acknowledged resources in
collaboration with human resources and communication. In the home, if a child seems to
be developing slower or different than others requesting a screening can prevent any
special education needs by early intervention. Classroom teachers and assistance can also
emphasizes collaboration among key participants, notably parents and classroom
teachers, including mutual goal setting, shared ownership, and shared decision making.
IEP
Over the course of PL-94-142 or the IDEA ’97, one major pillar that has been
called the “Heart of IDEA ’97” is the Individualized Educational Plan or IEP. In other
words, it is the document that lists in extensive detail how to provide a free and
appropriate public education (FAPE), along with delivery methods for ensuring academic
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and social goals for students with disabilities. A team composed of parents/guardians,
relevant community members, medical professionals, general and special educators and
others collaborate to develop a roadmap of what the child’s success will entail, with the
interests and contribution of the student as well. Individualized Educational Plans (IEP)
are mandated for these students and are created on a case-by-case basis by a team of i.e.
parents, teachers, and related service specialists for the student to achieve academic,
behavioral, and social goals.
Components to the IEP include:
1). The present level of performance
2). Annual goals
3). Reporting of student progress
4). Accommodations, Modification, &Support Services
5). Least Restrictive Environment
6). Participation in statewide and District Wide Assessments
7). Frequency & Duration of Services
8). Transition Services. (IDEA ’97)
While this list is very precise, there have been significant issues with the IEP.
Schools nationwide have a difficult time truly implementing the plan for students with
disabilities. Failures include “a delay in implementation […] and omission of required
portions of the IEP”. A second issue, one of great concern, is the participation of
students in the creation process. “Don’ts of the IEP” reject setting goals that are not
unique to the child and neglecting behavioral objectives. Attempting to reach those
targets without engaging the student is possible but very difficult. To avoid litigation and
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failures, IEPs need to be carried out to the best of all participants’ abilities and that
includes the students. According to Mason, Field, and Sawilowsky (2004), an emphasis
is placed on engaging the students in the process to increase motivation to achieve, and to
ensure the IEP is working. Some question the relevance of having “children” at the IEP
meeting, or how will it enhance the outcome or any decision agreed upon. A survey
conducted on the Council for Exceptional Children (CEC) website inquired the level of
student participation, responders’ comments on why this was important, and ideas for
improving non-active statistics. “Active student participation and self-determination are
areas that teachers lack training in” (Mason et. al 2004). It was mentioned that students
who are a key player in the process have a better idea of their disability and can more
assertively ask for accommodations. Instead of going through a trial and error process all
year, young people can contribute to the IEP meeting and be more aware of their
modification options. They can also collaborate with the teacher to help with
achievement. Teachers and students alike experience frustration when multiple
approaches are made to increase test scores and academic performance, and nothing
seems to work. Most survey respondents had tried informal instruction for motivating
and being accountable for ones’ own education, but admitted, “More training would be
useful”. (Mason, et al 2004). Instead of using untested approaches, possibly ineffective,
and an unproductive way to spend time, the student should provide information about
their personal academic goals. In addition, career ambitions may move the transition
process forward, and give others an idea of which teaching methods are helpful and
which are not. Until more scientific and reliable data are collected on how to encourage
and stimulate self-advocacy, recommending their involvement is essential. The
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anticipation for breakthrough research may be great; therefore, teachers must be proactive
in getting to know the child and finding out his/her learning style, personal standards, and
post-secondary educational goals. The only way to do this is to involve the IEP’s greatest
component, the student. It wasn’t a coincidence that “Secondary school teachers had
more participation than middle school and elementary education teachers”. (Mason,
Field, Sawilowsky, 2004). This however is the solution until empirical based information
is released on motivation for success nationwide. IEP teams should begin integrating the
thoughts and feelings of students in lower grade levels who currently attend meetings.
Teams will have less deliberating to do when trying to figure out how the child learns,
when the most logical thing to do is ask the student. Behavioral objectives should
include comments on what triggers disruptive behavior and then agreements on steps of
improvement and consequences of deviations. Strengths deserve a detailed summary in
the IEP as well; they can be used as foundational building blocks to lessen weaknesses.
Litigation Concerning IEP’s
If these highly influential factors had been followed in the early 1990’s, it would
have prevented the case of Doe & Doe v. Withers (1993). In 1993, West Virginia general
education teacher Michael Withers had a student with disabilities in his classroom known
as Doe. The IEP of Doe asked for the teacher to read the tests aloud. Nine tests were
administered, all without being given orally. Doe failed each test, which required his
family to pay for a second term of the history course. Ironically, when the student was
placed in a different class for the same course, and the IEP was implemented, grades rose
drastically and he successfully completed the class. During the hearing, the court ruled in
favor of the Doe’s parents. The school administrators and officials were dismissed from
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penalization because they had given Withers specific instructions to obey the IEP, which
were deliberately disobeyed. In the end, Withers had to reimburse the parents $5,000 in
compensatory damages and $10,000 in punitive damages.
The Effects of IEP’s Over Classroom Teaching Strategies
Educating a child is a hefty task, especially if the teacher knows very little about
them or their limitations. Much more research is vital to truly implementing IEPs and the
overall process of it. Until then, students need to be incorporated in the conversation so
that crucial information can be given to progress the academic, behavioral, and social
skills of every child in every meeting. Not only will it allow for better ideas of how to
approach learning barriers, but it will provide insight on effective teaching strategies. By
following every parameter of the IEP process and all guidelines stated by the IDEA,
teams are one step closer to process ensuring FAPE for every student.
FAPE
According to the Individuals with Disabilities Education Act (IDEA ’97), the law
requires that children and students with disabilities receive a free and appropriate
education (FAPE). Federal regulations describe FAPE as any special instruction and
related services which: “are provided without cost to the family” (IDEA) and funded by
the public, meets the standards of the state education agency in charge, the appropriate
academic institution within the state, and is administered in a way that conforms with the
individualized education plan that meets IDEA section requirements. An essential
components of FAPE is access to the least restrictive environment (LRE) for learning,
whether that be incorporated in mainstream classrooms or self-contained. With an
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extensive amount of legal stipulations in place, there still remains an issue with fully
providing FAPE for each child with a disability. Environmental barriers hinder children
with disabilities, which can violate FAPE, or lead to litigation that prolongs the
appropriate placement for the child. Some that are less severe include physical
limitations and perceptions of classmates of the student with disabilities. To alleviate
these challenges teachers and other school educators can collaborate with parents and
community members to determine classroom modifications. Awareness of the student’s
disability is important for all adults who are responsible for his or her success. Within the
classroom, peers can be encouraged to be accepting and supportive. Students in school
can have a substantial impact on the self-esteem of individuals around them; therefore
offering insight of disabilities that does not violate confidentiality codes can make a
difference.
Board vs. Rowley Court Case
As previously mentioned, litigation can be the result if the rights of FAPE are
breached. Consider the Board of Education of Hendricks Hudson Central School District
v. Rowley (1982). In 1982, Amy Rowley was a ten-year old girl with special needs. Due
to being hearing impaired, she required the assistance of a sign language interpreter. The
school however did not feel she needed this service. Her parents disagreed. It was evident
that Amy possessed lip reading skills, but could only comprehend sixty percent of spoken
language. This is turn was the bases for the claim; their daughter needed a full time sign
language interpreter. The school countered the argument, stating that lip reading and
necessary accommodations did in fact prove she was receiving FAPE. During the trial,
the High Court established “a basic floor of opportunity” idea. Mirroring this belief of the
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Supreme Court, the High Court made aware that districts are not responsible for
providing every child with the maximum level of services available to meet the IEP
objectives. The IDEA upheld the verdict in writing by mentioning optimal level services
are not mandated. Schools are only required to provide a basic level of opportunity with
some educational benefits.
Incorporation on FAPE
Yielding the best educational practices to all students seems quite logical, but it is
not a legal mandate. Federal education laws only oblige schools to find methodologies for
student success to some degree. Basic needs are the primary goal when an IEP is formed
and meeting these goals ensure FAPE. A specific component of the IEP, the LRE, is;
however, one decision teams must heavily deliberate upon. Classrooms settings deemed
appropriate must be the least restricting and allow students with disabilities to co-learn
with their non-disabled peers to the greatest extent possible.
LRE
Granting FAPE obliges the establishment of a student’s LRE. The intent for this
provision is to protect children with disabilities who should be educated alongside their
non-disabled peers. Make note that a regular education classroom is not always the
appropriate least restricted environment for every student and likewise students who do
need special services may not always need to be removed from the general education
setting. In fact, there is a continuum that identifies learning environments from the least
amount of peer interaction to the greatest. Students, who are able to learn in regular
classrooms where the teacher can meet all student needs, are placed in general education
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classrooms. Others may need to attend resource rooms for a designated period of time
everyday, but can perform well in class with their non-disabled peers. The most
restrictive environments are for students who are unable or not allow to attend school,
some cases include: hospitalized students, expelled students with disabilities, and those
who are residential learners. Local middle school educators and teaches reported on a
project based in their respective public New York schools. It offered reassurance that
SWDs are capable of learning side-by-side peers that did not have learning disabilities.
The first objective was to follow FAPE and all of the components that went with it.
Thousands of students in special education do not need to be there and placing them in a
more restrictive environment is more detrimental than helpful. The article written to
document the project was entitled “Including Students with Disabilities Into the General
Education Science Classroom”. Initially, it would seem farfetched to intermingle pupils
of such significant learning differences in science, however this article provided
substantial evidence and an ideal starting place for how to implement such rigorous
demands in a science classroom.
An LRE Case Study
Data was collected at the beginning of the project (not an experiment), and the
facts where dismal; “Two-thirds of students with LDs studied had at least one reciprocal
friend […] were less frequently represented in the category of teacher attachment”
(Cawley, Hayden, Cade, Baker-Kroczynski 2002). It went on to mention the belief
concerning SWDs and their academic incompetence compared to regular classroom
students; teachers were more likely to reject the students, peers were rude and uninviting
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in social activities, etc. Lastly, major issue addressed was “preventing students’ behavior
from interfering with their academic success” (Cawley et al 2002).
Contrary to the notes collected in the beginning of the project, collaboration,
innovation, and co-teaching truly set a new standard for students and LREs. The authors
were sure to make aware that typical public schools’ have underdeveloped special
education programs. Utilizing detailed criteria may aid preventing great quantities of
SWDs from being placed in the wrong LRE. This following checklist has been of great
importance and used nationwide. Unfortunately, its beginning was sparked by litigation.
Sacramento vs. Rachel H. Court Case
The case of Sacramento City Unified School District v. Rachel H. by Holland
(1994) involved Rachel, an eleven-year-old girl who was placed in special education
early on due to moderate mental retardation. Her parents requested that she be placed in
a general education classroom, and the school offered only to place here there for nonacademic, but more socially oriented course. For the remained of the day, all educational
classes were the best LRE option for her. At the hearing, to decide legislatively what the
best placement was, the court “applied a four-pronged test now known as the Rachel H.
four-factor test” (cite the book). In summary, the test listed four criteria: 1.) Is a more
restrictive environment any more beneficial than a lesser restrictive environment with the
addition of aids and services 2.) Will the social and non-academic needs of the child be
met in a more restrictive environment or the least restrictive environment 3.) Will the
presence of the child in the LRE disrupt, upset, or negatively affect the GE classroom
teacher or students 4.) What are the financial costs of placing them in a mainstream
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classroom? The final verdict found in favor of the parents. Aids and services were to be
used for Rachel in the general classroom with students without disabilities.
Ensuring Appropriate Placement
Misconceptions of children with disabilities often limit or weaken the quality of
learning in a general education classroom. Teachers need to be well informed of whom
they are instructing and updated on the current studies and information on their condition.
For FAPE to be in place, a uniquely designed education plan should be implemented to
ensure academic success. This project definitely set the standards for a truly achieved
mandate as such. Science courses may be the first class to try when integrating students
with disabilities with their non-disabled peers. Teachers and educators though need to be
diligent in working together, looking at each student as a capable individual, and
requesting help from other professionals to utilize teaching techniques, in efforts to make
all students successful. All disciplines of professionals should be considered in every
case and used as needed, including the key roles of related service providers.
Related Services
For students who qualify, their IEP may include the usage of related services.
Related services are strategies used to provide FAPE in the determined LRE for students
with disabilities. Moreover, they are categorized as “developmental, corrective or
supportive services” (Downing, 2004). Assistances such as the few described below do
not conclude an exhaustive list; however, it illustrates that health oriented conditions
must be present eligible to receive them.
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Audiology Services are administered when the student has a hearing loss and or
communication deficits. Audiologists screen students for hearing capabilities and refer
those who may be at risk for verbal interaction issues to speech language pathologist
(SLPs). SLPs then reassess, diagnose, and treat arising debilitations. Assistive
technology is a second avenue used to increase performance in the classroom. Every
student is considered regardless of special education placement for technology support.
According to the IDEA “assistive technology is any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified, or customized,
that is used to increase, maintain or improve the functional capabilities of a child with a
disability” (IDEA Regulations, 34 C.E.R. Sec. 300.5). Well-known systems that have
been openly accepted and used are screen readers, amplification systems, and math pads.
Counseling is available for the child who qualifies and his or her parent in the form of
legal guardian counseling and rehabilitation. The same service for primary care givers
affords insight on the student’s disability, which is highly beneficial for many reasons.
First, it allows an opportunity for families to make sense of what their child can do.
Afterward they can be knowledgeable of what challenges lie ahead and why. Second,
this information will propel the IEP process. Awareness of the disability by families,
teachers, and related service providers makes distributing tasks to benefit the student
easier. Advancing the IEP process with confused team members weaken the chances of
creating a foundation of support and academic assistance to get back on track. Last in
this list is therapy. Occupation, physical, and rehabilitative therapy all fall under this
category of related services. Specialists for each of these spend limited to a substantial
amount of time training a student to use their bodies in effective ways and increase
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mobility. Section 504 under the Rehabilitation Act of 1973 states that “schools are
responsible for providing the health services that are necessary for students with
disabilities to attend school […] and by a qualified school nurse or other qualified
person”. No funds; however, are allotted to schools by the government to cover these
costs. This is because IDEA and The Rehabilitation Act of 1973 are separate mandates.
Whole Qualifies for Related Services
Note that not all students with a medical diagnosis are automatically eligible for
services, it is important to understand the stipulations for receiving them. The
amendment requires that “Any person who (i) has a physical or mental impairment which
substantially limits one or more of such person’s major life activities, (ii) has a record of
such an impairment, or (iii) is regarded as having such an impairment” (29 U.S.C. Sec.
706(7)(B)). In other words, the physical ailment must affect one or more body functions,
the brain to the point of slowed learning ability, and or caring for one’s self because a
sensory or motor dysfunction. The IEP team ultimately decides whether or not the
condition limits one or more life activities. Learning is the prominent domain observed.
An example of a qualified child may be one with articulation issues. If this prohibits the
child from reading, comprehending, speaking, or understanding, a SLP is a wise related
service to implement into the IEP.
Cedar Rapids vs. Garret F. Court Case
Though many student with physical disabilities have been assisted by related
service providers, cases have risen where districts attempt to deny educating these
children due to lack of trained personnel or funding. One can clearly visualize because of
the Cedar Rapids Community School District vs. Garret F. (1998). In the case, a young
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man had been in a near fatal motorcycle accident which left his spinal cord severed. For
some time, his family attended his classes and provided him with physical assistance.
His family assumed all financial responsibility, until Garret’s mother wrote to the district.
She requested that the school district begin paying for his expenses and nursing services,
but was denied. Filing a complaint to the Iowa Department of Education, an
Administrative Law judge claimed that it indeed was the responsibility of the school
district to take full financial responsibility for the nursing staff and training for Garret.
In- Class Intervention as Necessary
To prevent the denial of rights in any way that Garret’s family was, current day
educators are responsible for explaining all possibilities for students to excel if health
related aids are necessary. The IDEA requires that students receive related services, but
only as needed. A variety of services exist, ranging from audiology assistance to
technological devices that a student can operate on their own. Only students who exhibit
physical or bodily limitations that adversely affect their ability to learn, function
independently, and those able to care for themselves qualify. As teachers, parents, and
other IEP team players, it is important to take into consideration the disability of the
student yet understanding that there is a difference between accommodations,
modification, and related services. Confusing these may limit the potential of students
that would have otherwise achieved more with the proper medical assistance. As
mentioned above, a related service is a corrective, developmental or supportive strategy
and a requirement for ensuring FAPE. Accommodations, such as time extensions,
simplified instructions, and extra help are all instances of accommodations modified test
deliveries and tailored homework assignments, are changes in materials used to test.
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Modifications on the other hand are used for more moderately disabled learners. Students
who receive these are taught a less complex level of the material covered in class, is
required to complete less homework, and have specific expectations of what is learned set
by the IEP team. Simply put, modifications are changes in the curriculum while the
others are not.
Occasionally, students who are eligible for related services and special education
in general have issues with behavior. Similar to other students, they have the same
consequences; however, IDEA created a set of directives that govern the time allotted for
he or she to be removed from school, and how to proceed with caution harsher discipline
must be exercised.
Discipline
By definition, discipline is the practice of training an individual to obey rules or a
code of behavior and enforcing consequences to correct disobedience. Subjecting all
students to suspension or expulsion describes the application of discipline across the
nation, in schools. Though each term includes a documented removal from school,
suspensions usually range between one and ten days. Expulsions mandate that the student
permanently leave the school for up to one year, though most likely, he or she is expelled
for one semester. Recently, many public schools relied heavily on these punishments, as a
first option for a wide variety of deviations. The practice has risen from the philosophy
“zero-tolerance policy”; which means academic administrations will not tolerate violent
acts or rule infractions of any sort. Such an implementation has caused uproar in special
as well as general education. Both suspension and expulsion have been considered in
significant cases “like alcohol and fighting […] to seemingly minor instances such as
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possession of Midol and nail files” (Skiba 2009). In addition, researchers have found that
students who are suspended view their punishment as just the opposite; it is a reinforcer
to their misbehavior.
Current Discipline Policies
For special education students, there are two options, long term and short term, for
discipline depending on how close they are to the ten-day rule. Whether the delinquent
behavior is caused by or totally independent of the disability, the individual is susceptible
to the consequences of their non-disabled peers. So long as the punishment does not
exceed ten days, they are treated equal. Behaviors provoked by the disability can require
a need for removal beyond ten days. At that point, an IEP meeting will be held with the
parents, teachers, school administrators, and IEP members to determine the reason for the
misconduct. The actual IEP plan needs to be amended and the appropriate placement
revised. More specifically, a behavioral intervention plan (BIP) should be created and
implemented. If there was an existing one, behavioral expectations are edited. Afterward,
students return to their original placement unless “(1) parent and district agree to a
different placement, (2) hearing officer orders new placement, or (3) removal is for
“special circumstances”” (IDEA 04). Misconduct such as dangerousness or extreme
social deviations (i.e. drug possession, weapon possession) are different cases. Once
these have been determined as independent of the disability, the student is considered for
Interim Alternative Education Setting (IAES).
Post Ten-Day Rule Discipline Alternatives
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Above, BIPs and IAES were mentioned. Both are alternatives to expulsion while
upholding the law and providing the student FAPE. “Once a student with disabilities has
been removed for more than ten school days, IDEA ’97 requires that the school district
conduct a functional behavior assessment and implement a behavioral intervention plan”
(Skeiba 2009). The student’s frequent wrongdoing must be evaluated by a series of
observations, interviews, scientific-based tests, and checklists. Combining the data will
generate a hypothesis establishing the root of the disruptive behavior. “A school may
place a student with a disability in an IAES for up to forty-five days for possession of
drugs or weapons” (IDEA 97); students without disabilities are given the same penalty
because the action is not a manifestation of a disability. Administrators have the right to
request this type of long-term removal if substantial evidence is provided. Exhibiting a
considerable likelihood that the individual will harm himself or another person are
essential pieces to having this request approved by the court system. Acts of
dangerousness do not constitute a legitimate reason to remove the child without parental
consent; districts may, however, petition a hearing officer to deny that student entry into
the school for an extended period of time.
Honing vs. Doe Court Case
Litigation has become nearly automatic when disciplined has resulted in a
violation of FAPE. Consider the case of Honing vs. Doe (1988). In a California school
district, Superintendent of Public Instruction (Honing), expelled two emotionally disabled
students (Doe et. al) for disruptive behavior and violence. All educational services were
revoked and the parents exercised their right to Due Process, for FAPE was being
violated. Furthermore, Honing infringed upon the Stay Put provision, which states “that a
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child cannot be moved from his or her current educational placement during appeal”
(IDEA 97). The prohibited placement change disobeyed the least restrictive environment
(LRE) mandate of the IDEA as well. Consequently, this case “set the precedent that
students with disabilities may not be unilaterally removed for disciplinary reasons beyond
ten days without educational services or an alternative educational placement” (Hulett
2009). Students with disabilities who are expelled or removed for long periods of time
are protected by IDEA, which does not condone a “cessation of services”. Regardless of
the new placement setting, students must continue receiving services provide by the
district.
Positive Interventions
Encouraging positive alternative to negative behavior should be the first resort for
students with disabilities and general education students alike. Suspension and expulsion
are increasingly being used for deviations that are minor compared to their harsh
punishment. Applying in class strategies to combat undesirable actions will not only help
students with disabilities but their peers, especially in inclusive classrooms. The
Comprehensive Model of School Violence Prevention is an approach that is divided into
three levels. The first recommends that educators create a school wide positive
environment with connections between students and adults. Teaching programs that give
insight on alternatives to violent outlashes. Skiba mentions: unambiguous behavioral
standards, peer mediating, bully prevention, and assertive classroom management
strategies. Next, schools should use scientific based methods to target students at-risk
whom may use more forceful tactics during times of adversity. Anger management and
mentoring are ideas that would greatly benefit each student’s life skills alongside the
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growing safety of the others in the school. Lastly, in response to disruptive behavior,
“options might include functional assessment, restorative justice, community based
services, school based mental health services and crisis management strategies” (Skiba
2009).
In the Classroom
To avoid as much violence and misbehaving as possible, teachers and academic
colleagues can incorporate the model mentioned above in every setting. Collaboration is
a key factor in resolving issues provoked by anger, just as it is for alleviating
wrongdoings manifested by the child’s disability. As educators, it is important to
maintain a safe learning environment for all students, yet utilizing the appropriate
disciplinary measures to correct behavior without violating educational rights.
Furthermore, children with disabilities who consistently act out may have documents that
fall into their student record. Confidential records by law demand that only certified
adults know, view, and handle the information.
Confidentiality
The Family Educational Rights Privacy Act, commonly known as FERPA, was
first passed in 1974. Such an act greatly and positively affected many students and
families with special needs. Privacy of health and academic information had been legally
deemed highly critical because “unless confidentiality is protected, students will not
come forward with their problems and thus not receive the help they may need” (Howe,
Marimontes 1992). This monumental document contains four parts that describe the
ways to ensure confidentiality is maximized and funding policies as well. The first part
explains how to comply with all FERPA sections to continue receiving funding.
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Secondly, parents must grant consent to their child’s academic institution when
administrators are making placement changes for the student. The following section
expounds upon the federal funding and the denial of any monetary assistance to schools
that do not restrict student records to unauthorized parties. Lastly, it states that agencies
conducting any sort of national educational research follow strict guidelines for to protect
all students whose information is used, and that no identifiable information is disclosed.
In reference to the FERPA 74 Act, identifiable information is any piece of
evidence “related to a student and maintained by the institution or by a party acting for
the institution are considered education records” (FERPA 74). One can also explain this
information to any parent or IEP member as “any personally identifiable information
about a student’s past or present health and developmental status” (IDEA 1997).
All information categorized as confidential whether it be personal information like name
and address, or health diagnosis is done so because it is not appropriate to share with the
public. It is private because it may carry the potential of causing harm to the family if
misused by an unauthorized individual.
Newport-Mesa Unified v. State of Cal. Dept. Of Ed.
Another case that laid current day precedents was the trial of Newport-Mesa
Unified V. State of California Department of Education. Rather than improper testing
assessments, California school districts found themselves in fault of violating an
educationally based law and a federal law. The question was whether or not schools had
permission to give parents a copy of the test protocols used to evaluate their children, as
the IDEA states and violate the copyright laws, and contrarily vice versa.
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Mr. Anthony Jackson had seven-year-old son that required special education
services. Prior to the testing, he requesting a copy of all measurements used to evaluate
his child at the IEP meeting. His request was denied. Mr. Jackson invoked due process
and filed a complaint stating it was a right for him to have these materials for “fair use”
within five days of his inquiry. The counter claim issued mentioned that it was against
copyright laws to distribute the test protocol to anyone under any circumstances. After
the test creators were summoned to court and extensive mediation, FERPA subsequently
added:
“Accordingly, if an educational agency or institution or participating
agency maintains a copy of a student's test answer sheet, then it must provide the parent
with an explanation and interpretation of the record, which could involve showing the
parent the test question booklet, reading the questions to the parent, or providing an
interpretation for the responses in some other manner adequate to inform the parent."
The priority in this case was to underscore the importance of both copyright laws
and the rights of parents with children in special education. Mediation settled the case,
thus compromising between the two parties.
Authorized Personnel & Consent
As far as the IEP meeting goes, where all of these individuals will meet at once,
“discussions can be held about the student’s functional abilities regarding educational and
service needs […] but if the IEP meeting focuses on medical or clinical diagnoses, one
can run the risk of violating FERPA (cite). Educators and administrators must be sure to
include all parents and care givers that consent must be given to all outside parties that
wish to access the student’s health records. Members not associated with the IEP team or
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authorized school personnel may be: parents of the student, who do not have primary
custody, agencies conducting research, or any person of legitimate educational interest.
While the concept of legitimately interested individuals may seem simple, the crucially of
being sure is one of great importance. A person has legal access to review the record only
if it will satisfy their professional responsibility. These school personnel can range from
principals to teachers aids, as long as the information they request will beneficial and
educationally related services to the student for contract fulfillment objectives. Parents
have the right to request student records that, by law, needs to be accessed within fortyfive days. Prior to the refilling of any document requested, parents and students over
eighteen have the right to challenge data collected that may be viewed as inaccurate. In
regards to releasing information to agencies and organizations, written parental consent
must be given to release information about the student in special education under the age
of eighteen. One amendment of FERPA states that schools have the freedom to disclose
any identifiable information inquired by: a court order, documents containing abuse,
federal agencies that are auditing or evaluating financially supported programs,
emergencies that will directly affect other students’ safety, income tax documents,
institutions looking to enroll the student, and any agency doing educational studies that
agree to adhere to confidentiality standards and agree to destroy all student information
immediately.
Brief Overview
Overall, confidentiality is a concept that developed from ethical principles. It is a
foundation for building, facilitating, and maintaining healthy relationships in special
education. To remain in good standing with the law, professional responsibilities and
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families, educators and others who work with students in academic settings must be
cognizant and empathetic to the privacy of those they serve.
Conclusion
Overall, the course influenced my decision to incorporate everyone in the
community and taught me to collaborate with all IEP team members. Individuals who
have an interest in the child will be given a role to support and further the success
potential; along with carrying out the requirements of the IDEA. My responsibility is to
guarantee the child’s FAPE, a free and appropriate education. Embracing all of the
student’s significant community members, IEP team members, parents, and families
alike, a very uniquely designed instruction will be generated, implemented, and enforced.
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References
Cawley, J. Hayden, S. Baker-Kroczynski, S. 2002 Year. “Including Students With
Disabilities Into the General Education Science Classroom.” Exceptional
Children Vol. 68, (No. 4): pp. 423-435
Daniel R.R. v. State Board of Education, 874 F.3d 1396 (9th Cir. 1994)
Doe & Doe v. Withers. (1993). IDELR 422
Downing, J. (2004). Related Services for Students with Disabilities: Introduction to the
Special Issue. Intervention In School & Clinic, 39(4), 195-208.
FERPA (1975)
Honing vs. Doe, 479 U.S. 1084 (1998)
Howe, K., Miramontes, B. O. (1992). The Ethics of Special Education. New York, NY:
Teachers College Press
Hulett K. E. (2009). Legal Aspects of Special Education. Upper Saddle River, NJ:
Pearson.
Individuals with Disabilities Education Act (Education for All Handicapped Children Act
1975), Pub. L. No. 94-142, 89, Stat. 773
Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984)
Mason, C., Field, S., Sawilowsky, S. (2004). Implementation of Self-Determination
Activities and Student Participation in IEPs. Exceptional Children, 70, 441-451.
Newport-Mesa Unified v. State of Cal. Dept. Of Ed. 371 F.Supp.2d 1170 (2005)
SPECIAL EDUCATION LAW
Reppeto, B. J., Gibson, W. R., Lubbers, H. J., Gritz, S., Reiss, J. (2008). Practical
Applications of Confidentiality Rules to Health Care Transition Instruction,
Remedial and Special Education, vol. 29 (Number 2) Pgs. 118-126
Sacramento City Unified School District v. Rachel H. by Holland, 14 F. 3d 1398
(9th Cir. 1994)
Sealander, A. K. (1999) FERPA: Basic Guidelines for Faculty and Staff A Simple Step
by Step Approach for Compliance. Professional School in Counseling, Vol. 3
(Number 2), Pg. 122
Skiba J. R., Special Education and School Discipline: A Precarious Balance Behavioral
Disorders, Vol. X (Number Y) Pg. Z
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Personal Philosophy
Special education law has been quite an insightful course that has taught me the
discrepancies of some legal protocols and how to fulfill the requirements of others. IDEA
and Article Seven have become important documents that identify and clarify any
question I may have about students’ rights and those of their families. The most
importantly concept in my opinion was how to ensure that every student in special
education receives FAPE.
My knowledge about related service specialists has modified my perception about
how each person of interest could benefit the student. Incorporating learning strategies
from multiple developmental domains into everyday activities is a strategy that I admire
and use often. According to the IDEA, IEP teams are to do the same. Working together to
guarantee the least restrictive includes classroom accommodations, collaboration between
general educators and special educators, along with families. Furthermore, it is my
objective to integrate teaching strategies into everyday activities for my special education
students. For example, if a student has a reading disability, I would urge for all IEP team
members to ask the student to read different words in different environments including
stop signs, menus, and age appropriate advertisements. Not only will this show the
student he or she is supported, but that individuals reading skills will increase in more
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than just academic settings. Within the classroom, dialogic reading is a strategy I learned
about to minimize any limitations they may have.
In regards to LRE, my main source of guidance will come from the Rachel H.
Assessment that asks:
1. Is a more restrictive environment any more beneficial than a lesser
restrictive environment with the addition of aids and services
2. Will the social and non-academic needs of the child be met in a more
restrictive environment or the least restrictive environment
3. Will the presence of the child in the LRE disrupt, upset, or negatively
affect the GE classroom teacher or students
4. What are the financial costs of placing them in a mainstream
classroom?
If a student in a general education classroom and that specific LRE is being
disputed, my goal will be to co-teach or exhaust all push in services first. Later, the
general education teacher and I will evaluate the success of these methods and once that
is unsuccessful, a change of placement will be made.
Maintaining similar academic expectations and behavior across all macro systems
will increase the opportunity for success. The student will learn to be respectful and
behave in a way that can be observed. Therefore if a deviation occurs, the student’s usual
behavior can be analyzed in comparison to the situation that triggered unacceptable
behavior.
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When addressing eligibility and assessment, I found that using a transdisciplinary
methods is the ideal way to collect valid data and determine placement from there. All
children learn and develop at different paces; however, there are some similarities.
Normative samples help identify those congruencies while providing information by
students of diverse backgrounds and SES’s. Litigation is bound to occur, resembling
[insert Spanish girl and wrong test court case]. As a special education teacher, I would
strongly recommend a list of assessments be administered (i.e. doctor’s records,
interviews, observations, screening and diagnostic assessments).
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